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HomeMy WebLinkAbout1983-0117.Gaston.88-01-08\ Between: Before: IN THE PUTTER OF AN ARBITRATION Under THE' CROWN RMPLOYRES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENRNT B0AR.D File # 117/83 For the Griever FOR THE ENPLOYER: J. F. Benedict Manager, Staff Relations & Compensation Human Resources Branch Ministry of Correctional Services OPSEU (Thomas Frederick Gaston) Griever and The Crown In Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman I. Freedman Member G. J. Milley Member S. Goudge Counse 1 Gowling and Henderson Barristers and Solicitors April 23, 1987 DECISION In respect of the penalty of dismissal imposed on him, the grievance of Thomas F. Gaston was remitted to this Board by the Divisional Court in its judgment of May 7, 1986. Mr. Gaston was one of six employees at the Metropolitan East Detention Centre who~were suspended in December, 1982, and dismissed in January, 1983, on various charges including a charge / of using excessive force against an inmate, one Stalteri. A panel of this Board was constituted to hear all grievances of the six employees. Consolidated hearings were held throughout 11 days inBay, June and July of 1983, during which 28 witnesses were heard and 84 exhibits received. BY a majority decision dated December 5, 1983, three grievors were reinstated, but suspensions were imposed on them until December 31, 1983 (approximately one year) by reason of the secondary charges L relating to non-disclosure. In their cases, the charges of using excessive force were found to be not proven, but it had been established that they unlawfully concealed information required by the Ministry of Correctional Servic,es Act. In the case of Thomas Gaston and two others, the Board's conclusions were that all four charges had been proved and that dismissal was the appropriate penalty. -3- ( An application for judicial review was heard by the Divisional Court on February 7, 1986. Writing for the majority in his judgment of May 7, 1986, Mr. J~ustice Henry said: So far as the secondary charges are concerned, it is my opinion that there was evidence to support the decision of the Board with respect to all six grievors. Neither on the main charge nor on the secondary charges is this a case in which this Court may intervene. i I am in agreement with Trainor J. that dismissal was unreasonable for Gaston and that that matter should be remitted to the Hoard. The application is otherwise dismissed, but in the circumstances there will be no order for costs. Thus the only issue remitted is that of the dismissal of Mr. Gaston, which had been upheld by this Board. It is clear that the Court did not absolve Mr. Gaston of responsibility for the major offence with which he had been charged, but the Court held that the penalty of dismissal was unreasonable in his case. Further, as appears in the first sentence quoted above, "as far as the secondary charges are concerned" it was held that "there was evidence to support the decision of the Board with respect to all six grievors," which includes the case of Gaston. The Divisional Court did not direct that the matter be dealt with by a panel differently constituted. However for reasons which included the untimely death of Mr. E.R. O'Kelly in December, 1984, it became necessary to establish the present panel, two of whom were not members of the previous panel. -,4 - The court having held that the dismissal was unreasonable, the only issue now is to determine what would be a more appropriate penalty, which necessarily implies a lesser penalty. Mr. Goudge, counsel for the Grievor, suggested that a lengthy suspension would not be appropriate, having regard to what was said by the Court and also the penalties given other 1 grievors who were reinstated but had to accept suspension for non-disclosure. Counsel argued that a suspension of three or four years would be excessive, citing the observations of Mr. Justice Trainor, who said at pages 16-17 of his judgment: The Board’s finding that Gaston used more force than necessary in the day roanmay not bs a conclusion I would reach but it is supported by the evidence, leaving aside the evidence of the inmates’ reaction. The Board had the benefit of seeing and hearing the witnesses. It was obviously in a better position than I am to determine what was reasonable force and that which was excessive. It is clear that the Board did not attribute any of Stalteri’s serious injuries directly to Gaston. When the o%ardly blows and kicks were administered Gaston released his hold on the inmate. Given his youth and inexperience, the fact that he was more open and candid than other officers, and that his participation in the day roan can best be described as an ovenealous reaction in a potentially .explosive situation, I conclude that dismissal, was an unreasonable penalty. I would remit the matter of penalty to the Board even though T find the Board had before it, evidence to support the ‘finding it made on counts 1, 2 and 3. It was further suggested by counsel that Mr. Gas ton should be reinstated as of July 1, 1984, which would be the i -5- ( equivalent of an 18-month suspension from December 31, 1983, when three of the other grievors were reinstated. For the Employer, Mr. Benedict submitted that if dismissal be thought an excessive penalty, the Grievor should be reinstated into a "substantially equivalent position," but without compensation. Mr. .Benedict was of course referring to subsections (41 and (51 in Section 19 of the Crown Employees Collective Barqaininq Act, in which the relevant language is as follows: - (4) Where, in exercising its authority under subsection (31, the Grievance Settlement Board finds that an employee who works in a facility, (a) has applied force to a resident in the facility, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident, the Grievance Settlement Board shall not provide for the enployment of the employee in a position that involves direct responsibility or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the employee in another substantially equivalent position. (5) In subsection (41, (al "facility' mans, . . . . . . . . . (v) a correctional institution under the Ministv of Correctional Services Act. - Mr. Benedict also commented that according to his own testimony, Mr. Gaston may have been relatively inexperienced in Ontario in that he had served with the Ministry for less than a . -6- ! year, but previously he had worked as a correctional officer at Calgary, Alberta, for more than two years. ReferrFng to page 146 of the Board’s decision, Mr. Benedict said all three judges in the Divisional Court had upheld the findings against Mr. Gaston on three charges, and ‘their reasons for remitting his case related solely to that of the first charge --- ‘using excessive force.” Even on that charge, I the Court had held there was. evidence to support it. He concluded that the penalty should correspond to the gravity of the offence. In reply, Mr. Goudge argued that Section 19(3) of the Act did not apply because in his opinion the Court had not found excessive force was used. As to the last point it must be said at once that: (1) The Grievor was charged in writing on January 12, 1983, that he had “participated in the use of excessive force on inmate Stalteri, G.” (2) The Board concluded at page 146 of its decision that “all four charges against Thomas Gaston have been proved.” (31 The Divisional Court was unanimous in holding that there had been evidence to support the charges of non- disclosure. . -7- (41 In his dissenting judgment Mr. Justice Trainor said: "The Board's finding that Gaston used more force than necessary in the day room may not be a conclusion I would reach, but it is supported by the evidence, leaving aside the evidence of the inmates' reacti0n.l The majority of the Court ~agreed with him that the penalty of dismissal was "unreasonable" in the Gaston case, but "the application is otherwise dismissed." It 'is clear from the foregoing that the Grievor was found to have "participated in the use of excessive. force" and that the Court held there was evidence to support that finding. It is therefore idle to pretend that subsections (41 and (51 in Section 19 of the Crown Employees Collective Bargaining Act do not apply in this case. Clearly, the Grievance Settlement Board has no authority under the statute to reinstate the Grievor in his former position or in any position involving contact with residents in a Correctional institution. i At the same time this Board must accept the Court's view that dismissal was unreasonable in the Gaston case, and this can only mean that a lesser penalty, in other words a suspension, would be more appropriate. A difficult question therefore arises: the length of the appropriate suspension. I 2 ’ - 8 - L We cannot accept the argument that an 18-month suspension following December 31, 1983, would be adequate. That argument discounts entirely the very serious view of the offence expressed by the Legislature in Section 19(4) of the governing Act. The intent obviously is to deny the offender all future contact with inmates. For that reason, it is impossible to reinstate the Grievor in any position specified by the Act. It is only possible to reinstate him in “another substantially equivalent position,” which has been done in certain other cases. According to a statement by his counsel, the Grievor has been steadily employed since shortly after his dismissal but “has been losing between five and seven thousand dollars a year --- approximately. V This is a matter which can best be settled between the parties: if not, either may apply for a further hearing. When the Act refers to “another substantially equivalent i. position,” it is understood the salary payable must be approximately equivalent to that of a correctional officer. It may be difficult for the Ministry to find a position in which there is no opportunity for contact with inmates, but in light of the Court’s decision, that is what must be done. The offence ,of using excessive force on an inmate was found by the Board to have been proved, and the Divisional court ( 9 ., _ - 9 - did not disturb that finding.~ The offence, as made very clear by Section 19(4) of the governing Act, is an extremely serious one and calls for a severe penalty. We must therefore conclude that the Grievor shall be reinstated in a "substantially equivalent position as of June 1, 1986," with compensation for his net losses as and from that date. This may appear to represent a suspension of unusual length. It is important, however, for all correctional officers i to understand that the legislation and this Board do not condone the use of excessive force against .any inmate. Moreover, the Ministry had no reason to reconsider the Gaston penalty until May of 1986. If the parties fail to agree on compensation, either may ' apply to the Board for a further Dated at Toronto, this 8th day of Januaky , 1988 .$7 b&LL+ G. J. Milley -'Member