HomeMy WebLinkAbout1983-0058.Abbott.84-08-2958183
63183
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOAR0
Between: OPSEU (Lloyd W. Abbott)
Before:
For the Grievor:
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
G. Brent Vice Chairman
D. Anderson Member
G. Peckham Member
Employer
A. Ryder, Q.C., Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer: J. P. Zarudny, Counsel
Crown Law Office Civil
Ministry of the.Attorney General
Hearings: May ia & 25, 1983
June 22, 1983
July 12, 13 & 14, 1983
September 15 & 29, 1983
October 15, 1983
. 'December 9 & 21, 1983
DECISION
On or about January 25, 19’84 the Board released the following to
‘_
the parties: \
This case is one which deals with grievances
relating to a ten day suspension and discharge. It
has taken -several’months to bea-r all of the
evidence and the argu-ment. Following the
completion of the case the members of the panel met
to discuss and consider the evidence and the
submissions of the parties, and through this means
reached-a consensus regarding the ultimate
disposition of the matters in dispute and the way
in which this:disposition ought to be communicated
to the parties. Because; of .the nature of the
dispute and the time~which has already passed since
the commencement of the case, it “as determined
that ~the parties should be informedimmediately of
the Board’s decision, with reasdns.in full to
follow. What follows is ‘the decieion of the Board
regarding the disposition of ,the matters in dispute
listed under the appropriate file numbbr.
‘. File Number 58183
This grievance relates to a ten day suspension
which was imposed on the griever for reasons set
out in.a letter dated November 17; lY82 (Ex. 44).
~It~is our conclusion that the allegation that
the griever “did not properly lock cell U6 of 5BL
corridor” on or about October 15, 1982.ha.s not been
proven. We consider that this ‘“as by far the most
serious of the allegations before us.’
It.is our conclusion that, although the
grievor “as pod officer’on October 6, 1982 and can
thereby be said.to have had ,some responsibility for
knowing where inmates were, ‘the culpable action for
which we hold discipline warranted Is failure to
check the interview room when engslged in the inmate
count with his relieving officer. This failure led
to the need to have a recount.
It isfurther our conclusion that on October
15, 1982 the griever failed to conduct a proper
shift changeover by not participating in the
required activities with the relieving officer, and
that this is cause for discipline. We do not
consi’der the matter of the shift changeover
certificate to be a cause for discipline under the
circumstances presented to us.
,, ’
3
It is therefore our conclusion that, given all
of the circumstances of this case, including the
griever’s record of discipline, there is just cause
for a suspension but that it should be
substantially less than ten days.
File Number 63/83 ---
This grievance concerns the griever’s
discharge for the reasons set out in the letter of
Uecember B, 1982 (Ex. 2).
.It is our qpinion that most of the allegations
set oat against the griever can and should be
viewed in the context of the most serious, that is,
his interview with the inmate. We accept that the
griever was misinformed by another officer
concerning certain allegations which the inmate was
supposed to have made against the griever. We can
understand and appreciate the concern which the
griever would have when told about the allegations.
We find that his actions when he set out on his own
initiative to interview the inmate were
inappropriate, and we do not condone his conduct of
the interview. This is a serious matter and should
be treated as such. We consider that his actions on
November 25th were improper but do not constitute
just cause for discharge.
We do not consider that any of the other
allegations made agsinst the griever regarding his
conduct that night would be just cause for
discharge, and in particular, we consider that most
of the allegations concerning failure to log have
been shown to be so out of line with the practice
of most officers that it would be unreasonable to
hold the griever to a higher standard than that
which other officers meet. We do, however,
consider that the griever’s logging habits are
somewhat sloppy and that, in particular, he should
have indicated on the log when he was absent from
his area on the third level and another officer was
respoosi ble for it.
It is our conclusion that the employer has
shown just cause for discipline but tnat, under the
circumstances, discharge is excessive.
Disposition of the Board ---
In view of the above cooclusions, the Hoard
orders the following:
1. That the griever be reinstated
,4
forthwith with his seniority $ntact and
that his record be amended to reflect the
penalties which are substituted for .those
grieved.
2. That the matter of the proper
penalties to~,be assessed to.the griever
be remitted to the parties .to be agreed
on by them, keeping in mind. and being
guided by the Board’s conclusions set out
herein.
3. That in the course of ,their
discussions the parties consider the
appropriateness of making the
correctional officer training courses
available to the griever, and any other
matter which they consider may assist him
in returning to work as a productive
employee.
4. That the Board will remajn seized of
the matters of penalties and compensation
should the parties be unable to agree.
In determining these matters, should it
have to do so, the Board reserves the
right to ask for further submissions from
the parries in a ~manner to be determined
by the Board at that time.
By letter dated February 3, 1984 the Board was informed that the
griever had been reinstated effective January 30, 1984 sod that the
parties had been unable to resolve the, matter of the disciplinary
penalty which should be substityted for the original discharge. The
Board then requested additlonal submissions regarding penalty from the
parties. The last of those submissions was received on April 16, 1984.
As the Board has already indicated, this case took several days and
a great deal of evidence was heard. In the interest of brevity we do
not propose to catalogue all of the evidence which washeard, but only
to summarize the evidence which we considered relevant to the
determina.tion of the matters before us. We will deal with the evidence
first and then set out our conclusions concerning the appropriate
disciplinary action which should tie taken.
.1
5
Before dealing with any of the allegations made against the
grlevor, we should note that there were some exhibits in this case which
must not be distributed. At the request of counsel for the Employer we
therefore make the following order regarding those exhibits:
All documenta, photogapha end plana introduced as
exhibits in this ease vi11 not be copied of
distributed by anyone privy to the proceedings.
Counsel undertook to return or destroy any documents or photographs :
which were no longsr needed for the purposes of this case.
File No. 50183 ---
The griever was suspended for ten days In November, 1902. The ;.
allegations made in relation to that suspension are set out in the
disciplinary letter dated November 17, 1982 (Ex. 44) as follows:
(1) on or about October 6th, 19B2 you did not
properly log an inmate’s movement, and
fur the r ,
(2) on or about October 6th. 1982 you did not ,! conduct a proper innate count and shift
changeover, and further,
(3) on or about October 15th, 1982 during the
evening lockup procedure you did not properly
lock cell $6 of 5BL corridor, and further,
(4) on or about October 15th, lY82 you did not
conduct a proper shift changeover, and
further,
(5) on or about October 15th, 19g2 you knowingly
submitted a false shift changeover certificate I
We will deal with those allegations in the order in which they are set :,
out in the letter.
(I) On or about October bth, 19M2 you did not properly log an inmate’s ;
mOveDEnt
On October 6, IY82 the griever was assigned to work as officer-in-
6
charge of 4B pod on the 07:OO .to 15:00 hours shi.ft. Mr., Smith was
assigned to the pod with the griever during that shift. .Immedkately
prior to IS:00 hours the griever was relieved as officer-in-charge by
Mr. McComb. Simply speaking, in order to accomplish a proper shift
changeover the officer being re1leve.d and the relievingofficer must
accompany one another and do a head count of the inmates,.,a. general
security check, and sign a changeover certificate. This is a shared
re sponsi bi li ty. The griever and Mr. McComb jointly carried out this
procedure.
The log book entries for the pod for that shift (Ex. 12) show no
entry for the removal of an inmate from the cell.area to the,%interview
room. The griever and Mr. McComb neither checked the interview rpom nor
did they realize that they were short‘an inmate. As a result, a recount
had to be held and the inmate was discovered in fhe interview room.
Although Mr. Phillipson was of the view that the griever had
admitted moving the inmate to the interview room, the griever denies
making such an admission and also denies having moved the inmate. The
griever maintained that he only indicated that he was not sure if he had
moved the inmate but that he admitted having overlooked him during the
changeover. Mr. Smith, who was never questioned during the Employer’s
investigation, testified that he had moved the inmate and had not logged
the movement. He also said that he did not tell the griever that he had
moved the inmate. Mr. McComb also testified that he was told by
Mr. Smith that the latter had moved the inmate.
We can see no basis for disciplining the griever for not logging an
event in the absence of any evidence that he knew or could have known
that the event had occurred.
7
i2) On or about October 6th, --- 19b2 you did not conduct a proper inmate --
count and shift changeover ---
The background for this allegation has been set out above. There
is no doubt that the griever and Mr. McComb were jointly responsible for
carrying out a proper inmate count and shift changeover and that they
failed to do so by overlooking the Inmate sitting in the interview room. ,,
The inmate could have been seen had the officers checked the interview
room. The interview room was within the ares which they should have ‘,
checked.
We agree that this allegation was proven and that the griever’s
conduct was culpable. We do not, however, consider that the griever’s :I
conduct was any more culpable than Mr. MeComb’s, because there is no I!
evidence that the grlevor ever knew of the inmate’s presence in the
interview room. The matter is one of two officers being carelesa in not ,,
checking the interview room during the course of doing their inmate head ‘.
II
count. The Employer did not take any disciplinary action against I,
Mr. McComb; he did receive a trai,ning interview (Ex 9).
(3) On or about October 15th, 1982 during the evening lockup procedure I, _ --- -
you did not properly lock cell U6 of 5BL corridor -- -----
There is no doubt that the griever was the officer responsible for i;
the evening lockup procedure on the night in question and, in ‘!
particular, thst he wds responsible for locking cell #6 of 5BL corridor. 1,
We further accept that that cell housed two dangerous offenders whose !j
security would be a matter of concern to the Employer, the officers on
duty, the other inmates, and the community at large. There i a also no I
doubt that the cell door was found open after midnight by Officer Melers 11
when he did his third clock round.
The Employer’s case depends on our acceptance of its hypothesis
that the most reesonable explanation for the cell door belng,found open
was that the griever failed to lock it. In support of its case the
Employer has produced evidence that~ the lock was”functidning properly
and that the movements of the keys can be accounted,for,, as well ss
evidence from all other officers’who were in the ares. There can be no
doubt that the Employer’s hypbthe6is is a reasonable one;’ however, it is
at odds with all of the direc’t evidence given by the Employer’s
witnesses who were in the area when the cell was allegedly left open or
when 1 t was later checked. Mr; Meiers, the’dfficer who relieved the
griever, inspected the cells on the changeover and did two ciock rounds
prior to finding‘the door open.. He said that he pulied the door’s lock
cylinder on those occasions and believed it to be secure and locked.
Mr. t&iers also testified that he is very careful about checking locks
since he had once been’involved in a situation where he received a
training interview for failing.to check to see if a cell door was
locked. Mr. Holgate, the support officer on the pod with the .grievor,
testified that he saw the griever put the key into the lock of cell ‘#6
.SBL and go through the motions of locking the door when the last inmate
was put in the cell. He also testified that later he witnessed the
griever pull on the lock cylinder of the door and the door appeared to
be secured then.
The griever testified that he locked the cell door and checked it,
His evidence is fully corroborated by that of Mr. Meiers and Mr.
Holgate, who testified for the Employer. Whatever discrepancies there
may be in the evidence about when the inmates went into their cells,
there isnothing to contradict the assertions of those officers that the
door was checked and found to be securedafter the griever had left the
9
institution and after both of the inmates were inside the cell.
Accordingly, we cannot conclude that the griever failed to lock the cell
door. There is therefore no basis for any discipline on this
allegation.
(4) On or about October 15th, 1982 you did not conduct a proper shift - --- --
changzove r
There is no doubt that on October 15, 1982 the grfevor failed to
accompany Ur. Meiers on the ah1 ft changeover when the latter came to
relieve him at the end of his shift. We find that the griever was ;
obliged to accompany the relieving officer and to conduct a tour of the I
area and inmate count with him, and that the griever did not do this. ‘.
The griever was present in the ares and there was no good reason why he
could not have performed his duties in relation to the changeover.
The only explanation which the grlevor gave for failing to j
accompany Mr. Meiers was that he was unaware of Mr. Meier’s presence
until the latter had almost completed his tour of the ares. Under the
circumstances, when Mr. Melers first became aware that the griever was
not going to accompany him, he should have insisted on the griever’s
presence, or when the griever realized that Mr. Mefers had almost
completed the ah1 ft changeover, he should have insisted that the two of !
them begin again together in order to ensure that the procedure was ;:
carried out properly.
We consider that the Employer has proven this allegation and that
the griever can be discjplined for his failure. We should note that the ‘:
Employer took no disciplinary action against Mr. Heiers for his failure :
to perform the procedure properly; he received a training interview /,
(Ex. 4M).
I.
10
(5) E or about October 15th, 1982 you knowingly submitted a false --
shift chaneover certificate
The shift changeover certificate I’s worded so that it’ is the
incoming officer who is certifying that he relieved the outgoing officer
and did an inmate~count with him. The body of the cer;ificate in
question (Ex. 31) is reproduced belqw with the ,parts filled in by hand
indicated by underlining:
This is to certify that on Ott 15 1982 at 2300 -- hours I relieved Correctional Officer Mr. Abbott
andafter takinga count with him2 inmates ware
accounted for in the area I took charge of, namely
5BL / 10 5BR / 9. We both find this accounting to
G-corre c t . Accompanied by Correctional Officer
Mr.‘Abbott I examined the security equipment and
found it to be:
[Beside categories Doors, Gates, Bars, Windows, and
Locks the boxes under the heading “In Good Order”
are all checked.1
Num~ber of keys handed/taken over by the
undersigned: 11 Keys
-R. A. Abbott” ‘a. Melers”
Correctional Officer ~Correctional Officer
relieved from duty assuming duty
Given the wording of the certificate, we cannot consider that the
I
certificate is that of the officer being relieved from duty. We
consider that the certificate is that of the officer assuming duty and
that the primary responsibility for the truth of its contents must be
with that officer. we also take note of the evidence that the Employer
uses the same form of certificate in situations where it knows and
accepts that there are not two officers properly engaged in the
changeover procedure and therefore condones the filing of what can
technically be considered to be “false certl ficates” under some
circumstances. Under all of the circumstances we cannot consider that
the griever should be disciplined for this matter.
II
File Number 63183 ---
The gricvor was discharged by letter dated December 8, 1Y82 (EX. 2)
for the following reasons, as set out in the letter:
(1) on or about November 25th, 1982 during the
afternoon shift you left your assigned post
without proper authority, and further,
(2) on or about November 25th, 1982 during the
afternoon shift without proper authority you
had an inmate removed from lockup status, and
fur the r ,
(3) on or about November 25th, 1982 during the
afternoon shift you acted in an unprofessional
and improper manner towards an inmate, and
fur the r , P
(4) on or about November 25th, IY82 during the
afternoon shift you were insubordinate towards
a supervisor, and further,
(5) on or about November 25th, 1982 during the
afternoon shift you failed to make proper log
book entries, all the foregoing contrary to
tiamilton-Wentworth Detention Centre Standing
Orders. !
&fore dealing with each of the five alle@tions individuelly, we
consider that in order to appreciate the events of November 25, 1982 It
is necessary to look at what occurred as a related series of events. As
can be seen from the date, the griever had recently returned to work
after serving a ten day suspension. On November 25th he was asked to
work a double shift, and the afternoon shift was the second complete
shift he worked that day. The griever had never had any prior contact ’
with the inmate referred to in allegations 2 and 3, who will be referred ”
to as Inmate F in tnis award.
The griever was assigned to work in the Segregation Unit on the ’
a fte moon shi ft. Sometime around 6:UU p.m. he received a telephone call :
there from Mr. Bevan, the local Union president, informing him that he
had been named in a letter as having arranged for Inmate P to be ‘:
12
assaulted and asking him if he knew a’nything about it. The grie.vor
testified that he told Mr. Bevan that tie did not know Inmate F. He then
said that he started to worry about the alle’gation and after a while
decided that he would go up to the pod where ‘Inmate F was housed and see
the inmate.
At the time in question there wa.ti no-e0 3 on duty on the afternoon
shift in the area where the griever was working. He gad his keys to
Mr. Craig, another CO’2 who was working in the Admitting and’ Dischargz
Area, and went to the 3rd level. There he was admitted to the floor by
Mr. Watson and was told by him where Inmate F was housed.’ The grlevor
.did not tell Mr. Watson why he was pa the 3rd level and Mr. Watson did
not ask. Tbe griever then proceeded to the pod and asked Mr. Roud if he
could speak to Inmate F. Mr. Rood did not ask why the griever wanted to
speak to the inmate and the griever aid not inform him of.th@ purpose of
the visit. At that time Inmate F was on “lockup status” which, simply
speaking, meant that he was l’ocked in his cell and not allowed out to
mix freely with the other inmates. The griever testified that he did
not know of Inmate F’s status, and there is absolutely no evidence to
show that he could have known of .that sta,tus.
Mr. Roud removed Inmate F from his cell, accompanied him to the
interview room, and opened that room for the griever. ‘The griever and
Inmate F then went into the interview room together and Mr. Roud
returned to his duties. Inmate F was seated at the table in tbe room
and the griever stood across the table from him with his foot resting on
the other chair. During the course of their conversation the griever
ascertained that Inmate F had confused him.with another officer whose
name also began with the letter ‘A”and Inmate F apologized for the
error. At this point the griever indicated forcefully to Inmate F that
if he was going to make allegations of that sort he should get the names
right or his face would be made “part of his shirt”, or words to that
effect. When saying this the griever struck the table with hi 8 hand and
made a noise loud enough to be heard outside the interview room.
Inmate F testified that the griever’s hand passed close by his face on
1 ts way to the table. He also said that the griever was getting angrier
and angrier during the interview and that his voice was Fttlng *ouder.
The griever denies that he was angry during the interview. At no time
during the interview did the griever touch Inmate F in any way. Inmate
F testified that he was shocked and felt threatened by the griever’s
behaviour.
When the griever struck the table with his hand both Mr. Roud and
Mr. Featherstone, the CO 3 on the level, went to the interview room.
They saw the griever and Inmate F in the room. They did nothing to
bring the interview to an earljer end and the griever simply left the
room. While Mr. Roud escorted Inmate F back to his cell, the griever
told Mr. Featherstone that he had come to speak to Inmate F because of
the report Inmate F had made using his name. Mr. Featherstone then took
the griever back to his office, showed him the report which Inmate F had
written, and indicated that the report said nothing harmful about the
officer and that he knew that the inmate had not meant to refer to the
gri e var. The griever then returned to work. Hr. Featherstone said
that he believed that the griever was still a little “steamed”about
being named in the report. Mr. Featherstone also testffied that if he
had known that the griever wanted to see Inmate F, he would have allowed
the interview to take place in his presence so that Inmate F could
explain the situation to the griever. He also said that he had never
. .
14
known the griever to be aggressive toward inmate’s; however, upon
learning why the griever was upset, he understood how someone could
react in that way.
Mr. Featherstone said that he continued with his duties until
around 7:00 p.m. when he decided to go to see the griever.. The two of
them met and spoke in the fingerprint room which is near the Segregation
unit: The exchange there forms the basis ~of the allegation of
insubordination against the griever. We will deal with that later.
Mr. Featherstone returned to his area. He testified that around
g:50 p.m. Mr. Ransom (OM 15) came to see him and asked him for a report
on what had occurred, because he had just come from spending thirty to
forty minutes speaking WI th the griever. Mr. Featherstone later said
that ‘Mr. Ransom had knowledge of the incident which he assumed came from
the griever and that he understood, that’ the griever had gone to
Mr. Kansom to complain about his behaviour in the fingerprint room. He
said that Mr. &nsom wanted to know why he had gone to see the griever.
At 11:OO p.m. he wrote a report of the incident for Mr. Ransom in which
he accused the griever of insubordination for the first time.
Mr. Ransom said that he first learned of the incident involving the
grievar and Mr. Featherstone from Mr. Featherstone at 8:50 p.m.~ He said
that he did not know where Mr. Featherstone got the impression ‘that he
had just come from an interview with the griever, and he did not recall
any conversation with the griever before speaking to Mr. Featherstone.
He said that he called the griever to his office sometime within a half
hour of 8:50 p.m.
According to the griever his conversation with Mr. Featherstone in
the Fingerprint Koom took place at around 8:55 p.m. and he met with
15
Mr. KansOm at around 9:25 p.m. after having had him paged. He
specifically denied that Mr. Ransom initiated the interview and asserted
that he wanted to talk to Mr. Ransom because he was upset at the way in
which Mr. Peatherstone had talked to him. He also said that when he
spoke to Mr. Kansom the latter had not yet heard of the Featherstone
incident and learned of it from him.
Mr. Craig, who was on duty as the clothing officer in the Admitting
and Discharge Section that afternoon, testified that he saw
Hr. Featherstone in the area shortly before 9:00 p.m. He also said that
,
he saw the grlevor and Mri Featherstone go into the Fingerprint Koom /
tog? ther.
We will now deal with the specific allegations as set out in the
letter. I
(1, &IJ or about November 25th, 1982 during the afternoon shift you left : -:
your ass1 gned post without proper authori ty I
There is no supervisor in the area on the afternoon shift. While !,
the griever could have asked Mr. Ransom for permission to leave the
area, we accept the evidence of the officers who testi fled that when
there is no direct supervisor on duty i t is not the custom to seek out
the shift supervisor to get permission to leave the area. While this
may be a rule, and while it may be understood to be a rule by I
management, there is no evidence before us to show that it was :
consistently enforced on the afternoon shift. In fact, no one in
authority mentioned this particular rule breach tu the griever any time ‘I
that night when he was known to have beenavay from his assigned post ‘I
without permission. we do not consider that discipline would be j
appropriate under the circumstances.
(2) 00 or about November 25th, 1982 during the afternoon shift wf thout - --- -
,
16
proper authori ty’you had an inmate removed from lotikue’ status
We read this allegation as emphasizing the fact that the inmate was
on “lockup status”. Tdere is absolutely.no evidenc?e to indicate that
griever knew or was ever to’ld’that the inmate was on lockup status.
There is no evidence’ from which. to conclude that the griever could have
suspected that the inmate was on, lockup status. If an o.fficer has no
knowledge of an inmate’s status or no reason to suspect what his’status
is, then it is In our view unreasonable to pe’nalize him for removing the
inmate from that status. In so saying we do not suggest;.nor have we
ever suggested, that the griever is blameless in fhls affalr; it is
simply that when the allegations against him are separated and outlined
with such speci fici ty, we consider that it Is appropriate to examine the
evidence with care to ensure that the allegations as written can be
supported. This allegation cannot be supported.
(3) On or about November 25th, 1982 during the afternon shift *acted _ --- --
in an unprofessional and improper manner towards a” inmate -- . -
In our view this .is the most serious allegation against ,the
griever. We have already outlined the facts which relate to this
allegation. In our view there is very 11 ttle significant difference
among the accounts given by the witnesses concerning this incident.
That is to say, we have absolutely no reason to believe that any
correctional officer, including the griever, is trying to hide any facts
from the Board or trying to mislead the .Board.
Inmate F testified that he felt threatened. Inmate F IS
significantly smaller than the griever. He had also recently been
involved in any incident with a fellow inmate and it would be reasonable
to accept that he had some apprehension about his safety in general.
17
Given all of the circumstances, it is quite probable that he vould feel
threatened by what was said and done In the interview. By the same
token, it is also reasonable to believe that the griever did not intend
to threaten Inmate F with any physical harm. There is no reason to
doubt Mr. Roud when he testified that the griever appeared normal to him ,,
before the interview began and did not display any obvious signs of
an&r. It is reasonable to conclude that if either of the two officers
who saw the griever before the interview had noticed anything unusual in
In his demeanour or if they had any apprehension about the safety of the
inmate they would have done something to stop the griever. It is also
significant that Mr. Featherstone, the officer in charge of the area,
did nothing to bring the interview to an early end when he heard the
griever’s hand hit the table, and that in the subsequent conversations I.
with the griever he did not crltIcIze the griever’s behaviour in the ,,
interview but rather the fact that the griever came up to the area :
without first seeking his permission or speaking with him. Surely If
the grievot’s behaviour with the Inmate had been so obviously I
threatening In nature then Mr. Featherstone and the other officers would ’
have noticedsomething was amiss.
The Roard has no doubt that the griever should not have interviewed ;
Inmate F on hi 8 own. For an officer to Interview an inmate alone
regarding a perceived accusation against himself is to create a
I
situation which Is fraught with danger to everyone concerned. Such ,I
encounters should be avoided at all costs for the protection of both the ‘j
inmate and the officer. In this case, while we can accept that the
~ grlevor did not intend to harm the inmate, that he did not touch the
inmate, and that he did not intend to threaten the Inmate with any harm,
we must also recognize that he exercised extremely bad judgement in
18
allowing a situation to occur where the inmate could reasonably
apprehend that he was being threatened and in acting in a, manner which
could reasonably be apprehended as being threatening. This Incident
represents a serious lapse of judgement by an experienced correctional
officer .and justifies an appropriate disciplinary response.,, -,
(4) On or about November 25th, 1982 a the.afternoon shift you were - --- ---- -
insubordinate towards 5 supervisor
We already have outlined a few of the facts which relate to this
allegation. The alleged insubordination took place during the meeting
between Mr. Featherstone and the griever in the Fingerprint Room.
Before dealing with the evidence relating to that interview, it is clear
that there is confusing evidence concerning when the intervIew took
place and who first mentioned the interview to Mr. Ransom. Both the
grlevor and~Mr. Featherstone appear to agree that the griever went to
Mr. Ransom to complain about Mr. ,Featherstone’s behaviour before
Mr. Ransom spoke to Mr. Featherstone.. On the other hand they disagree
completely concerning the time of the interview.. Mr. Ransom’s account
of how he learned of the incident differs from both the griever’s and
Mr. Featherstone’s;, however, he and the grievor agree concerning the
time of their discussion and he and Mr. Featherstone agree about the
time when they had their discussion. At the same time both the griever
and Mr. Craig agree that the interview took place around 9:OO p.m. and
this conflicts with Mr. Featherstone’s evidence.
If Mr. Craig and the griever are right about the time that the
meeting in the Fingerprint Room took place, then it is reasonable to
accept that Mar. Ransom did learn of the matter first from the griever.
If that were the case then both Mr. Ransom and Mr. Featherstone were
wrong about the time that they first discussed the matter. On the other
hand, if Mr. Featherstone is right about the time of the meeting with
the griever, then 1 t is quite possible that he was the first person to
discuss the 61 tuation wl th Mr. Ransom; however, this does not explain
how he concluded that Mr. Kansom had already been talking with the,
griever. There is no reasonable way which we can see of sorting out the
I,
conflicts in the evidence. Each witness’s testimony both agrees WI thy
and conflicts with some other witness’s to such an extent that we are
unable to conclude who told Mr. Ransom about the incident first and when:
that conversation took place.
There is no doubt that at some time during the evening the griever;
and Mr. Featherstone met alone in the Fingerprint Room.‘.
Mr. Featherstone is a member of the bargainlog unit; however, it is:
agreed that on the night in question he was a person in authority whose
order the grlevor should have obeyed and that a failure to obey the
order would be insubordination.
AS with the evidence regarding the time of the meeting and the:
originator of the first complaint to Mr. Ransom, there are significant.
differences in the accounts given by Mr. Featherstone and the griever.:;
Mr. Featherstone testified that he considered that the griever was still!
“steamed up” about being named erroneously in the inmate’s report when”
they spoke on the third level, and that he wanted to wait until the
griever had cooled off before speaking to him about entering the level.
without prior permission. According to Mr. Featherstone he vent to the:.
Admitting and Dischare area sometime after 7:00 p.m. and asked to speak:
to the griever in the Fingerprint Room so that they could talk
privately. il
Mr. Featherstone said that he told the griever that Inmate F had’
made an honest mistake and that in future the griever was not to come up
to his floor,wfthout first seeing him. He ~said that ~the griever
responded in a loud voice to the effect that he would see any Inmate at
any time if his name was involved and tha,t he did not have to get
permission from anyone. Mr. Featherstone then said that he..told the
griever, “I’m warni’ng you, don’t do it again.” According to
Mr. Featherston~e the griever then left the room and walked toward the
desk, where there were two or’ three officers. Mr. Featherstone
testified that he was following the griever and heard the griever say in
a loud voice that he would see any inmate at any time and would not have
to get permission to do so. Mr. Featherstone said that he then said to
the ‘griever again, “I’m warning you, don’t do it again.” He said that
he was sure that the other staff members in the area heard the
conversation in the hallway.
Mr. Featherstone said that he had not yet made up his mind what to
do about this encounter when he left the area. He said that he
considered the griever to have been insubordinate but had not yet
decided whether to write a report on the ,matter. He denied having said
anything to the griever about whether the matter would or would not go
any fur the r. Mr. Featherstone said that he wrote the full report
because be was told by Mr. Ransom that the griever had complained about
his behaviour and he did not consider that the griever had any cause to
complain about him.
The griever said that shortly after 9:OO p.m. Mr. Featherstone came
to the Admittingand Discharge area and asked to speak to him in the
Fingerprint Room. He said that Mr. Featherstone began by stating that
he had gotten Inmate F to correct the name of the officer’who had been
21
named in the letter and then said, ‘took, I’m warning you the next time
you come to my level get my permission.” The griever said that he
replied, “We never had to get CO3 permission before to speak to an
inmate,” and that Mr. Featherstone then became angry, pointed a finger
at him and said, ‘took, I’m warning you.” The griever said that he then
started to leave the room and they both walked to the counter, where
there were other officers standing. According to the griever, when they
reached the counter Hr. Featherstone said, “I’m warning you, the next II
time you want to see an inmate get permission. This won’t go down on
paper.” In cross-examination the griever also said that ”
Mr. Featherstone gave him the same order three times, becoming I
progressively angrier, that following the first or second time the order
was given he said ‘Ok”, and that Mr. Featherstone should have realized :
that he was accepting the order. ‘I
The griever testified that he felt embarrassed that ;I
Mr. Featherstone vould raise his voice in front of other staff members I
and an inmate who was just being admitted. He said that if he ever had .;
to work on a level where that inmate was housed such an incident could
affect the respect which an inmate might give to an officer. He
testified that he then went to see Mr. Ransom to speak to him about the :
incident.
The griever agreed that Mr. Featherstone was giving him a direct
order concerning circumstances when permission to enter a level was ,:
I
needed and that he was obliged to obey the order if it was a lawful 1’
order. He testified that he was accepting Mr. Featherstone’s order and I I!
that he had no intention of going to the level to speak to the inmate ’
again and that Mr. Featherstone should have realized that he was
accepting the order.
22
;.
Mr. Craig was called as a wl,tness by the Employer. .Hls account of
the, .time when the interview took ~place between the griever and
Mr. Featherstone coincides vi th the,grievor’s evidence.. He testified
that he saw the two men gq into the Fingerprint Room and then ,saw them
come out together a few. minutes later. He said that when they were
walking toward the. counter ,where he was. working he heard
Mr. Featherstone say, ‘I!m just warning you. This.is not going on
paper. ::
The discrepancies in th.e evidence whi.ch we heard makes a
determination of this allegation very difficult. Mr. Craig, -,wh” “as a
witness for the Empl~oyer, seems to corroborate much of the griever’s
account of what occurred. . Their evidence coincides regarding the time
when the meeting took place and also regardi,ng.the.,remark about the
matter nor being recorded ‘on paper”. Because Mr. Craig was not .present
in the Fingerprint Room he cannot help us deal,with the discrepancies
regarding the conversation there and its tone...
There is no doub,t that, as he himself admits, the griever was
obliged to accept and obey a d,i.rect order given to him by
Mr. Featherstone. It is reasonable to accept that the exchange between
the two men became somewhat heated and that, even if the griever did
accept the order as he testified he did, then communic,ation of that
acceptance became lost in the heat of the exchange. It is therefore
probable that Mr. Featherstone never actually received any message from
the griever which would indicate acceptance of his order. It is also
probable, given the circumstances, that the message was never clearly
given.
There is a strong suggestion in the evidence that Mr. Featherstone
.
23
made a statement to the effect that the alleged insubordination would
not be reported. Mr. Craig’s evidence confirms the grlevor’s In this
respect. There is also a strong suggestion that the griever considered
chat he was being dealt with unreasonably by Mr. Featherstone and that
the order was unreasonable. That would appear to be the basis of his
complaint against Mr. Featherstone to Mr. Ransom. One suspects that
there would have been no complaint of insubordination made against the :
griever had he not complained to Mr. Kansom.
If there was any insubordination here, it occured during a heated :,
discussion in which both participants may not have been exercising
perfect self-restraint. Further, it was of a very minor nature, since I’
there is no indication of any failure to act according to directions ‘:
given, the officer who gave the order said that he was not even sure
that he was going to report the incident, and the dispute was not .I
carried on with the officer giving the order but rather a complaint was
lodged with a superior officer about the propriety of the order. Given
the discrepancies in the evidence aod the indication to the griever that
the officer to whom he was allegedly insubordinate was not going to make
an official complaint about his behaviour, we are not satisfied on
balance of probanilities that there is sufficient evidence before us to
justify upholding the disciplinary action taken against the griever for !
his conduct toward Mr. Featherstone.
(5) On or shout November ZSth, - --- 1982 durine the afternoon shift you :: -
failed to make proper log book entries --
There is no doubt that the griever’s logging practices generally ,,
leave much to be desired. There is also no doubt that when the log II
books are viewed as a whole the griever is not the only correctional
officer who does not make what would be considered to be proper log book
24
entries in light of the institution’s standing oruers. It .would appear
from the~evidence that log books are the sor~t of documents that are
viewed after somethlng.out o,f the ordinary has occurred in order to try
to piece together what occurred when and who was there at the time.
There is no evidence which indicates that supervisors routinely examine
log books and point out lapses to the officers making entries.
Supervisors are required to make entries into log books when they enter
areas and, as in the case of the griever’s logs, they appear to make
their entries without examining the log to determine whether the officer
has followed the proper logging procedures.
When the log entries for the Segregation Unit were being examined
by Mr.. Brennan, the regular supervisor in the area, during the course of
his testimony he admitted quite candidly that if someone wanted to find
logging mistakes it would be possible to find mistakes and build a case
.
against~ any officer. Mr. Brennan also knew of no case where an officer
had been disciplined about logging. Further, it Is clear,~that the
griever was not in the Segregation Unit at periods during the shift when
tours of the unit should have been done, either because he was on a meal
break or on another level seeing Inmate F. During those times his
duties were being covered by another officer, who would be responsible
for some of the lapses in logging, yet nothing was done to bring those
failures to that relieving officer’s attention.
Without belabouring the point, it is clear to this Board that to
.discipline the griever for his improper logging would be to hold him to
a standard of logging which was not being uniformly enforced by the
Employer throughout the institution, and therefore the discipline can
not be allowed to stand for the failure to log properly.
25
Conclusions regarding penalty
He fore dealing specifically vi th the penalty which will be
substituted for the ten day suspension and the discharge, there are some
general comments which may be appropriate at this time.
There is no doubt that the Employer considers the griever to be an
unsatisfactory employee. There is also no doubt that the griever’s ~
previous disciplinary record would tend to lend some support to the
Employer’s view. In relation to the discharga case the Employer brought
five allegations against the griever which appeared to give both serious ‘:
matters (conduct toward an Inmate) and much less serious matters ! I
(logging practices) equal weight. Clearly all of the allegations should
not be treated equally, yet in dealing with what is essentially one ’
incident which occurred on one night the Employer so analyzed the events
that it appears to have exaggerated the importance of minor matters ;
while downplaying the importance of more significant ones. When one ”
undertakes such a detailed analysis and recitation ofevents without
apparently considering their relative weight, one takes the risk of P
leaving the employees and others who read such allegations with the :
impression that the employee concerned is being treated unjustly and :
unreasonably, in that his minor faults are being treated out of all
proportion to the degree of fault involved.
During the course of the hearing we heard some evidence relating to
the Investigation which was carried on by the Employer. one employee, ,’
who was a probationary employee at the time of the investigation, was ;
left with the distinct impression that his future in the institution
would be jeopardized because he related a version of the events which ’
accorded with his best recollection but not with the version which the
senior officer interviewing him wanted to hear. Counsel for the
26
Employer learned of this employee’s apprehensions dnd quite properly
took steps to have the employee reassured that his future had not in
fact been jeopardized and that the parties were only interested in
ascertaining the truth about what had occurred. It is clear, however,
that the investigation which was carried out was one which was more in
the nature of a police investigation than a personnel investigation.
While it may arguably be reasonable for a police officer to make such
suggestions while trying to question someone whom he believes is not
telling him the truth concerning events relating to a criminal
investigation, it is difficult to see where such conduct fits into a
personnel matter of this sort; There was never any suggestion of a
criminal act on the part of the griever. The employee’s recollection-of
events was not out of line with anyone else’s version of the facts;
there fore, there was no reason ‘to suspect that he was lying or covering
up for anyone. He gave the same evidence before this Board, under oath
and as a witness for the Employer, as he gave in his report t’o the
senior officer concerned.
We have had a great deal of ref-rence to the so-called “code of
silence”on the part of the officer6 in this case. While it may be
naive to suggest that no such code exists, there was no evidence of it
operatingin this case to prevent us from learning what had occurred.
All of the officers who testified appeared to be forthcomingand, in
relation to the most serious allegation against the griever, there were
no significant discrepancies in’any of the testim~ony which we heard. We
could detect no “cover up”here. What was apparent was that officers
may tend not to regard as offences or inappropriate behaviour matters
which the Employer regards in that‘li-ght;‘,however, that is not to be
27
entirely unexpected. One may be forgiven for commenting, though, that
when an Employer is perceived by employees to be carrying out an unfair
or prejudiced investigation it would not be surprising to encounter
employees who are even more reluctant to relate their recollections oft
events.
In relation to the ten day suspension which was meted out against
the griever we have concluded that the most serious of the allegations
was not proven but that the griever could be properly disciplined for
failing to check the interview room in the course of the shift
changeover and for failing to perform a proper shift changeover on
October 15, 1982. The griever’s record indicates that was disciplined
on April 1, 1982 for “failure to complete a proper shift changeover”and
“failure to communicate verbally or in writing the lockup of a prisoner
thereby contributing to an institution recount”, at which time he
received a two day suspension. That suspension was not grieved. We
consider that in view of the similarity of the conduct and the recent
two day suspension a five day suspension is justified. Accordingly, we
allow the grievance in File Number 58/83 in part and reduce the ten day
suspension to a five day suspension. The griever’s record will be so
amended, and he will be fully compensated without any loss of income or
other benefits for the five days’ pay which he lost due to the
suspension.
The dischare grievance Is one which is more difficult to deal with
and one in which our deliberationsabout how to dispose of the matter
were not really made easier by the great disparity in approach toward
the penalties taken by the parties. We consider that the griever’s
actions in interviewing Inmate F exhibit a serious error in judgement on
his part and one which is disturbing in a senior correctional officer.
28
On the other hand, it is not difficult to have some appreciation of why
the griever decided to engage i.n such foolhardy conduct. He had just
.’
returned from serving a long suspension and it is natural that he would
be concerned when he was told that he had been mentioned in an inmate’s
report as the correctional officer who was supposed to be involved in a
plot against the inmate. Certainly, It would be a matter of concern to
any officer and especially to one who was already under a cloud because
of his disciplinary record.
,’
We have nb doubt that the griever should not have been discharged.
.- ‘.
We have already ordered his reinstatement and that reinstatement
:
occurred at the end of January, 1984. In a matter such as this we
consider that the matter’of the award of compensation to the griever
__.
sh&d be separate from the question of any substituted penalty.
:
Counsel for the Employer referred us to the decision in Re North York --- i
General Hospital and Canadian Union of Public Employees, Local 1692 - -- --
(1982), 6 L.A.C.(3d) 368 (Teplitsky) and we-‘would like to cite with
approval the following passage from pages 372 and 373:.
I think it dangerous to leave the suggestion ,. that a seven-month suspension is a” appropriate ~.
disciplinary response by an employer to particular
conduct. There is no sense to suspensions of such
length. Lengthy suspensi ens only~ se~rve to punish
the employee and often the employer. Any. employee
who deserves to be excluded from the work place for
seven months deserves to be terminated.
One should recognize that when arbitrators
reinstate without compensation they are not
substituting a long suspension for a discharge.
They are not suggesting that a long suspension
would have been the appropriate penalty at the time
the employer dealt with the matter of discipline.
Arbitrators are simply exercising their discretion.
in those cases in refusing to award compensation to
the griever. The issue of compensation, as’ a
significant question, arises primarily because of
the delay in concluding arbitrations. If
29
reinstatement is appropriate, we would do so if the
case were heard within a month or two of the date
of discharge as opposed to six or seven months from
that same date. The question of compensation
really involves a decision ss to who should bear
the loss caused by the delay in concluding a
hearing, a delay which usually cannot be attributed
to either party. . . . . . . . . .
Mr. Teplitsky then went on to state that In exercising his discretion,
if he considered discharge to be within a reasonable range of
disciplinary responses he would not require an employer to compensate an I
employee.
In this case we also prefer to separate the question of substiruted
penalty and compensation. We will deal with the question of ?
compensation as purely a matter of determining how much of the loss
which occurred as a result of the delays inherent in the arbitration I
process should be borne by the respective parties. The griever was
discharged effective December 3, 1YM2 and was reinstated effective .,
January 30, 1984. There were eleven days of hearing between May I8 and ;
December 21, 1983. He was therefore out of work for almost fourteen !,
months - so@x five and one half months before the hearings commenced. ~
We do not consider that discharge was a reasonable response in this i,
61 tuation, there fore, if we were to adopt Mr. Teplitsky’s general rule /,
regarding how one ought to view reinstatement without compensation, we ‘,
would not reinstate without compensation in this case. The question :;
then becomes one of how the monetary burden should be shared.
Even though the loss occasioned by the normal delay in the Ii
arbitration process is one which cannot be attributed to either party,
when faced with a situation where an employee has been unjustly ‘1
discharged and where the discharge is beyond the range of reasonable I
penalties we cannot ignore the fact that a significant portion of the
7
c i
%
30 :
loss can be directly attributed to the Employer’s misjudgement of the
sit”.3ti**. It is therefore unreasonable to expect an employee, even one
who is at fault, to shoulder all of the loss resulting from the delays
inherent in the system when the Employer has decided to discharge when
such an action would be viewed as an unreasonable response and when it
has taken roughly eight months for the hearing to be concluded and to
e f~fect his reinstatement. We are not pretending that we can begin to
apportion the loss in any, scientific fashion; however, in view of all of
the factors set out in this award, we consider that the griever should
be awarded compensation for lost salary and other benefits for the
period from July 15, 1983 until his reinstatement on January 30, 1984.
The griever’s disciplinary .record should not show a suspension for -
the period between Decembe.r 3, 1982 and July 15, 1983. Rather than be
taken as quantifying the pena~lty which we ,would consider to be
appropriate for the griever’s action, we prefer to order that the
griever’s record be amended to show that he was given a “long
suspension” for the matters which we have found were appropriate for
di sci pli ne. His full seniority will also be restored to him.
We do not consider that it is appropriate to place any condj tions
on the griever’s reinstatement. We have already recommended that the
Employer make available to him and that he avail himself of courses so
that he can return to duty as an effective correctional officer, and we
assume that this has been or will be done.
We will remain seized of the matter should the parties be unable to
agree on the amount due to the griever.
31
DATED AT LONDOU, ONTARIO MIS 29th
_-
- ’ Gail Brent. Vice Chairman
Dan Anderson. Member
-