Loading...
HomeMy WebLinkAbout1985-0688.Czerniak.88-04-21IN THE MATTER OF AN ARBITRATION Under TM3 CROWN RMPLOYRES COLLECTIVE'BARGAINING ACT Before THE GRIEVANCE 'SETTLEMNT BOARD Between: OPSEU (Stan Creiniak) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: For the Griever: For the Employer: Hearings: R.J. Delisle Vice-Chairman J. Solberg G. Milley Member Member P. Lukasiewicz COUllSel Gowling and Henderson Barristers and Solicitors J . Hannah Senior Staff Relations Officer Ministry of Correctional Services September 23, 1987 September 30, 1987 October 20, 1987 Griever Employer xggy. On May 11, 1985 there was an escape from the Metro Toronto East Detention Centre. The grievor, a Correctional Officer' 2, was on duty at' the time, and by letter dated June 24, 1985, Exhibit 13, he was disciplined for negligence in the performance of his duties by a 20-day suspension without pay. The grievor has filed two grievances, Exhibit 1. The first claims that the discipline was not justified and the second claims the employer .iS in breach of Article 18.1 of the Collective Agreement in failing to take all appropriate measures to ensure the health and safety of employees working in the inmate exercise yards. The parties decided to hold 'the second grievance in abeyance and we are -here concerned then only with the complaint regarding discipline. -At the time of the~incident the griever had been working at Toronto East for about eight years. He bad worked throughout the institution including the supervision of exercise yards. He agreed that he was one of the institution's more -experienced officers. He was detailed that.day to the catwalk which looks down on the -exercise yard: his partner Terre11 was to escort the prisoners down from the range to the door leading to the exercise yard and observe the prisoners from there. Before the yard began Terre11 and the grievor checked the area for contraband and any security problems. They discovered a smoke hatch door open which would allow an inmate to climb the wall (Photograph 7). They .notified the control room by radio but the control room officer on checking her panel noted that the light, which should register when the door was open, was not registering. The grievor boosted Terre11 who closed the door. Terre11 and the grievor went to the North wall and observed the fan coverings. They were concerned that someone might be able to grab the bars and climb to the roof. They advised their supervisor, Thompson, of their concern and it was also noted in the log book, Exhibit 7A. The grievor took his position on the catwalk and was advised to pay particular attention to.the far coverings on the North. wall. The stairwell officer has a blind spot and cannot observe the North wall. The grievor positioned himself in the North-west corner butt the Deputy-Superintendent, Commeford,~ instructed him to take up a position at the end of the cat-walk in the observation post there.situate. In the post is an emergency alarm button which Will alert the control room of any problem and cause personnel to be dispatched. The grievor testified that when the third exercise yard began one of the inmates, Downey, acted strangely. His testimony was consistent with his earlier statement given on the day of the incident, Exhibit 11, and he confirmed its accuracy. He testified that he couldn't really recall the time factors and this was understandable 'given that the incident was two years previously. His earlier statement notes in part: At about 1025, 22 inmates from 4B Unit were in the east inmate exercise yard. Inmate DOWNEY upon entering the yard moved directly towards the north west corner of the exercise yard. I noticed that he proceeded to jump up and down and try to grip the corner of the walls. Inmate Downey was laughing and began to talk to me. was to climb 'the wall. He told me how easy it Inmate DOWNEY was laughing and 3 beganto talk to me. He told me how easy it was to' climb the wall., Inmate DOWNEY moved south towards me. As I turned around facing south after he got my attention, he moved into the corner underneath the catwalk. He informed me again how.easy it would be to climb up the corner walls to the roof where I was located. He tried.to show me by climbing. I told him to stop. Ialso told him not to attempt anything like what he told me.. He kept on telling me how easy it was. I told him again to stop it. He attempted several times to show me how easy it was to climb the corners of the wall. I told him again, to stop,it. He finally stopped and began to t&k to me. He diverted my attention solely to him even though I told him several times to stop playing around in that corner. I told him to get into the main yard area. He said, "1 didn't mean to get you mad at me". As he was leaving this area at about 1045, I was advised by Mr. Ray XAHN, C.0.3, Shift-Supervisor Officer that maybe someone is over the.wall (escape). I took a quick count of inmates which totaled 22. There was lots of movement in the yard. Each inmate was moving in different directions. I tried to do a second count when at about 1046, I heard a banging from behind from the 3B day area window by one inmate with gold rimmed glasses. He was giving me a hand signal that pointed towards the south wall, He was also making a motion with his. hand that showed someone was going over the wall (south). At that point I took another body,count which totaled 21 inmates. By this time the inmates in the exercise yard had slowed down their erratic movements. Standing Order Number 2; at Toronto East, p.4, Exhibit 4, states: It must be clearly understood by officers on yard duty that they are there to supervise. Under no circumstances must they allow themselves to be diverted from this role. At no time will they enter into group discussion with inmates and they will avoid being surrounded by inmates. The officer stationed within reach of the alarm bell will ensure he is always in a position to reach that bell and will take the necessary steps to keep inmates clear of the area. Communication'with the rest of the institution is of paramount importance and must never be curtailed. It is clear that an escape from the exercise yard occurred while the griever's attention was diverted; The grievor was 4 facing south for a considerable period of time while an inmate went over the North wall, evidently using the fan coverings which the grievor had earlier identified as a security risk. At the hearing the grievor, in cross-examination, sought to justify his actions by saying that Downey commanded his attention because he presented a serious escape risk as well. In examination-in-chief however he testified that he "didn't feel that I should cancel the yard because an inmate was playing around in the yard. Not uncommon to see inmates 'climb a few feet -- a .common thing for an inmate to do". The grievor admitted *in cross-examination that an expe.rienced correctional officer would be aware of the risk that iIUUateS frequently try to manipulate staff and try to .distract staff in order to assist other inmates. The grievor had a radio and an alarm button to summon assistance, could have cancelled the yard, and should nothave allowed inmate Downey to divert him from his primarytask of observation. He was clearly negligent in carrying out his duties. A good deal of time was spent examining the physical security of the institution and improvements which have been made since the escape: new fan coverings, razor-ribbon on the top of the wall, an officer patrolling on the outside of'the wall and so forthi On reflection this really has little to do with our task. We are not here to decide who is principally at fault for the 5 inmate's escape.' Any .institution relies for its security on static security, the walls and bars, and dynamic security, the human element. The management has made considerable improvements to 'the static security but the human element is also very important. We are here to .decide whether the grievor played his role in the enterprise properly. He was given the task of observation and he didn't perform. He didn't even know there had been an escape until he was advised to do a count! The. then superintendent, of the institution, Peter Jackson, testified. After receiving and considering various reports he convened a meeting with the grievor, his union representative, hir lawyer, and two supervisors. He concluded there had been serious negligence on the part of the griever, considered the negligence to be in the range of a dismissable offence, but decided to give the grievor another obportunity and to suspend. Having found -that there was cause for discipline is there any reason to interfere with the nature of the penalty? To ensure that the grievor, and other correctional officers fully' understand their obligations there must be some response. The grievor has a clean record. He is a fully trained, experienced officer who was aware of weaknesses and instructed to pay particular attention to them. He failed in his primary task of observation. An escapee -from a maximum security institution is a- most grievous happening and the 'potential consequences great. From.the griever's testimony he still does not believe he has 6 done anything wrong and a penalty is necessary to communicate to him that he has. Can we say the penalty,. 20 days suspension without pay, is unreasonable? Given all the circumstances we cannot. Iwo cases of discipline for escape were brought to our attention: Lee, 764/83 (Samuels) and Lusis, 579/82 (Verify). In each of those cases the correctional officer was discharged for his negligence in an escape and in each the Grievance Settlement Board reinstated and imposed three-month suspensions. It may be that the correctional officers in those cases were even more negligent than here but then again there's a large difference between three months and twenty days. we conclude the discipline was justified and reasonable and the grievance is dismissed. Dated at Kingston #is 21st day of ‘April, 1988; f 7 L,’ R.J. Delisle, Vice-Chairman “I dissent” (Dissent attached) J. Solberg, Member G. Milley, Member DISSENT I swish this case were that simple. Three points need to be made. Number one. Yes, we heat-d a good deal of evidence about the physical security -of the institution and imor-overnent!~ which wet-e made aftev the escape. But, for some reason ! thi 5 Hoard be1 i eves that all that evidence is irrelevant. We! i ? at least the director of the ineti tut’ion tool:: it set-ioc!sly; he reduced the. grievov’s penalty. Because the fact is tha.!: .i:!3e eecuri ty problems of the institution had evevythinq ,tn it n ~4 i 7. i.l the escape. The two could not be separated. If the .~e,xrit~~~~ ;:i the ~yayd. had been adequate, a” escape rvocrl d have bee” .+a? rnnt~~ difficult, or even mot-e important, wa!ld have taken a lot lonqw to occur. Number two. The time factor is critical. y;bje i nepeirtor fr-all the Ministry of Correctional Services testilied that the escaping inmate would have been out Of view of the correctional officer in a matter of seconds. And tha.t’s directll; a T.exult of deficiencies in the security of the. yard. It i -5 17 significant piece of exper-t evidence that ought to have weirjhes: heavily on the Hoard. It explains why the griever did not “n.tii:e the esca,oe; he-was..dealing with another of the OVBT- 10 inmatee. and in a few seconds of distraction, the incident took. place. Numbe? three. In the real life of a aetentl on centye, a yard is t-wely cancelled. CXinly, in this c.55e tne qrievov felt he wasi under- order-s to have the yard go, on’ a.5 ikka!. . That Was the undi soured evidence and surely. that expl~ains the -/griever’s reluctance to cancel the yai-d despite the pecctl i ar behaviocw of one of the inmates. I”, the end, I thnk this gt-ievov is simply the fall guy for a” accident waiting to happen. And if the Employer can’t come to thii; Hoard with clean hands, then it’s up to this Bnatrd to have eve” hands. In my view, this decision is not even- handed. Mitigating the penalty rvould have made better justice fur both sides. J. Solberg