GSB#0670/01
UNION#01A743, 01A744, 01A745, 01A746, 01A747, 01A748
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Horan)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Public Safety and Security)
Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION John Brewin
Counsel
Ryder Wright Blair & Doyle
FOR THE EMPLOYER Ajamu Boardi
Staff Relations Officer
Ministry of Public Safety and Security
HEARING June 14, July 16 & 17, August 13 & 26, 2002.
DECISION
Kathleen Horan commenced her employment with the Ministry as an unclassified Correctional Officer (“CO”) on January 18, 1999 at the Metropolitan Toronto West Detention Centre. She maintained that status until she was discharged on June 25, 2001, as a result of an incident which took place on April 8, 2001.
Following her discharge, six separate grievances were filed on her behalf. They each arise, directly or indirectly, from the events which gave rise to that discharge.
The employer relies on three related grounds to justify the discharge. It is claimed that the grievor assaulted an inmate, submitted a false occurrence report, and provided false information to the investigator.
Although the six grievances filed do raise some other issues, the parties agreed to proceed, at least initially, solely on the question of whether there was just cause for discipline and, if so, whether the penalty of discharge was just and reasonable in the circumstances.
The central event which gave rise the discharge was the alleged assault. There is no dispute that an incident transpired involving the grievor and an inmate. The incident took no more than 60 seconds to unfold. There were three witnesses/participants: the grievor, the inmate and Marlene Wickham-Johnson, another CO. Both the grievor and Wickham-Johnson completed reports, were questioned by the Ministry investigator, and testified in the proceedings before me. Their versions of events differ markedly.
The inmate did not testify. However, neither party attributed any significance to that absence of evidence. For while the parties disagreed about many things, it would appear that there was an implicit agreement between them that the inmate's evidence would likely have added little to establishing the facts of the case. The inmate was described by both COs as a "special needs inmate" perhaps exhibiting behaviours consistent with mental health difficulties. And while Ms. Horan and Ms. Wickham-Johnson presented different accounts of their personal experiences with this inmate (Ms. Wickham-Johnson apparently having personally encountered fewer difficulties with her than the grievor may have), they both presented a picture of an inmate who could be, and frequently was, uncooperative, non-communicative or overly communicative, verbally abusive and, at least potentially, violent. In those circumstances it is not surprising that neither party viewed the failure of the inmate to testify as significant. The undisputed picture painted of the inmate is consistent with the conclusion that her evidence would, in all likelihood, have been inherently unreliable.
Thus, the factual determination regarding what precisely transpired during the incident in question is left to be determined on the basis of the two conflicting versions offered by the grievor and Ms. Wickham-Johnson. Consequently, as the parties indicated at the very outset and largely repeated during their final submissions, findings of credibility will be critical to the outcome of the case. Put somewhat differently, as the union did, my assessment of the veracity of Ms. Wickham-Johnson's version of events will be critical to any determination as to whether the employer has met its burden of establishing just cause.
Before proceeding to outline my findings in respect of the incident, I will provide some background and context.
First, I note that while the central event in this case unfolded in a minute or less, the parties felt it necessary to canvass a much broader scope of evidence. The hearing took some five days to complete. In addition to direct evidence pertaining to the central events, evidence was presented to outline, in fairly elaborate detail, all of the reports various individuals were required to complete as well as the contents of investigation meetings held with the grievor, Ms. Wickham-Johnson and others.
The breadth of the evidence thus canvassed permitted the witnesses to be cross-examined, not only in relation to their direct versions of the events in question, but also in respect of the various derivative reports they prepared and statements they made to the investigator subsequent to those events. And while that process undoubtedly served to protract the proceedings, it also offered enhanced opportunities to test the credibility of the chief witnesses.
I also note that there is a broad range of discrepancies between the evidence of the grievor and that of Ms. Wickham-Johnson. They include different versions, not only of the central event, but also in relation to events which preceded and followed it. There is, not surprisingly, a broad range of levels of significance which attaches to these discrepancies. Some, in particular in relation to relatively minor details, are most likely simply the product of faulty or incomplete recollection in relation to relatively insignificant matters. The differing versions of the critical 60 seconds are, of course, central to the outcome of the case and to my findings of credibility. Further, I am satisfied that those critical 60 seconds (regardless of whose version of those events is accepted) would have been perceived and understood as they were unfolding as significant and unusual. Thus, it is less likely, in my view, that discrepancies in the witnesses’ accounts of these events are to be explained by faulty or incomplete recollection. There are further discrepancies in the evidence which, while not directly related to the critical 60 seconds, cannot be described as being in relation to trifling or insignificant matters.
In arriving at my ultimate findings of fact and in performing the assessment of credibility required for those findings, I have, although I have not catalogued them all in intricate detail, considered all of these discrepancies. I have also made every effort to consider the nature and extent of individual discrepancies and, in particular, the likelihood of innocent or benign explanations for those discrepancies. In assessing the evidence of the witnesses who testified, I have considered all of the usual factors: the demeanour of the witnesses when giving their evidence, their apparent desire to tell the truth and to resist the tug of self-interest, the ability of their testimony to withstand the test of cross-examination and, of course, simply what seems most probable or likely in the circumstances.
I begin by focusing on and briefly outlining the different versions of what transpired during the critical 60 seconds.
On the day in question the grievor was assigned to general duties. Ms. Wickham-Johnson was working a four-hour shift in the women's segregation area of the facility. As the general duties officer, the grievor performed a number of tasks and, among them, was responsible for providing relief to the officer on duty in the segregation area. There is no question that the grievor provided Ms. Wickham-Johnson with relief on the day in question. There is a dispute, however, about precisely how and in what circumstances the grievor came to provide that relief. The precise manner in which that transpired is, in the general scheme of things, largely irrelevant to my determination. I pause, however, to reject the suggestion made by the employer that the grievor deliberately encouraged a reluctant Ms. Wickham-Johnson to take her break so as to specifically provide the grievor with the opportunity to enter the inmate's cell and to assault her. In that regard, I note that the event I am about to describe, which the employer characterized as an assault, only took place after the grievor called for backup prior to entering the inmate's cell. And it was Ms. Wickham-Johnson who returned from her break to provide that backup. If the grievor had acted in a calculated and premeditated fashion, I find it highly unlikely that she would have gone to the trouble to procure a witness to her inappropriate activity. It is primarily for that reason that I reject the employer's suggestion of a cold and calculated assault. I note further, however, that while I have rejected this suggested version of the events, the employer's case and its justification for the discharge did not rest exclusively or even primarily on that contention.
The altercation with the inmate began when the grievor and Ms. Wickham-Johnson approached the cell. Ms. Wickham-Johnson was providing backup and was in possession of the keys. She opened the cell door to permit the grievor to enter and witnessed the subsequent events from her vantage point standing at the opened cell door.
Ms. Wickham-Johnson's description of the events which followed was relatively consistent throughout – from the occurrence report she prepared shortly thereafter to the accounts she provided to the investigator and culminating in the viva voce evidence she provided before me. She watched the grievor enter the cell; the inmate was standing. The grievor said to the inmate: "I told you to stop yelling". The grievor moved her hand, the inmate stepped backward, the grievor moved her hand and the inmate fell to the floor. From her limited vantage point, Ms. Wickham-Johnson was unable to observe any physical contact between the grievor's hand and the inmate. She had no difficulty, however, observing what transpired next. The grievor kicked the inmate twice between her legs. When the inmate closed her legs, began to yell and rolled over, the grievor again kicked her, this time on her lower back above the buttocks. The grievor then exited the cell and Ms. Wickham-Johnson secured the cell door.
The grievor's version of events is different. The inmate was relatively quiet at the time that the grievor relieved Ms. Wickham-Johnson. But, from the moment the inmate saw the grievor performing her rounds in the segregation area, she began a course of incessant yelling. While this conduct was not necessarily atypical of the inmate, the grievor testified that this incessant yelling was creating a significant disturbance and annoying the other inmates. (I have no doubt that it was annoying the grievor.) It was in response to this that the grievor determined to enter the inmate’s cell in an effort to manage her behaviour. And it was for that reason that she sought backup (in accordance with acknowledged policy regarding cell entry).
But the competing versions of the critical events begin to diverge virtually at the very moment when Ms. Wickham-Johnson unlocked the cell door to permit the grievor's entry. The grievor testified that when she entered the cell the inmate, who had been crouching on the mattress on the floor, jumped up suddenly. The grievor told her to sit down. The inmate did not respond but was moving and agitated. The grievor placed her left hand on the inmate's right shoulder and "guided" her down to the mattress. She then placed her right foot on the inmate’s left thigh in an effort to keep her still. The inmate, however, continued to move and was trying to roll away. The grievor watched her moving and, realizing that her effort was futile, consequently took her foot off the inmate, told her she had to stop screaming, looked at Ms. Wickham-Johnson and said: "this is ridiculous, let's go" and left the cell.
In her evidence and in the other accounts she provided (her occurrence report and the interview with the investigator as well as at the “allegation meeting”), the grievor provided some explanation and context for her conduct on the day in question. First, and as already alluded to, the grievor indicated that she believed the inmate’s incessant yelling warranted some intervention.
She explained how, prior to entering the inmate’s cell or to even seeking the necessary backup to do so, she made efforts to communicate with the inmate with a view to managing her loud and disruptive vocal performance. These efforts were, however, largely ignored by the inmate who moved around in her cell to avoid the limited line of sight available to the grievor through the small window surface on the door of the cell. Although the grievor was reluctant to open the hatch on the cell door – because the inmate was not averse to throwing things out the hatch – she did so in order to facilitate communication with the inmate. But the inmate continued to ignore her and simply increased her volume. (There are perhaps some unresolved questions about how much of a disturbance the inmate might actually have been creating by yelling through the closed cell door if the grievor had to open the hatch to communicate with the inmate. But I note that, in cross-examination, the grievor insisted that her efforts at communication had been made through the closed metal door of the cell and that she had not opened the hatch – a point to which I shall return.)
It was in response to this that the grievor determined to enter the cell in order to be able to communicate more directly and effectively with the inmate. I will have more to say later about the grievor’s motivation in determining to enter the cell.
As already set out, the grievor (at least in her evidence in chief – again a point to which I shall return) acknowledged that she had “guided” the inmate down to the mattress on the cell floor by putting her left hand on the inmate’s right shoulder to do the “guiding” – clearly an application of force though, on the grievor’s version in viva voce evidence, certainly a relatively marginal one. But the grievor categorically denied having kicked the inmate.
She did, however, again in her examination-in-chief, provide some further context for her unusual technique involving, as she put it, the application of her right foot to the inmate’s left thigh, in an effort to keep the inmate still so that she could be spoken to. She explained that she had been involved in an incident some ten months earlier in which an inmate had bitten a fellow CO, drawing blood and causing a relatively serious injury. The grievor explained that this was quite a frightening incident. Inmates can be placed in the segregation area because they have refused to see a doctor or to be tested for infectious diseases. The grievor was therefore concerned about putting herself at risk of death or disease just because, as she put it, an inmate has little or no grasp of reality. Thus, as the inmate had resisted her efforts to get her to sit down, the grievor next used her foot so as not to leave her arm exposed in her efforts to control the inmate and to have her sit still.
I turn now to briefly examine some of the events which followed upon the altercation in the inmate’s cell.
First, I note that the events just described were followed very shortly thereafter by a return visit inside the inmate’s cell. And while there are discrepancies in the respective descriptions of the grievor and Ms. Wickham-Johnson about this second visit, I do not find it necessary to fully resolve those competing versions. Essentially, almost immediately after the grievor had exited the cell and the door had been secured by Ms. Wickham-Johnson, the inmate began to shout, claiming that she was bleeding. The grievor then re-entered the cell with Ms. Wickham-Johnson again providing backup. At the behest of the grievor, the inmate removed her pants. The grievor observed that the inmate (who according to documents filed was born in 1947) appeared to be menstruating and Ms. Wickham-Johnson observed a little blood on her underwear. Whatever the source of this limited bleeding may have been, it was not suggested that there was any specific impropriety associated with the second entry to the cell. Further, it was not suggested that the inmate suffered any serious injury as a result of the earlier altercation. A subsequent accident/injury report completed, in part, by the facility’s nurse after examining the inmate on the day in question concluded that no injuries were found.
Shortly after the second cell entry, Ms. Wickham-Johnson left the unit. Again, there are competing versions as to precisely how or why that transpired. Ms. Wickham-Johnson testified that her disapproval of the manner in which the grievor had handled the situation, which, she said, she communicated to the grievor, led to her departure from the unit. The grievor ascribed less lofty motives to the departure, suggesting Ms. Wickham-Johnson preferred gossiping at the lobby desk to performing her duties in the segregation area. In cross-examination, the grievor’s explanation of Ms. Wickham-Johnson’s departure was perhaps slightly more charitable. For at that point she merely claimed to be simply unable to provide any reason for Ms. Wickham-Johnson’s departure. She did, however, take the opportunity, as part of that inability to explain the absence, to assert that Ms. Wickham-Johnson was on a four hour shift and took a one hour break.
It is clear, however, that neither the grievor nor Ms. Wickham-Johnson was in any hurry to record or report any of the events just described. And while they both, ultimately, prepared written occurrence reports detailing the events, neither of them initiated the transmission of information about the events to the employer.
The log book, which COs are required to maintain, contains no mention whatever of the altercation or cell entries.
It would appear that the first log book entry made by the grievor was at 1640 hrs, shortly after she first relieved Ms. Wickham-Johnson. The grievor’s last log book entry on that day was made approximately one hour later. It was during this one-hour period that the grievor first relieved Ms. Wickham-Johnson, then had her return to the segregation area and secured her assistance as backup for the cell entry which precipitated the altercation which took place at approximately 1700 hrs.
With one exception, all of the grievor’s log book entries from 1640 hrs to 1720 hrs make note of the inmate’s screaming. At 1710 hrs the grievor made an entry (in both the log book and in the Inmate Information Sheet) indicating that the she had turned off the inmate’s water after what appeared to be urine was seen leaking out from under her cell door. This entry was made shortly after the altercation and after Ms. Wickham-Johnson had left the segregation area for the second time.
At about the same time, the grievor called the General Duty Operational Manager, Capt. Partridge, to advise that she had turned off the water in the inmate’s cell. The grievor made no mention of the altercation in either the log book or in the Inmate Information Sheet or in the telephone call to Capt. Partridge.
As a result of the call, Capt. Partridge visited the segregation area shortly thereafter – her entry in the log book is marked at 1738 hrs – by this time Ms. Wickham-Johnson had also returned to the segregation area.
Neither the grievor nor Ms. Wickham-Johnson took the opportunity to report any details of the altercation to Capt. Partridge at that time. And, similarly, while Capt. Partridge did have occasion to have a discussion with the inmate at that time, there is nothing in the Captain’s log book entry or subsequent report or in the evidence of the grievor or Ms. Wickham-Johnson (to the limited extent they were able to hear the conversation between the Capt. Partridge and the inmate) to suggest that the inmate made any immediate complaint about her treatment by the grievor. It was, however, clear from both the Captain’s report and from Ms. Wickham-Johnson’s evidence that the inmate was, perhaps unusually, upset about something. Capt. Partridge advised the inmate that they could talk further later when the inmate had settled down.
Less than an hour later, at 1830 hrs, Deputy Superintendent Close did an on-call tour of the segregation area. Her entry in the log book and her subsequent written report both indicate that the inmate complained, at that time, that she had been assaulted. By this time the grievor had left the segregation area although Ms. Wickham-Johnson was still on duty in the area.
Deputy Superintendent Close reported this allegation to Capt. Partridge who, in turn, summoned the grievor to her office, advised her of the allegation and directed her to complete an occurrence report. In the interim Deputy Superintendent Close had arranged for the Unit Manager, Ms. Dvorak to take the inmate to the health care unit to be examined. (As indicated earlier, no injuries were found.) On her return to the segregation area, Ms. Dvorak checked the log book to see who had been on duty in the area and determined that to be Ms. Wickham-Johnson.
Ms. Dvorak found Ms. Wickham-Johnson, who by this time had left the segregation area on completion of her shift but was still in the institution. The two discussed the inmate’s allegations. Ms. Wickham-Johnson confirmed that the altercation had taken place during her shift and that the grievor had kicked the inmate. Ms. Wickham-Johnson was instructed to complete an occurrence report.
The precise circumstances and sequence of events which next followed is difficult to accurately reconstruct, given the variations of the evidence of the grievor and Ms. Wickham-Johnson. There is no question, however, that these two COs discussed the contents of the occurrence reports they were preparing prior to completing and filing those reports. It is equally clear that the grievor had the benefit of reading Ms. Wickham-Johnson’s completed occurrence report before finalizing her own.
From that point forward, the employer’s investigation of the events in question proceeded. Among the various documents put before me by the parties were the two occurrence reports just referred to, Ms. Dvorak’s Accident/Injury report referred to earlier, Capt. Partridge’s report dated April 9, 2001, a further report from Ms. Dvorak dated April 11, 2001 and a report by Ms. Close dated April 19, 2001. Also filed were the investigator’s notes of interviews held with the grievor (on April 11, 2001), with Ms. Wickham-Johnson (on April 9 and 21, 2001) and with Ms. Dvorak (on April 9, 2001). On June 8, 2001 an “allegation meeting” was held with the grievor and a union representative. Two separate sets of notes of that meeting were entered as exhibits. Following that meeting, the grievor’s employment was terminated by letter dated June 25, 2001.
Having carefully reviewed all of the evidence, I am satisfied that Ms. Wickham-Johnson’s version of events is to be preferred to that offered by the grievor and, consequently, where those versions conflict I have accepted the evidence of Ms. Wickham-Johnson and rejected that of the grievor.
I have not come to that conclusion lightly since, as counsel both acknowledged, the result of this case hinges principally, if not exclusively, on my findings of credibility. The reasons which have led me to reject the grievor’s evidence include the following.
First, I did not find the grievor’s general demeanour to inspire confidence in her sincerity. She presented her evidence in what can be described as a cautious and calculating fashion, frequently impressing with the very economy of information divulged. For example, in relation to the preparation of the occurrence reports just adverted to, she presented a version of events in chief which would likely have led even the most careful listener to erroneously conclude (even though she had not explicitly made the claim) that she had completed her occurrence report before seeing the one prepared by Ms. Wickham-Johnson And while this manner of presentation, bordered, at times, on coy, she was also capable, perhaps at the moments when her capacity for restraint was tested, to respond in cross-examination with a vigour marked by its venom. For example, when asked why, if she was concerned about being bitten, she had put her hand on the inmate’s shoulder to “push” or “guide” her down to the floor, the grievor responded with a cynical flourish: “well I wouldn’t be able to put my foot on her shoulder, would I?” A similar contemptuous response emerged when, confronted with some of the peculiarities of her evidence relating to her response to Ms. Wickham-Johnson’s report (a point to which I shall return), the grievor finally responded: “I was confused by other things – basically everything – and what specifically would you like to ask me about, Sir?”
But these are merely examples related to the grievor’s demeanour while testifying which lead me to be somewhat circumspect in accepting her evidence. There are more significant difficulties with the substance of the grievor’s evidence which have caused me concern.
Of particular concern was the grievor’s ability, demonstrated on more than one occasion, to be flexible in the account of events she choose to advance at different points – both in events leading up to the hearing and in her evidence before me.
Perhaps the most startling such example related to the evolution of her account of pushing or guiding the inmate to the floor just prior to the physical contact between the grievor’s foot and the inmate on the mattress on the floor. In her occurrence report, prepared within hours of the incident, the grievor wrote: “[the inmate] appeared very unstable and would not comply with my orders to lie down on her mattress. After ordering [the inmate] several times, I pushed her down onto the mattress and attempted to hold her in place with my right foot”. Two days later she told the investigator that she had directed the inmate to sit but “She disregarded my third or fourth order, I then placed my left hand on her right shoulder, she was resisting but I managed to sit her down on the mattress and held her. I then placed my right foot on her left outer thigh to prevent her from jumping up.” At the allegation meeting, the grievor stated: “I didn’t push her to the mattress, I guided her to the mattress.” In her evidence in chief she repeated her contention that she had “guided” the inmate down to the mattress.
This evolving account of one of the key moments in the event is significant for two reasons. First, and I accept the employer’s submissions on this point, it represents a continuing effort to paint the events in as innocent a light as possible while still attempting to maintain some consistency with Ms. Wickham-Johnson’s version. Perhaps more intriguing, however, is the grievor’s initial use of the word “push” and her subsequent revisionist effort to repudiate that word. I will return to the more general question of the grievor’s contrition, or lack thereof. It was clear to me, however, that perhaps the most heartfelt regret she expressed during the proceedings was in relation to having used the word “pushed” in her occurrence report. In an utterly unconvincing effort to explain why she had used the word, she suggested that she was so confused by the contents of Ms. Wickham-Johnson’s report (which, it will be recalled, she reviewed prior to completing her own) that she wrote the word “pushed” without thinking about its connotations and added that she now feels that what she did was not “pushing”.
It is perhaps the irony associated with the grievor’s effort to recast events which fuels the singular sincerity of her regret at having used the word pushed. Ms. Wickham-Johnson’s report makes no mention of any pushing or other physical contact prior to the inmate being on the mattress. Similarly, while, in her viva voce evidence, Ms. Wickham-Johnson testified to seeing the grievor move her hand in the inmate’s direction and the inmate subsequently on the mattress, she readily and candidly acknowledged to not having seen any actual direct contact between the grievor and the inmate at that time. While one might readily infer such contact from her evidence, Ms. Wickham-Johnson was not the source of any direct and specific evidence of that contact. From that perspective, the grievor’s claim that the contents of Ms. Wickham-Johnson’s report confused her and led her to use the word pushed is devoid of any rational explanatory value. One might, however, understand the grievor’s regret at using the word “pushed” and thereby having perhaps been the sole source of any direct and specific evidence of that physical contact between her and the inmate.
But this was not the only occasion upon which the grievor demonstrated flexibility in her ability to recast events.
The grievor described the events which led up to her decision to enter the inmate’s cell. The heavy metal door of the cell was equipped with a small window area permitting a limited view within the cell and with a small hatch which could be opened to facilitate communication. As I have already detailed, the grievor was quite clear, in chief, that since she couldn’t hear the inmate very well with the hatch closed, she had opened it in an effort to communicate with her. And yet, at the allegation meeting, held some two months after the incident, in one of the very few instances where the grievor even remotely acknowledged in any fashion that her conduct had been problematic, she conceded that, in retrospect, she used bad judgment in entering the cell – she should have attempted to talk to the inmate through the hatch and perhaps written a report and called for a supervisor rather than entering the cell. I should note, however, that limited concession on her part was never coupled with any acknowledgment of impropriety with respect to her actions inside the cell. When asked in cross-examination to explain the import of the statement at the allegation meeting, the grievor indicated that she meant that she should have attempted to talk to the inmate by opening the hatch rather than through the closed metal door. When reminded, on cross-examination, that she had earlier testified that she had, in fact, opened the hatch and spoken to the inmate through it, the grievor made initial efforts to deny that she had given that evidence but then promptly and simply disavowed her earlier testimony.
While this particular demonstration of flexibility was in relation to aspects of the evidence much less significant than the “pushing”, I was impressed by how quickly and apparently conveniently the grievor was able to repudiate her earlier clear and specific testimony.
There were further aspects of the grievor’s evidence which caused me concern, or simply did not ring true. I was impressed by the ease, indeed the eagerness, with which the grievor was prepared to ascribe nefarious motives, blame or fault to others – for example to Ms. Wickham-Johnson for, in the grievor’s view, shirking her duties. Similarly, while I have no doubt that the inmate in question is a difficult one to manage, the grievor’s description struck me as undoubtedly hyperbolic. The grievor frankly presented herself as someone who was generous in ascribing blame to others but miserly when it came to accepting any personal responsibility.
I was also troubled by the competing explanations as to why, after the altercation with the inmate, it was Ms. Wickham-Johnson, who, unlike the grievor, was assigned exclusively to the area, was the one who left the segregation area. Ms. Wickham-Johnson testified that, after the first cell entry, she expressed her disapproval of the grievor’s conduct. The two, however, as already outlined, returned to the cell almost immediately. Ms. Wickham-Johnson testified that, after that second entry, she was in shock and asked the grievor to leave the area. The grievor refused. Ms. Wickham-Johnson said she would not remain with the grievor and so Ms. Wickham-Johnson left. Apart from casting unfounded aspersions on Ms. Wickham-Johnson’s work ethic, the grievor offered no credible explanation as to why Ms. Wickham-Johnson, who was the on-duty CO in the segregation area, would simply have left her post. I am thus much more attracted to the version offered by Ms. Wickham-Johnson that she left, essentially, because of her discomfort and displeasure with the grievor’s conduct.
There is also an aspect of the grievor’s response to the investigator which I find illuminating. For while she ultimately acknowledged that she ought to have written an occurrence report on her own initiative before being directed to do so by her employer, the grievor, with one possible exception, offered no explanation for not having done so. The exception is to be found in one of her responses to the investigator. She described Capt. Partridge’s visit to the segregation area shortly after the altercation: “Ms. Partridge did her tour and spoke to [the inmate] for a few minutes, signed the book and left without saying or mentioning anything to me. I was prepared to write a report if it was requested of me, however, it wasn’t. This furthered my belief that it was a non-issue.”
In other words, while the grievor perhaps now acknowledges that an occurrence report was warranted, her view at the time was, quite simply, so long as no one else raised the matter, it was a “non-issue”.
Finally, with respect to the portions of the grievor’s evidence which have caused concern, I turn to her description of the events Ms. Wickham-Johnson described as “kicking” which the grievor has denied.
The grievor’s version of events simply lacks the ring of truth.
One need not go much further than the grievor’s own words in her occurrence report. She wrote:
[the inmate] appeared very unstable and would not comply with my orders to lie down on her mattress. After ordering [the inmate] several times, I pushed her down onto the mattress and attempted to hold her in place with my right foot. CO1 Wickham-Johnson was outside the cell and my back was to her. [The inmate] continued her movements and yelling, and my foot slipped several times. I exerted some pressure to hold her still. After telling [the inmate] that her screaming was disrupting others, and to stop it, I exited the cell.
This entry warrants at least two comments. First, the specific reference to the relative positions of the grievor and Ms. Wickham-Johnson and, in particular, the assertion that the grievor’s back was to Ms. Wickham-Johnson, is so entirely superfluous to the narrative chain of events, that it seems to have been included for the sole purpose of undermining any claim Ms. Wickham-Johnson might have made to have seen what transpired (again, it will be recalled that the grievor reviewed Ms. Wickham-Johnson’s report before filing her own). But perhaps of greater significance, apart from the dubious technique of a CO trying to secure an inmate by means of a foot, the description “…my foot slipped several times. I exerted some pressure to hold her still” is clearly crafted to establish a version devoid of any culpability which, all the same, exhibits some kind of compatibility with that of Ms. Wickham-Johnson. And while that may have been a deliberate tactic adopted by the grievor, neither can it be ignored that the words chosen can easily and simply be seen as nothing more than a delicate euphemism for “kicking”.
In view of all of the above, I have been unable to repose great confidence in the grievor’s evidence or her version of events. By contrast, I found Ms. Wickham-Johnson to be truthful and consistent in her recitation of events. She had no reason to lie about the events she described and no such reason was posited in the union’s argument. I found her restraint compelling – she felt no need to either say she had witnessed the grievor pushing the inmate or to even conclude that had happened based upon what she had seen. Her testimony rang true and furnished a picture of the events which is much more likely or probable than that painted by the grievor.
It is for these reasons that, at least in the plentiful occasions of their conflict, I have rejected the grievor’s evidence and accepted that of Ms. Wickham-Johnson.
In view of that evidence, I am satisfied, on the basis of clear and cogent evidence that, on a balance of probabilities, the grievor did (in however minor a fashion and with no resulting injuries) assault the inmate and was subsequently less than truthful about what had taken place.
In all likelihood and their very simplest, the events can be described as follows. The inmate in question is difficult to manage and (for reasons I neither know nor need not speculate about) has a particular distaste for the grievor. That is why the grievor indicated that she liked to stay as far away from this inmate as possible – for whenever the inmate saw her, the former would invariably begin to scream and hurl verbal abuse. On the day in question, the grievor had no nefarious premeditated plan in place to “get” the inmate. However, when the inmate saw the grievor (after the latter had relieved Ms. Wickham-Johnson) the inmate did begin a course of incessant yelling. This conduct annoyed and agitated the grievor who determined (exhibiting, as she later acknowledged, poor judgement) to enter the inmate’s cell. It is unlikely that, prior to entering the cell, she had formed any clear intention to assault the inmate. However, once inside, the inmate’s ongoing screaming, physical evasion, lack of attention or submission to the grievor’s authority produced the peak of the grievor’s frustration and resulted in a loss of control which culminated in a push and a few swift kicks administered to the inmate.
Of course, the fact that I have found that the grievor has indeed committed the infractions for which the employer chose to terminate her employment, is not necessarily entirely dispositive of the case. In these circumstances, however, the employer argued and the union acknowledged that there are significant statutory limitations upon my remedial authority. Section 7(4) of the Crown Employees Collective Bargaining Act provides:
In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995 the Grievance Settlement Board shall not provide for the employment of an employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client if the Board has found that the employee,
(a) has applied force to a resident in a facility or a client, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident or client…
There was no dispute between the parties that, if I were to make the factual findings I have now made, this section would apply to these proceedings.
But while I am thus precluded from exercising discretion in a fashion which would offend the statutory limitation just set out, it is still open, if I am persuaded that it is just and reasonable to do so, for me to substitute some other penalty for the discharge.
It is precisely that which the union urges me to do.
There is, of course, no want of authority for the unsurprising proposition that physical abuse of a resident or inmate can warrant discharge (see for example Hunt, 1683/87 (Springate), Re Government of Province of British Columbia and British Columbia Government Employees’ Union (Correctional Services Component) (1987), 1987 CanLII 8881 (BC LA), 27 L.A.C. (3d) 311 (Hope), and Bedeau, et al 52/83 (Jolliffe).
Indeed, even the authorities relied on by the union highlight the serious nature of such conduct. In Sindall/Talbot, 164/96 et al. (Gray) this Board observed as follows (at page 25):
Any incident in which an employee uses unjustified force on someone is a matter of grave concern. Such conduct is illegal. It exposes the employer to potential liability. And it hardly advances the correctional purpose of a correctional institution to have correctional officers engaging in illegal conduct toward inmates who are incarcerated because they are alleged or have been found to have engaged in illegal conduct.
However, despite the gravity of this type of offence, mitigating factors have been considered and, in some cases, have resulted in a substitution of some other penalty for discharge.
In the Sindall case the two grievors were involved in escorting a handcuffed inmate to the segregation area after the inmate had been involved in an altercation with a fellow inmate. The inmate was abusive and physically resisted his escorts. Indeed, the inmate’s aggressive kick brought the three to the floor. Vice-Chair Gray concluded, however, that each of the grievors had, to some extent, engaged in an improper use of force.
In determining whether discharge was the appropriate penalty, Vice-Chair Gray considered two prior cases.
In Hunt, cited earlier, the grievor, a residential counsellor at a facility for developmentally handicapped adults, was (in addition to subsequently being discharged for other incidents) issued a written reprimand for his conduct. He had twice rapped a resident on the head with his knuckles three times in response to the resident having pulled his hair. No injury resulted from what was clearly an improper use of force. The significance of the case for Vice-Chair Gray was that it illustrated an incident of unjustified use of force that the employer did not consider warranted discharge.
Also referred to was McPhee, 2050/92 (Barrett), in respect of which Vice-Chair Gray apparently also heard some evidence since the Deputy Superintendent of the institution involved in the Sindall/Talbot case had also been involved in and was questioned about his involvement in the McPhee case. Again, for Vice-Chair Gray the significance of the McPhee case lay, not so much in its outcome, but in the fact that the employer had imposed a penalty short of discharge. The employer had imposed a 15 day suspension on the grievor based on its view that the grievor “lost it” when the inmate called him a “diddler” and struck the inmate several times. The penalty was imposed on the mistaken view that the grievor had confessed immediately after the incident that the blows he had administered to the inmate had resulted from his having lost control.
Vice-Chair Gray considered those penalties and reviewed the circumstances and conduct of the grievors in his case, which he determined was not as egregious as the employer had asserted, and concluded that the grievor’s conduct warranted no greater penalty than that imposed by the employer in the cases under review. A penalty of a 15-day suspension was thus substituted for the discharge.
The historical concept of “discrimination” in labour relations is one which has a very particular meaning and which predates the Charter, modern notions of equity, many statutorily prohibited forms of discrimination and most human rights tribunals. In its classical application the concept of labour relations discrimination was (and continues to be) applied so as to insure that similarly situated employees are treated in the same or similar fashion as to discipline. In its simplest form, it would preclude differential levels of discipline being applied to different employees who were equally involved in the same workplace offence.
At the risk of over-simplification, however, I do not accept that this principle dictates that because the Crown in Right of Ontario qua employer, some 15 years ago, failed to discharge an employee who had engaged in an improper use of force and committed an (albeit relatively marginal type of) assault on a resident or inmate, that the employer is thereby forever precluded from imposing such a penalty for that kind of offence.
The principle of discrimination is easiest to apply not only in relation to the very same offence but also in relation to the very same management in the very same institution. Its utility perhaps declines when one attempts to apply it across disparate ministries throughout the public service or even across disparate institutions within the same ministry.
In any event, the principle of discrimination and the exercise of discretion to modify a penalty must both be applied and assessed in the particular circumstances of each given case.
In the present case, I see no basis to intervene to modify the penalty imposed. The result might have been different had the grievor had a significant level of years of service like the grievors in Sindall/Talbot or had she acknowledged her wrongdoing and demonstrated some remorse as the employer believed the grievor in McPhee had done. I note as well that the entire incident was precipitated by the grievor’s poor judgement in determining to enter the cell. This was not a case where the resident/inmate had provided any initial physical provocation. The grievor was guilty of poor judgement in entering the cell and of loss of control once inside it. She was not forthcoming about her conduct in the cell at any time up to and including the evidence she gave in these proceedings. While she did acknowledge some impropriety on her part – bad judgement on entering the cell and failing to record any of the events until so directed – she demonstrated no acknowledgement of wrongdoing or contrition in respect of anything she had done while in the inmate’s cell and, instead, chose to continuously prevaricate about what transpired. In those circumstances, I am unable to identify a single significant mitigating factor favouring the grievor and I see no reason to modify the penalty imposed.
Thus, to the extent the grievances before me allege unjust discharge or seek to modify that penalty, they are hereby dismissed. I leave it to the parties to advise the Board if there remain any further outstanding issues.
Dated at Toronto this 23rd day of October 2002.