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HomeMy WebLinkAbout1983-0446.Vetter.84-06-28Between: Before: IN THE MATTER OF AN.ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Jan Vetter) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.J. Roberts Vice Chairman K. O'Neil Member W.A. Lobraico Member For the Grievor: D.I. Bloom Counsel Cava~lluzzo, Hayes g: Lennon Barristers 6. Solicitors For the Employer: J.F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services Hearing: February 20, 1984 AWARD 2. In this arbitration, the grievor, an experienced Correctional Officer, was suspended for one 12-hour shift for "deliberate and obvious refusal to adhere . . . [to] hospital and escort jail standing orders." Letter of Discipline to the grievor from F.R. Gill, Superintendent, Whitby Jail, dated May 19, 1983. At the hearing, the Union raised on behalf of the grievor the following two questions: (1) whether there was cause to discipline in the circumstances; and, (2) whether there was cause for the severity of the discipline which was imposed. For reasons which follow, we conclude that there was cause to discipline but that in lig,ht of the circumstances the discipline was too severe. The grievance is allowed to the extent of substituting a written warning for the suspension. On April 4, 1983, the grievor was assigned to guard an inmate, Mr. J. Perdue, at Oshawa General Hospital. Mr. Perdue had been assigned a room in the Isolation Ward of the hospital because he had suspected infectious hepatitis. It fell to the grievor to guard Mr. Perdue during the day shift, which at the Whitby Jail is a 12-hour shift, for the duration of his stay in the hospital. 3. At about 2:45 P.M. on April 9th, Mr. Frank Gill, the Superintendent of the Whitby Jail, went on a routine visit to the Oshawa General Hospital to visit Mr. Perdue and his escort. As he was walking down the hall toward Mr. Perdue's room, he noticed the grievor in another room, which was two doors down from the room in which Mr. Perdue was being kept. The grievor appeared to be standing close to the bed. When he saw Mr. Gill, the grievor came out of the room and joined him in the hall. He attempted to talk to Mr. Gill. Mr. Gill was not in any mood for conversation. He told the grievor as they were walking down the hall toward Mr. Perdue's room that he was required to keep the inmate in full view at all times. When they reached the room, Mr. Gill went about his routine duties. He signed the Hospital Log Book. He then checked out the restraints on the inmate and talked with him for about 5 minutes before leaving. As he left, Mr. Gill advised the grievor that he was required to submit a report regarding why he was not at his post. Mr. Gill added that he would collect the report on the following day. Shortly thereafter, the grievor drafted the following report: 4. Sir, On Saturday the 9th of April, 1983, you arrived at the Isolation Ward (9th floor) of the Oshawa General Hospital at approx. 1147 hrs. Upon your arrival I was outside of room #9116 [the inmate's room] where I just had washed my hands with disinfection skin cleanser and exchanged the green hospital clothes for a new one. Before leaving the room I checked the inmate, who was lying in bed, relaxed and very quiet. Both sets of leg irons were in place. The Isolation Ward is very quiet, you can hear any movement the inmate makes. I am aware that the inmate has to be observed at any given time and I will follow the order as stated in instructions for hospital duty. In this report the grievor did not offer an excuse for leaving the inmate's room. He merely pointed out several circumstances which he apparently considered to be mitigating factors. On May 13, 1983, there was a disciplinary meeting regarding this incident. Those present included the grievor, his Union Representative, Mr. Gill, and a representative from the Personnel Department. The meeting lasted 35 to 40 minutes. The grievor did not testify as to what went on in this meeting. Mr. Gill testified on cross-examination that at the meeting the grievor offered for the first time an excuse for leaving the room. According to Mr. Gill, the grievor said that he had a bad case of diarrhea and had to leave the inmate's room to find a bathroom that was not contaminated with infectious disease-carrying organisms. He stated that he could not reach the Jail I ;i 5. with his walkie talkie and could not get an outside line on the telephone in order to call the Jail. Mr. Gill further testified on cross-examination that ,the grievor told him that he did not attempt to contact the hospital staff in order to have a nurse or orderly watch the 'inmate while the grievor was absent from the room. According to Mr. Gill, the grievor indicated that he had on previous occasions tried to contact a nurse but this time he had not done so. On May 19, 1983, Mr. Gill sent to the grievor the following letter of discipline: Mr. J. Vetter Correctional Officer 2 Whitby Jail 200 Victoria Street, West Whitby, Ontario LlN 663 Dear Mr. Vetter: On Way 13, 1983, you attended a meeting with the undersigned to respond to the allegation that YOU were negligent in the performance of your duties when you failed to provide proper super- vision to an inmate assigned to your care while on hospital duty on April 9, 1983. During our meeting you and your representative acknowledged that you did in fact leave inmate Perdue in Room 9116, unattended for a period of time. It was acknowledged that you could not use the washroom facilities in Room 9116 be- cause inmate Perdue had infectious hepititis. YOU therefore chose to enter an occupied Room 9112 which was not quarantined to use the wash- room facilities. Your representative explained that because you had to go to the washroom and because you were unable to attain hospital staff backup (i.e. nurse or orderly) to watch inmate Perdue on three previous occasions, you assumed you could not get coverage in this incident. 6. You further acknowledged that you did not notify the institution by two way radio or by telephone. It was acknowledged that no log entry was made by yourself recording your absence from your assigned post. You and your representative further outlined that in your opinion inmate Perdue was not a violent offender and emphasized that you ensured the offender was handcuffed and leg ironed to the bed, resting quietly, before you left him unattended. Your representative outlined that in consideration of the circumstances, and the background of the inmate a backup person was not required. I cannot accept your explanation that you could not secure backup relief in this instance because YOU were unable on previous occasions to do so. Obviously, there 'were several alterna- tives you could have explored, i.e., summoning hospital staff via nursing call button in the room or telephoning the shift i.e., in the Jail, etc. YOU acknowledged you were fully aware of the hospital and escort standing order, also, Mr. P. Gill, Superintendent, Whitby Jail, fully reviewed escort procedures with you on April 5, 1983 which was recorded in the log book, when he visited the hospital as duty officer. In addition, your observation that inmate Perdue was non violent was totally contradictory with a separate log entry made by yourself upon Mr. Gill's instruction April 5, 1983, stating, "Inmate has a history of violence! Caution!". Your failure to carry out the required procedures of this institution produced a situation which could have resulted in a serious breach of security by deliberately leaving this inmate unsupervised. Clearly, as an experienced Correctional Officer YOU should be well aware of the importance of vigilence and adherance to proper escort procedures outside the institution. It is your sole duty as escorting officer to directly maintain or ensure constant surveillance of the inmate thereby ensuring protection of the public and the inmate under your care. As escorting officer YOU are individually responsible for the security and supervision during hospital escort duties. Unlike the Jail environment no immediate Correctional Officer backup is available if the inmate attempts escape, is assaultive or commits any range of security breach. Constant surveillance and control is of paramount importance.. . . 7. Due to the serious nature of this incident and your deliberate and obvious refusal to adhere with hospital and escort jail standing orders, it is my decision to remove you from the payroll for one 12 hour shift. Furthermore, I have instructed Mr. M. Cronin, Institutional Staff Training Officer, to meet with .you to review and instruct you on all the proper procedures relating to hospital ahd escort procedures. I am confident that following your instruction there will be no question in your mind as to the necessity for complying with institutional procedures future hospital escort assignments. during In conclusion I must advise you that future incidents involving your failure to comply with institutional standing order will result in more severe disciplinary action. Yours truly, P.R. Gill Superintendent The grievor was suspended for one 12-hour shift, according to this letter, because of ,"the serious nature" of the incident and his "deliberate and obvious refusal" to.follow hospital and escort jail standi ng orders. Except' for one important circumstance, the grievor's testimony at the hearing coincided with Mr. Gill's account of what he was told at the disciplinary meeting. For the first time, however, the grievor stated that he did attempt to contact hospital staff before leaving the inmate's room. He said, "I went to the door of the room, from where I could see for 40 to 50 feet and the corner of the nurse's desk. I tried to call a nurse. I said, 'Hello, is there a nurse available?"' When he did not receive any response, the grievor stated, it became impossible to wait any longer. He headed for the toilet facilities in a room two doors down, which was not quarantined. He asked the patient in that room if he could use the facilities. Having received an affirmative answer, the grievor removed his protective clothing, i.e., a hospital gown he was required to wear in the inmate's room, and went in. The grievor further testified that he was in the washroom for half a minute to a minute, and while there he left the door cracked open in order to have a view out of the room and into the hallway. He stated that he took this precaution so that he could observe anyone walking down the corridor toward the inmate's room. (This room was at the end of the corridor and could only be reached by walking past the room the grievor had entered.) The grievor further testified that when Mr. Gill saw him he had just completed washing his hands and was trying to get out of the room as quickly as possible after thanking the patient and his two visitors for allowing him to use the facilities. He tried to explain the situation to Mr. Gill but Mr. Gill declined to listen. Mr. Gill simply said that he wanted a report and he would pick it up on the next day. This was the last contact between the grievor and Mr. Gill 9. regarding the incident until the time of the disciplinary meeting. In making our findings of fact, we have decided not to accord any weight to the testimony of the grievor that he attempted to summon someone from the hospital staff to watch the inmate before he left the room. This evidence had about it an air of afterthought. It was presented for the first time at the hearing. It was uncorroborated, and from an obvious stake-holder in the outcome of the case. It conflicted with Mr. Gill's testimony on cross-examination and the account set forth in the letter ~of discipline, which were to the effect that at the disciplinary meeting the grievor stated he.did not attempt to bbtain coverage from'hospital staff because he was unable to do so on three previous occasions. The grievor did not contradict directly Mr. Gill's version of what he said in the disciplinary meeting, nor was the Union Representative who attended the meeting called to contradict Mr. Gill's statements and letter. Finally, the grievor's testimony that he called down the hall to the Nurses' Station did not tally with testimony from the Charge Nurse in the Isolation Ward at that time. This Nurse testified that because the day of the incident was a normal day with no emergencies, she and her co-workers would have been at the Nurses' .Station at the time the grievor allegedly called down the hall. She gave no indication that 10. either she or her co-workers heard the grievor -- something which would have been expected given that, as the grievor acknowledged in his report, the Isolation Ward is very quiet. We find as a fact that the grievor failed to make any attempt to obtain coverage from hospital staff before leaving the inmate's room. As to the other efforts that the grievor claimed he made to obtain coverage before leaving the room, e.g., attempting to use the walkie talkie, trying unsuccessfully to obtain an outside line in order to call the Jail, the evidence was equivocal. The grievor's claims on this score were uncorroborated. They were not presented in his original report, which was made shortly after the incident. Most damaging to the strength of this evidence, perhaps, was the fact that the grievor never recorded any of these alleged efforts in the hospital log book, nor did he record in this log book the fact that he left the room. On the other hand, there was evidence from one other Correctional Officer who had been on hospital duty at Oshawa General that the walkie talkies issued by the Jail were so frequently ineffective in reaching the Jail that he and his co-workers seldom bothered to record the fact. There also was evidence from this Correctional Officer and the Charge Nurse that it often was impossible readily to obtain an outside line on the hospital telephones. In these circumstances we are not prepared to find as a fact that the grievor failed to make these efforts. 11. This brings us to the question whether, on the facts as found by this Board, there was cause to discipline the grievor. We find that there was. In failing to attempt to obtain coverage from hospital staff, the grievor breached standing orders which were known to him as an experienced Correctional Officer. The standing orders for hospital and escort duty provide, in pertinent part, as follows: 3. The escort(s) will ensure that the prisoners is always within sight and under close supervision at all times until returned to the custody of the Jail. Mr. Gill testified that it was he who issued, inter *, this standing order. He stated that the hospital setting was vulnerable to escape and that an inmate may only be controlled by using restraints such as leg irons and keeping the inmate within sight at all times. This particular standing order was meant to achieve the latter objective. When the grievor left the room without obtaining coverage from someone else he violated this order. lation. Whi This was not a mere technical vio le it is true that Correctional Officers must "interpret . . . [standing orders] in a reasonable and intelligent manner", Standing Orders (Foreword), Order No. 7, here the grievor failed to act reasonably in attempting 12. to comply with Order No. 3 of the standing orders for hospital and escort duty. It was appropriate for the Employer to expect a Correctional Officer to attempt to resort to all reasonably available means of obtaining coverage of the 'inmate bef~ore leaving his post and losing sight of him, even on a matter of necessity. The grievor did not do this. He should have attempted to obtain coverage from hospital staff. Because he did not make this attempt, there was cause to discipline. This brings us to the second question, whether there was cause for the severity of the' discipline which was imposed in this case. We find that the discipline was too severe. According to the evidence, the grievor had an unblemished record. There appeared to be mitigating circumstances. The grievor stated that on three previous occasions his attempts to obtain coverage from hospital staff were futile. Several other witnesses testified that Correctional Officers commonly experienced problems in inducing hospital staff to cover inmates. These problems might have.' derived from a lack of communication between the Jail and the Hospital. The Charge Nurse in the Isolation Ward testified that she never knew that hospital staff were supposed to do this kind of thing. While these factors do not excuse the grievor's failure to try and obtain such coverage, they do serves to moderate the severity of the penalty that was imposed. 13. The grievance is allowed in part. The discipline is reduced to a written warning which shall be placed in the grievor's personnel file. The grievor is entitled to be reimbursed for all wages lost by virtue of the suspension. We remit the matter to the parties in this posture. Jurisdiction will be retained ,by the Board pending implementation of the terms of this Decision. DATED AT London, Ontario 1984. Vice-Chairman "I dissent" (see attached) K. O'Neil, Member "I dissent" (see attached) W.A. Lobraico, Member ’ Dissent I would have allowed the grievance and removed any reference to the discipline herein from the griever's file. With respect, I am not able to agree with the assessment of the members of the Board of the griever's credibility. The grievor's evidence that he called up the hall for a nurse is consistent with the other evidence given at the hearing. In particular, it is not inconsistent with Mr. Gill's or Nurse Carter's evidence, in my opinion. At one point in his testimony~, Mr. .Gill indicated that Mr. Vetter had said in the disciplinary meeting that he had not tried to obtain help from the hospital staff. However, when pressed on cross-examination, he said, "I know I put what happened in the letter.'! What the letter says is, "Your representative explained that because you had to go to the washroom and because you were unable to attain hospital staff backup... on previous occasions, you assumed you could not get coverage in'this incident." These are not Mr. Vetter's words, nor do they say he did not try to get help. They speak of a state of mind. Later in the letter of May 19, Gill refers to "your explanation", but he is clearly referring back to the reference above. Nor is it improbable that Vetter would have called once up the hall, as he testified that he had done, even if he didn't expect results from the hospital staff. Given the personal physical pressure he was under, he 'could hardly have been expected to do more. Nurse.Carter's evidence was that at the time Vetter would have called up the hall, she was most likely "trying to get report so I can give it". She would have been engaged in conversation, most likely, with the other nurses on the floor as to the condition of the various patients. That she did not hear what Vetter called out at the other end of the floor would not be at all surprising. She also made it quite clear that she was not recalling being at the desk precisely at that time in any event, she was only assuming that she would have been there on a normal day. She testified only to the fact that she did not hear Vetter call. She was unable to testify as to whether Vetter did or did not call up the hall. Indeed, if Nurse Carter were engaged in a four way conversation as to the very important matter of report, it would have been surprising if she had heard. Whether or not it was an after thought for Mr. Vetter to mention the attempt to get help, and whether or not it was ineffective, Mr. Vetter's testimony stands uncontradicted and should have been accepted, in my opinion. , . 2. The larger issue is whether or not the employer has discharged the onus of proof and has shown that the grievor was guilty of some culpable behaviour. The standing order of most general application clearly is Order No. 7 which charges the Correctional Officer with the use of his or her judgment. Did Mr. Vetter interpret ~ the other standing orders "in a reasonable and intelligent manner?" It would have been my decision that given a very weak, hepatitis-ridden convict who was shackled to the bed and a temporary but acute physical crisis, the grievor did what could be reasonably expected of a responsible person. He sized up the security risk, took the precaution of positioning himself where he could see comings and goings, took care of his needs and returned to duty. 1 It would seem in the end that the real concern of the employer here was not security, since the convict was clearly secure, but the fact that the grievor did not strictly follow a rule, which another rule told him he had the room to interpret. I would have held that the employer had not discharged the onus of proving culpability in this instance. DISSENT With respect, I must dissent from the decision of the Vice Chairman to reduce a one day suspension to a reprimand. Normally I would ascribe to the policy of progressive discipline but in this case I do not believe the facts warrant such consideration. If the grievor had admitted his indiscretion and given a completely truthful account of the incident I might have been prepared to agree with the reduction; the evidence does not support such action. As the Vice Chairman states “we have decided not to accord any weight to the testimony of the griever.” 1 believe this assessment applies pretty well generally to all the testimony of the grievor and his witnesses and can only be described as self serving. The employer’s characterization of the events seems most probable to me and the whole story concocted has as the Vice Chairman states “an air of afterthought.” Supervision of inmates inside and outside the Institution is a serious matter. The case cited, X9/82 Lusis, provides a clear indication of what can happen when vigilance is not maintained. The employer’s assessment of the griever’s conduct and the penalty of a one day suspension is based on what was considered a “proper perspective”. Although the grievor had a good employment record the incident was very serious in terms of institutional security. Consequently, the penalty imposed can be considered modest and reasonable under the circumstances and should not be changed. For all of these reasons I would have dismissed the grievance. /Ibw