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HomeMy WebLinkAbout1984-0825.Picard.85-11-07a25184 826184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. Picard) and Crievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: P. Knopf Vice-Chairman 5. Dunkley Member F. Collict Member For the Crievor: A. Millard Counsel @rrister & Solicitor For the Employer: J. Hannah Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearing: October I, 1985 -2- ‘v On August 3rd, 1984, the grievor was given a five day suspension for his failure to comply with an institutional directive. This conduct resulted in an inmate escaping the griever’s custody. The grievor is a correctional officer at the Guelph Correctional Centre. The grievor seeks to have the five day suspension removed from his record and to have a warning letter substituted. .-, As a result of the discipline, the grievor also launched a second grievance which is Board File 826/84. However, at the outset of the proceedings, counsel for the grievor and the grievor hitielf indicated that this latter grievance is being withdrawn. There is no dispute about the facts of the case. The grievor has been a correctional officer for 10 years. In the words of his Deputy Superintendant, he has an “impeccable record”. The grievor has never been disciplined and, on the contrary, has two letters of praise or commendation on his file. The incident giving rise to this case is the only flaw in an otherwise perfect record of service. -.’ However, on June the 12th, 1984 events occurred which even the grievor admits warrant some discipline. The grievor was assigned to “escort duties” which involved watching an inmate who had been admitted to a local hospital. The inmate had undergone minor surgery in the groin area on or about June 6th and was slated to be discharged on June the 12th. The grievor had no previous contact with the inmate but had been assigned to the hospital for escort duty for the five days before June the 12th. The grievor had noted that the inmate had difficulty walking immediately after surgery but, as the days progressed the inmate’s ability to move -3- .-X. had improved somewhat. By II:00 a.m. on June 12, the inmate was scheduled for release. The Head Nurse spoke to the grievor and asked if he knew when the griever would be leaving. Apparently, the Head Nurse wanted to know when the inmate’s bed would be available for incoming patients. The griever’s impression of the Head Nurse was that she was an inflexible person who insisted upon following the rules. Strictly speaking, patients are to be discharged at 11:OO a.m. The griever felt it was important for good relations between the Ministry and the Hospital to appear to try to accommodate the Head Nurse’s concern. Therefore, -I while knowing that a call to the institution could not ensure that the escort vehicle could be faced to attend quickly, the grievor decided to make such a call “for appearances sake”. When the grievor went to make the call, he tried to make the call from the Nurses’ Station. This would have given him a clear view of the inmate’s bedroom. So if the inmate had left the room and proceeded anywhere throughout the corridor on the floor he would have been in view of the grievor. However, the Head Nurse did not want the grievor to tie up the phone in the Nurses’ Station and asked him to use a phone across the hall in a.small office. While in that office, he ‘.__ did not have a clear view of the corridor or the inmate’s room. However, during his one and a half minute conversation with the Institution, the grievor did observe the inmate walking down the hall and notice that the grievcx was in the small office. The grievor felt somewhat apprehensive when he saw this because, as he explained, he realized that if the inmate wanted to escape at all it would have been on that day. The grievor says he was very much aware of this. After he hung up the phone, the grievor moved quickly down the hall to try to find the inmate. However, all he found was the inmate’s clothes and no _.’ other trace of the inmate. A search of the hospital and the grounds was quickly -4- instituted to no avail. The inmate was ultimately apprehended two days later in Ottawa. The grievor admitted immediately to the iMinistry’s investigator, his superiors, and he repeated the admission before this Board, that he realizes that he failed in his duty by allowing the inmate to go outside visual contact. The grievor admits that it was this failure which enabled the inmate to escape. The grievor also admits that this clearly amounts to a breach of the “standing order” which is published by the Guelph Correctional Centre outlining how the correctional officers are supposed to act in such situations. The parties agree the standing orders are reasonable in terms of their objectives in requirements for the Ministry and its staff. Some parts of ~the Order warrant quotation: Foreword Standing orders do not purport to deal with every situation that may arise. They are issued as a guide. It is the duty of all employees to interpret and enforce them in a reasonable and intelligent manner. “Hospital Escort Officer” The following is a list of guidelines which are for the benefit of the Escort Officers assigned to watch inmates admitted to outside hospitals. Staff are reminded that when an inmate is admitted to hospital, that area becomes an extension of the Institution and the inmate is subject to the rules and regulations which govern the Institution. 1. Staff will situate themselves in a position where they are able to keep the escorted inmate in their sight at all times. 2. In the event the Officer has to leave the inmate unattended to go to the washroom, they are to notify the instituation they are leaving the inmate unattended and for the approximate length of time. They are to inform the institution upon their return. The Officer is to secure the inmate in an appropriate manner con- sidering his medical condition and remove the restraints when he returns. Out of courtesy the Officer should notify the Nursing Staff of his intentions. . 3. If the inmate has to go to the washroom, the Officer is to check and be sure there is only one door to the area, if there is more than one door the second exit is to be secured. -5- ,.__’ 7. While on duty at outside hospital an Escort Officer is to call the Institution on a regular basis either by phone or radio whichever is more convenient. Call should be made hourly. Escort Classification of Inmates ESCORT DUTY - to courts, medical appointments, hospital, other institutions - use of restraints NOTE: It is the responsibility of the C.0.3 Escort Supervisor (or in mr absence the Shift Supervisor) to determine the number of escorting officers, the restraining equipment to be used, etc. No escorting officer has the authority to change any instruction pertaining to the use of restraints unless prior permission has been received from the Escort Supervisor, even if a physician raises-objections. All restraints, when required, must be placed on inmate prior to leaving secure area of the institution and not removed until safely returned. a) b) Maximum Security Inmates (i.e. all GATU Inmates, all RED ALERT inmates, except those whose classification has been overridden in witing by Sr. Assistant Superintendent, Deputy Superintendent or Superintendent. all inmates being escorted to/from Mental Health Centres) These inmates will wear handcuffs, leg irons and (if determined by Escort Superviosr) a restraining belt. Should a medical treatment or test require that piece of equipment be removed, then this should be discussed with the Escort Supervisor. On no occasion will cuffs and leg-irons be removed at the same time. Medium Security Inmates - (i.e. all inmates not in (a) above) The Escort Supervisor will again determine number of escorts, type of restraints, etc. and escort staff must not change such instructions. It is recognized that some inmates may be seen as more “minimum” risk and the Supervisor must make a judgement on such inmates. At all times escort staff must be vigilant and make themselves fully aware of all data on the inmate’s profile from the officer he relieves. Visits to an inmate who is in a City Hospital are allowed as per institutional procedures and regulations (i.e. number of visitors, length of visit, number of visits per week, etc.). Any concerns felt by the escort officer should be immediately transmitted by radio to the Shift I/C. .i . -6- All Equipment provided as part of the escort officer’s “kit” must be kept readily available, but not where such equipment can be easily used against the officer. The grievor has at all times admitted that his conduct amounted to a failure to abide by these standing orders and that he was aware of these orders. The griever’s explaination for his conduct is that given the inmate’s difficulty walking as a result of the operation and given the fact that the inmate had shown no previous indication that he may try to escape, the grievor felt it was safe to leave the inmate unrestrained while he made the quick telephone call to the Institution. The grievor said he had had no indication that the inmate was the type of person who would try to escape. Finally, the grievor admits that had he adhered to the standing orders, either by restraining the inmate during the call or keeping him within visual contact, the escape would not have occurred. The Ministry brought up in evidence that all officers on escort duty receive an “escort kit” when they take over duty at the hospital. This is apparently a briefcase containing leg irons, handcuffs, a flashlight and billyclub and a two-way radio. The kit also includes documentation regarding the inmate. One of these documents is a form entitled “Inmate Admitted to Street Hospital under Escort”. This form puts the inmate’s security classification as being either maximum or medium. In the case of the inmate under the griever’s care on this day, the inmate had been classified as maximum security. The reason given was that since the inmate’s admission three weeks earlier, he had already received “two remission flags” which indicate some sort of institutional action that could affect his statutory remission. In addition, the inmate was serving a sentence which was to expire in December of 1984 taking statutory remission into consideration. The sentence was fa a parole violation; assault and obstructing jrjtice. Mr. Beaton, the Deputy Superintendent testified that the designation of maximum security, -7- together with the reasons stated in the form, would and should indicate that the inmate was a potential security risk. The form also cont’ains the statement: ‘In the case of maximum security inmates the officer in charge will be responsible in ensuring that proper restraints are used in the event of his/her temporary absence, i.e. meals, washroom, etc. The officer on duty will be responsible for the transfer of this form to his/her relief in everyxangeover. .I The ,grievor testified that he did not recall receiving this documentation. He admits that it could have been contained in the escort kit which he received each day as he reported. However the grievor never took the trouble to read the form. Ths, the grievor was not aware of the information contained on the form. The grievor admits that he realized that the inmate was classified as a maximum security risk. Mr. Beaton, Deputy Superintendent, was the person who made the decision as to what discipline to apply to the grievor. He testified before making the decision, he consulted the Regional Personnel Office of the Ministry to seek their advice. At that time, he was advised to discharge the grievor. However, Mr. Beaton was unwilling to do this, given his acceptance of the griever’s sincere remorse and his awareness of the griever’s ‘exemplary record”. After extensive consultation with the Superintendent Mr. Eeaton decided to impose a five day suspension as the penalty. The Union brought out evidence through its local steward John Costello, in support of its contention that the grievor had been given a disporportionately harsh penalty for this incident . Mr. Costello testified that he was involved in an incident in 1979 when he was on escort duty with another guard taking a patient to hospital for treatment. The patient was also maximum security. Mr. Costello said that he had misunderstood his supervisor’s direction with regard to securing the -8- inmate with leg irons and had “negligently” not applied the leg restraints. The inmate escaped. Although initially threatened with charges because of his negligence, Mr. Costello was able to convince his superiors that his misunderstanding of his instructions amounted to mitigating circumstances. In the end, Mr. Costello was given a warning letter on his record. The argument made on behalf of the Ministry is that the Ministry has a legislative mandate and obligation to provide for the security and custody of its inmates. The griever’s failure to comply with the admittedly reasonable standing orden should be seen as insubordination and a serious breach of his duties towards his employer. Counsel fcr the Ministry submitted as relevant precedents the cases of OPSEU (C. Lusis) and Crown in Right of Ontario (Ministry of Correctional Services), Board File 579/82; and OPSEU (William Lee) and Crown in Right of Ontario (Ministry of Correctional Services), Board File 764/83. These are both cases where the grievers were correctional officers who were found to have been responsible for enabling the escape of inmates and had been discharged. However, the Board had substituted a three month slapension for their conduct. It was submitted that under those circumstances, the five day penalty imposed upon the .- grievor ought to be viewed “extremely modest”. Counsel fcr the Union submitted that the LLsis and Lee cases ought to -- be distinguished because the conduct in those cases was far more culpable than the conduct of the grievor. It was submitted that the griever’s conduct ought to be regarded simply as a momentary lapse in judgement on the part of an excellent worker . It was said that “the penalty must fit the crime, but also the criminal, i.e. the griever”.. Thlrs, counsel submitted that the penalty in this situation, given the record of the grievor and the momentary nature of the error in judgement, does not . . . warrant as severe a penalty as a five day suspension. -9- The Decision There has never been any question that the griever’s conduct in this case warrants some discipline. The grievor is the first to admit this. His error was in allowing the inmate to go outside of visual contact. If this had not happened, the escape would never have occurred. We agree with the grievor that the situation did not warrant the applicaticn of restraint upon the inmate under normal circumstances. However, when the grievor found himself in a position that he had to make a phone call and could not make that call without lming visual contact with the inmate, the grievor really only had two choices. He should have either restrained the inmate or ensured that the phone call was made in a place where visual contact could be maintained. The grievor’s error in judgement was failing to take either of these courses. This was also directly’in contravention of standing orders. It is no excuse for the grievor to say that he was not aware of the documentation that outlined the inmates background and security classification. First of all, the grievor was aware that the inmate was classified as a maximum security risk. Secondly, the griever’s clear obligation as a correctional officer is to make himself aware of the contents of the kit and that includes the documentation in that kit. Had he done so, he may have realized that the inmate was a person who was prepared to violate terms of probation and had a potential for violence and obstructing justice. This could have alerted the grievor of the potential of the inmate to try to escape. It is also no excuse for the griever to have relied upon his personal judgement that the inmate was not physically capable of escape gtven his medical condition. As was admitted by all, inmates can exaggerate or even fake disabilities - 10 - . ..* in order to open up avenues of escape. Although the grievor had observed the wound caused by the surgery and was sensitive to the fact that the inmate may well have been undergoing pain as a result of the surgery, the grievor could not rely upon his own judgement that this would make the inmate incapable of escape. The duty of a correctional officer is to be aware at all times and guard against potential for escape. This precludes an officer from relying upon his own medical assessment of theinmates ability. -_ Having said that the griever’s conduct warrants discipline, it must also be said that there are several mitigating factors in this situation. The first factor is the griever’s “exemplary record” from the past. This record and indeed the grievor’s own demeanour on the witness stand impressed the Board to the extent that we are confident that the grievor has been and will continue to be an asset to the Ministry. In addition, the evidence is clear that from the outset, the grievor was both sincerely remorseful and completely co-operative in the investigation of the incident. This convinces us that he has clearly learned from the incident and ‘there is little or no likelihood that he will ever commit such an error in the future. Finally, his error and conduct must be catagorized as a momentary aberration or Iape of judgement. It was not willful misconduct or even insubordination. Instead, it was simply a single, uncharacteristic act of thoughtlessness or carelessness that resulted in the escape. We have also considered the comments from the previous Boards in the Lee and ~cases, as well as the discipline imposed upon Mr. Costello. We do not - accept that the griever’s case shows a disporportionate response to his conduct as compared to Mr. Costello’s because of the fact that since the Costello incident, the standing order had been imposed and the Board has issued the decisions in L&s and Lee. Thus, the Costello evidence was not of assistance to us. - 11 - .-. Having considered all factors mentioned above, we must conclude that the employer’s response to the griever’s conduct in thii caSe was appropriate. A suspension is warranted both to bring home to the griever and/or other inmates the seriousness of failure to obey orders and failure to give proper attention or judgement to their job. A more severe penalty would not have been justly imposed upon the grievor given his background. A lesser penalty would not have been appropriate given the seriousness of the offense. For all the foregoing reasons, the grievance is dismissed. DATED at Toronto, Ontario on the 7th day-of November, 1985. I P. Knopf, Vice-Chairman F. Collict, Member .