GSB#2004-3120, 2004-3121, 2004-3865, 2004-3952, 2004-3954

UNION#2004-0234-0658, 2004-0234-0659, 2005-0234-0023, 2005-0248-0006, 2005-0248-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Giraudy et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Counsel

HEARING

November 7 & 18, December 2 & 8, 2005; January 18, February 2 & 3, May 29, June 20, July 11, 12, 13, 14, 19, 21, August 23, September 5, October 27, December 4, 7 & 11, 2006; February 2 & 9, March 19 & April 4, 2007.

Decision

1On June 10, 2004, inmate Anderson escaped from a provincial bailiff bus as it was on route to the Central North Correction Centre (“CNCC”) at Penetanguishene. The three escort officers on the bus were Provincial Bailiff R. Giraudy, with twenty-five years of service, and Acting Provincial Bailiffs D. Sindall and P. Chmurzynski, with fourteen and eleven years of service respectively. Mr. Sindall’s home position was the Hamilton-Wentworth Detention Centre and Mr. Chmurzynski’s home position was the Maplehurst Correctional Complex (“Maplehurst”). Later on June 10, 2004, Mr. S. Small, who at the time was Manager, Offender Transportation Project, suspended the escort officers with pay pending an investigation, pursuant to Article 22(1) of the Public Service Act. Mr. Small subsequently ended the suspensions and the employees returned to work on June 21, 2004, but they were not permitted to work as a provincial bailiff until the matter was resolved. Further to Mr. Small’s request, Inspector J. Eldridge, a CISU investigator, was appointed on June 11, 2004, to investigate the incident. At the completion of the investigation and disciplinary process, Mr. B. O’Rourke, Provincial Coordinator, Offender Transportation Services, terminated the employment of Mr. Giraudy by letter dated December 3, 2004. He suspended Mr. Sindall and Mr. Chmurzynski without pay for 160 hours (twenty days) by letters dated January 10, 2005. Each employee filed grievances challenging the Employer’s disciplinary response.

2The Union took the position that the discipline issued to the escort officers

was void because of double jeopardy, due to the suspension with pay they each received covering the period from June 11 to June 20, 2004. The Union also argued that the ultimate

suspensions and the discharge were void because of delay. Conceding that each of the escort officers engaged in some culpable conduct, Union counsel took the position that their conduct in

the circumstances did not warrant a discharge or the two lengthy suspensions. It was argued that both suspensions should be reduced substantially and that the discharge should be replaced with a short suspension.

3In support of his submissions, Union counsel relied on the following decisions: Re Riverdale Hospital and C.U.P.E. (2000), 2000 CanLII 50212 (ON LA), 93 L.A.C. (4th) 195 (Surdykowski); Re OPSEU v. Ontario (Ministry of the Attorney General), [2002] O.G.S.B.A. No. 54 (R. Brown); Re OPSEU (Reale) and Ministry of the Solicitor General & Correctional Services (1997), GSB No. 99/96 (Dissanayake); Re OPSEU and Ministry of Correctional Services (1993), GSB No. T/0072/92 (Abramsky); Re OPSEU and Ministry of Correctional Services (1994), GSB No. T/0072/92 (Abramsky); Re OPSEU (Mailloux) and Ministry of Correctional Services (1995), GSB No. 1064/90 (Kirkwood); Re OPSEU (Kerna) and Ontario Human Rights Commission (2003), GSB No. 944/02 (Briggs); Re INCO and United Steelworkers, Local 6500 (1975), 1975 CanLII 2194 (ON LA), 9 L.A.C. (2d) 17 (Gorsky); Re Canada (Attorney General) v. Babineau (2005), 143 L.A.C. (4th) 129 (Fed. Ct.); Re Treasury Board (Correctional Service of Canada) and Babineau (2004), 2004 CanLII 94779 (CA LA), 133 L.A.C. (4th) 442 (PSSRB); Re OPSEU (Sammy et al) and Ministry of Correctional Services (2001), GSB No. 224/01 (Harris); Re University of Ottawa and IUOE, Local 796-B (1994), 1994 CanLII 18776 (ON LA), 42 L.A.C. (4th) 300 (Bendel); Re The Corporation of the Township of Amherst Island and OPSEU, Local 445, unreported decision dated September 18, 1994 (Briggs); Re OPSEU (Ferraro) and Ministry of Correctional Services (1984), GSB. No. 373/84 (Delisle); Re OPSEU (Rupert) and Ministry of

Correctional Services (1985), GSB No. 372/84 (Gorsky); Re Provincial Health Services Authority and P.E.I.U.P.S.E. (2005), 2005 CanLII 94081 (PE LA), 141 L.A.C. (4th) 70 (Christie); Re Clavel and Treasury Board (Correctional Services of Canada) 2004 PSSRB 82; Re OPSEU (Beaulac) and Ministry of Solicitor General and Correctional Services (1999), GSB No. 632/97 (Dissanayake); Re Toronto East General Hospital Inc. and SEIU (1975), 1975 CanLII 2133 (ON LA), 9 L.A.C. (2d) 311 (Beatty); Re OPSEU and Ministry of Correctional Services (2002), GSB No. 1999/98 (Harris); and, Re Hough and Ministry of Community and Social Services (1984), PPSG No. 927/84 (Simmons). Counsel also referred me to the Merriam-Webster’s Collegiate Dictionary (10th ed.)and the Concise Oxford Dictionary (7th ed.) definitions of “pending”, Sullivan and Driedger on the Construction of Statutes (4th ed.), Chapter 11 and Peter W. Hogg’s Constitutional Law of Canada, Volume 2, sections 44.10 (a) and (b).

4The Employer took the position that there was no basis for concluding that the discipline it imposed on the escort officers was void. It also took the position that the discipline was justified in the circumstances. In the alternative, Employer counsel argued that I should award Mr. Giraudy damages and not reinstate him if I were to find that the Employer did not have just cause to terminate his employment.

5Employer counsel relied on the following decisions: Re Ontario Liquor Boards Employees Union (Massa) and Liquor Control Board of Ontario (2000), GSB. No. 2033/97 (Abramsky); Re OPSEU (Adam) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2003-0892 (Herlich); Re AMAPCEO (Globerman) and Ministry of Health and Long-Term Care (2006), GSB No. 2001-0901 (Petryshen); Re OPSEU (Wickett) and Ministry of Natural Resources (2005), GSB No. 2001-0542 (Petryshen); Re OPSEU (Sidney) and Ministry of Transportation (1992), GSB No. 1855/90 (McCamus); Re Ontario Liquor Boards Employees Union (Pedneault) and Liquor Control Board of Ontario (2000), GSB No. 1568/98 (Briggs); Re PEGO (Shannon) and Ministry of the Environment (2005), GSB No. 2002-2915 (Herlich); Re ATU - Local 1587 (Sharpe) and Go Transit (2005), GSB No. 2004-1459 (Fisher); Re Provincial Health Authorities of Alberta, [2001] Alta. L.R.B.R. 187; Re Mains Ouvertes – Open Hands v. OPSEU, [2004] O.L.A.A. No. 879 (Stephens); Re Samuel Manu-Tech Inc. v. USWA, Local 8782, [2004] O.L.A.A. No. 807 (Carrier); Re Slocan Forest Products and IWA-Canada, Local 1-417, [1996] B.C.C.A.A.A. No. 275 (Devine); Re Glenrose Rehabilitation Hospital v. Canadian Health Care Guild, [2000] A.G.A.A. No. 54 (Fisher); Re Babineau v. Treasury Board (Correctional Service of Canada), [2004] C.P.S.S.R.B. No. 132 (Cummimgs); Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727; Re A.U.P.E. v. Caritas Health Group (2006), 154 L.A.C. (4th) 140 (Alberta Ct.. of Queens Bench); Re Alberta (Department of Justice) and A.U.P.E. (2006), 154 L.A.C. (4th) 183 (Sims); Re Algoma Steel Inc. and U.S.W.A., Local 2724 (2006), L.A.C. (4th) 243 (Randall); Re Community Living South Muskoka and OPSEU (2000), 2000 CanLII 50261 (ON LA), 92 L.A.C. (4th) 384 (Mikus); Re Toronto (Metropolitan) and C.U.P.E., Local 79 (2001, 2001 CanLII 62110 (ON LA), 99 L.A.C. (4th) 1 (Simmons); Re E.B. Eddy Forest Products Ltd. v. C.E.P., Local 31-X, [1998] O.L.A.A. No. 612 (Tacon); Re DeHavilland Inc. and C.A.W.-Canada, Loc. 112 (1999), 1999 CanLII 35895 (ON LA), 83 L.A.C. (4th) 157 (Rayner); Re Steel Cat Task Force Inc. v. U.S.W.A., Local 4153, [2006] O.L.A.A. No. 581 (Levinson); Re Stelco Inc. and U.S.W.A., Loc. 8782 (1995), 1995 CanLII 18306 (ON LA), 50 L.A.C. (4th) 120 (Rose); Re Ontario Liquor Boards Employee’s Union v. Liquor Control Board, [2005] O.G.S.B.A. No. 94 (Dissanayake); Re OPSEU (Bonacci) and Ministry of the Solicitor General & Correctional Services (1997), GSB No. 1923/96 (Dissanayake); Re OPSEU (Dannenberg) and Ministry of Correctional Services (1991), GSB N0. 414/89 (Dissanayake); Re I.U.E.W. and J.A. Wilson Lighting & Display Ltd. (1958), 8 L.A.C. 157 (Clark); Re OPSEU (Henry) and Ministry of Health (1989), GSB No.622/88 (Slone); Re CNCC and OPSEU, an unreported decision dated March 20, 2006 (Knopf); Re Metropolitan Toronto and C.U.P.E., Local 79 (1999), 1999 CanLII 35953 (ON LA), 78 L.A.C. (4th) 1 (Simmons); Re Toronto Humane Society and Teamsters Union, Local 419 (2004), 2004 CanLII 94683 (ON LA), 128 L.A.C. 296 (Newman); Re OPSEU (Fish) and Ministry of Colleges & Universities (1986), GSB No. 634/83 (Springate); Re OPSEU (Miller) and Ministry of Correctional Services (1989), GSB No. 2613/87 (Samuels); and, Re OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 670/01 (Herlich). Counsel also referred me to the Interpretation Act, R.S.O. 1990, Chapter 1.11 and to Driedger on the Construction of Statutes, Chapter 11.

6The hearing of the grievances took almost one and half years to complete. It consumed twenty-five hearing days, including four days of final argument. In a bottom line decision released subsequent to the hearing, I concluded that the discipline issued to the escort officers was not void because of double jeopardy or because of delay and I allowed two of the grievances in part, issuing the following directions:

1. The discharge of Mr. Giraudy shall be substituted with a three-month suspension. The Employer is directed to fully compensate Mr. Giraudy for his losses, subject to the suspension and any earnings through his mitigation efforts.

2. The twenty-day suspension issued to Mr. Sindall shall be substituted with a ten-day suspension. The Employer is directed to fully compensate Mr. Sindall for his losses.

3. The grievance of Mr. Chmurzynski challenging his twenty-day suspension is dismissed.

7Subsequent to the release of the bottom line decision, a number of hearing days were held to address remedial issues and other grievances that arose either directly or indirectly from the escape incident. Most of these matters have been resolved. I note that at one point I directed the Employer to assign Mr. Giraudy to the Mimico Correction Centre as a Correctional

Officer 2. This decision provides the reasons for the determinations made in the bottom line decision.

8Seventeen witnesses were called to testify in this proceeding. The Employer called as witnesses Mr. D. Dempster, Mr. C. Weber, Ms. L. Weber, Constables J. Barker and S. Finch, Mr. D. Bozzelli, Ms. C. Grimmond, Ms. R. Kasha, Mr. Small, Mr. O’Rourke, Mr. A. Ruggiero, Ms. J. Cece and Mr. G. Serpa. Counsel agreed to stipulate to certain facts relating to what Mr. R. Wilson would have stated if he had been called by the Employer to testify. The Union called Mr. Sindall, Mr. Giraudy, Mr. Chmurzynski and Mr. D. Sidsworth to testify. In addition to the oral testimony, the parties filed sixty-five exhibits.

9Although there was a considerable amount of evidence in this proceeding, the facts for the most part were not in dispute. The escort officers were assigned to transport twenty-five inmates to CNCC on bus #4 on June 10, 2004. Bus #4 is a large thirty-six passenger vehicle that has been modified for the safe and secure transport of inmates between institutions. The bus, in effect, is designed to serve as a secure institution on wheels. There are two seats located at the front, one for the driver and the other for a second escort officer. The first caged area near the front is used for protective custody inmates. Behind the protective custody area is the caged area for general population inmates. At the back of the bus, on the driver’s side, is a caged area that is referred to as the rear bailiff compartment. This compartment has two doors. There is a cage type door on the inside of the bus and there is a door on the driver’s side for entering the rear compartment from outside of the bus. There is an exit from the top of the rear compartment

to the roof of the bus. The bus is equipped with various safety devices, including audible alarms, lights on the dash, a GPS system and different types of communication devices. For example,

opening the outside door of the rear bailiff compartment will activate an audible alarm and a light on the dash.

10Mr. Giraudy and Mr. Chmurzynski were licensed to drive the bus, Mr. Sindall was not. Mr. Giraudy had been working as a permanent bailiff since 1984. Mr. Chmurzynski started doing bailiff work on a six month secondment in 2000 and he was subsequently often used to fill in as an acting bailiff. As of June 10, 2004, Mr. Sindall had received community escort and ISET training, but had been provided little if any bailiff training. He had relatively little experience as an acting bailiff, with most of that experience consisting of the transport of inmates by van. His assignment to bus #4 on June 10 was only the second occasion he had been assigned to work on a bus. Mr. Sindall had not been issued the Provincial Bailiffs Standing Orders (“PBSOs”) and he was not even aware that there were such standing orders until after the incident in question. Mr. Giraudy and Mr. Chmurzynski, on the other hand, were very familiar with the PBSOs.

11Mr. Chmurzynski was the first to arrive at the work location on June 10, 2004, and practice dictated that he would be the driver. The escort officers performed the normal duties in preparation for the trip to CNCC. Mr. Chmurzynski performed the usual checks to ensure the safe operation of the bus, including checking to make sure the outside door to the rear bailiff compartment was locked. Mr. Giraudy made sure they had the necessary paper work for the trip, including the files for each inmate they were transferring. Although Mr. Giraudy had the most bailiff experience, he did not assume any supervisory or “in charge” role. An Employer memo from 2002 makes it clear that the transfer of inmates is a shared responsibility, should be handled as a team approach and that no one staff member in the vehicle is in a supervisory capacity.

12Inmates who are being transferred wear orange coveralls. After being strip searched in the Admitting & Discharge area (“A & D”), the inmates are restrained by leg irons and handcuffs with lock boxes, and then escorted onto the bus. Bus #4 left Maplehurst heading to the Toronto Jail with six inmates on board and with the rear bailiff compartment empty. Mr. Giraudy occupied the second seat at the front of the bus while Mr. Sindall alternated between sitting on a milk crate and standing during the trip. The PBSOs provide that “a provincial bailiff will observe from the rear cage when the vehicle is in motion” if there are inmates on board. It appears however that escort officers often transported inmates by bus without one officer stationed in the rear bailiff compartment. The Union claimed that management was aware that this was taking place. However, management witnesses testified that they were unaware of any such practice and the Union was unable to demonstrate otherwise.

13An additional nineteen inmates were escorted onto the bus at the Toronto Jail, including inmate Anderson. Anderson had been sentenced to seven years and three months for robbery and assault causing bodily harm. He had outstanding charges of failing to comply with a probation order and utter death threats. As Operational Manager C. Grimmond indicated in her testimony, Anderson did not want to go to CNCC and was not cooperative. It was only when COs were about to remove him physically that he agreed to leave his cell. He was placed in a cell in A & D by himself. Ms. Grimmomd advised Mr. Giraudy about Anderson’s conduct and suggested that he carefully review Anderson’s file, place him on the bus last and consider the application of belly chains. After reviewing the situation, including talking with Anderson, Mr. Giraudy and Mr. Sindall were satisfied that Anderson should go on the trip to CNCC. Anderson appeared to be calm, however he was still escorted onto the bus last. The escort officers denied that the application of belly chains was suggested.

14The bus proceeded to CNCC and eventually headed north on Highway #93. The rear bailiff compartment remained empty on this leg of the trip. The trip appeared to be without incident until the bus stopped at approximately 1:00 p.m. for a red light at Waverley, at the intersection of Highway #93 and Vasey Rd. The Webers and their four year old child, in a pickup truck, came to a stop at the red light, right behind the bus. To put it mildly, they were surprised to see the rear side door of the bus open and a man in orange coveralls, with handcuffs and leg irons, exit the bus. The Webers locked their doors as they observed the inmate walk between the back of the bus and the front of their truck and proceed to walk south down the east side of highway #93. When the light turned green, the bus continued north on highway #93, with the Webers in pursuant, attempting to get the attention of the driver. Eventually, the four way flashers on the bus were activated and the bus came to a stop about five kilometers north from where Anderson escaped.

15Although Anderson did not testify, the Employer called evidence which helps to construct a probable version of what occurred prior to the escape. From a position at the back of the bus, Anderson succeeded in disabling the top and middle locking mechanisms on the cage door, likely by using strips of clothing that were subsequently found on the bus. With the top of the door pulled towards the aisle, Anderson was able to squeeze through the cage door and into the rear bailiff compartment. Once inside, he was able to disable the locking mechanism on the outer door. When the bus stopped for the red light at Waverley, Anderson simply opened the door and exited the bus. In order to accomplish this feat, Anderson was likely standing, off and on, for some time and he would have needed assistance from one or more inmates, who also would have left their seated positions. The process of gaining entry into the rear bailiff compartment would have taken some time. While all of this was going on, the escort officers noticed nothing unusual.

16As the bus was leaving the intersection at Waverley, an audible alarm and a light on the dash were activated, indicating an open rear door. The alarm was going on and off as the rear door was swinging open and then shut. Mr. Chmurzynski and Mr. Giraudy thought that the alarm signalled low brake pressure, because the two alarms have a similar sound. Mr. Chmurzynski then noticed from the driver side mirror that the rear door was open and so advised the other escort officers. The efforts of the Webers to get their attention went unnoticed. Mr. Chmurzynski put on the four way flashers and began slowing the bus down for a stop. Mr. Giraudy went through the bus taking an inmate count and discovered that they were one short. Mr. Sindall also took a count, with the same result. There was no doubt in their minds as to which inmate had escaped. Mr. Giraudy secured the cage door. Once the bus came to a stop on highway #93, Mr. Giraudy and Mr. Sindall left the bus and soon noticed the Webers parked behind the bus. They observed that Mr. Weber was on his cell phone to the Police. The Webers explained what they had observed and where the escape occurred. Mr. Giraudy asked Mr. Weber if he would drive them back to the escape location and Mr. Weber said he would. After they returned to the bus to advise Mr. Chmurzynski of their plan, Mr. Giraudy and Mr. Sindall got in the back of the Webers truck and returned to the escape location. The escort officers did not call the Police, giving the Police the name and a description of Anderson. They did not activate the GPS system. In fact, Mr. Giraudy asked Mr. Chmurzynski not to activate the GPS because it would only attract attention to where the bus was located, not to the escape location. The escort officers did not immediately contact the Employer to give notice of the escape or to obtain advice as to what they should do.

17Upon returning to the escape location, a civilian advised the escort officers of the direction Anderson took. It was clear that other individuals, including Mr. Dempster, had observed Anderson and had called the Police. The escort officers made efforts to locate Anderson, but the Police were soon on the scene and had Anderson in custody in relatively short order. It appears Anderson realized that escape was hopeless and essentially gave himself up when the Police arrived on the scene. While trying to locate Anderson, Mr. Sindall fell over a fence and apparently suffered a concussion, the effects of which only became apparent later.

18While there was considerable activity at the escape location, Mr. Chmurzynski was alone with twenty-four inmates in a bus that had been breached. He eventually flagged down a Police car heading south and asked the Police Officer to escort the bus back to Waverley. By the time the bus returned to Waverley, the Police Officers had captured Anderson and they were preparing to take him to CNCC. Mr. Giraudy and Mr. Sindall returned to the bus and it proceeded north to CNCC. As one might expect, the escort officers were quite busy while at CNCC before returning back with an empty bus. It is unnecessary to detail their activities. I simply note that they each prepared an Occurrence Report and sent them to Mr. Small. As noted previously, Mr. Small suspended them pending an investigation upon their return to Haines Rd. and it was shortly thereafter that Inspector Eldridge was assigned to conduct the CISU investigation.

19Although they received different penalties, Mr. Giraudy and Mr. Sindall were disciplined for precisely the same misconduct. Their discipline letters reflect that they were disciplined for committing the following transgressions:

On Thursday, June 10, 2004, in your capacity of Provincial Bailiff, you failed to exercise proper supervision of in-transit inmates, in contravention of Provincial Bailiffs Standing Orders, resulting in the subsequent escape of one such inmate.

On Thursday, June 10, 2004, in your capacity of Provincial Bailiff, you failed to immediately notify the appropriate authorities of the escape, in contravention of Provincial Bailiff Standing Orders.

On Thursday, June 10, 2004, in your capacity of Provincial Bailiff, you exercised poor judgment and jeopardized the safety of a fellow officer by pursuing the escaped inmate, in contravention of Provincial Bailiff Standing Orders.

On Thursday, June 10, 2004, in your capacity of Provincial Bailiff, you jeopardized the safety of members of the general public by requesting and being granted transport by members of the general public from a place of safety to an area where an escaped inmate was located and subsequently arrested.

20Mr. Chmurzynski, the driver, was disciplined for committing the following misconduct:

On Thursday, June 10, 2004, in your capacity of Acting Provincial Bailiff, you failed to exercise proper supervision of in-transit inmates, in contravention of Provincial Bailiffs Standing Orders, resulting in the subsequent escape of one such inmate.

On Thursday, June 10, 2004, in your capacity of Acting Provincial Bailiff, you failed to immediately notify the appropriate authorities of the escape, in contravention of Provincial Bailiffs Standing Orders.

21With one exception, the evidence clearly demonstrated that the escort officers engaged in the misconduct for which they were disciplined. They transported inmates by bus without exercising proper supervision of those inmates and in this regard in particular, they failed to ensure that an escort officer was stationed in the rear bailiff compartment. I agree with Inspector Eldridge’s conclusion that the escape would not have occurred if an escort officer had assumed his post in the rear bailiff compartment as required by the PBSOs. Even apart from this specific contravention, the escort officers failed to sufficiently observe the inmates while on route to CNCC, particularly given that they were aware of the problems Anderson created at the Toronto Jail before their departure. Although the escort officers testified that they did observe the inmates on occasion during the trip, their efforts in this regard were superficial and inadequate, given the nature of the activity that was likely taking place at the back of the bus. Once aware of the escape, the escort officers did not contact the appropriate authorities immediately. Although they were aware that a call had been made to the Police, they were required to notify the OPP of the escape, provide a full description of the inmate and the circumstances of the escape, and to supply the OPP with any other useful information. Mr. Giraudy and Mr. Sindall left Mr. Chmurzynski alone with twenty-four inmates in a bus that had been breached. They also exercised poor judgment when they allowed the Webers to take them back to the escape location, thereby exposing the Webers to potential danger. The one exception referred to above relates to whether Mr. Sindall can be faulted for the failure to place an escort officer in the rear bailiff compartment. I will address this issue later.

22Before addressing the question of the appropriate penalty for each escort officer, I will briefly provide my reasons for concluding that the suspensions issued to the Mr. Sindall and Mr. Chmurzynski, and the discharge of Mr. Giraudy were not void.

23The Union argued that Mr. Giraudy, Mr. Sindall and Mr. Chmurzynski were disciplined twice for the same offences thereby running afoul if the basic arbitral principle that employees cannot be penalized on two separate occasions for the same incident. Even assuming that the suspension with pay imposed on the three escort officers by Mr. Small constitutes discipline, it was my conclusion that the subsequent penalties imposed in December of 2004 on Mr. Giraudy and in January of 2005 on the other two escort officers were not penalties that contravened the double penalty principle in the circumstances of this case. An important feature of the principle is that the first penalty was a final determination of the matter. If it was, an employer cannot then discipline an employee again for the same offense. In this case, it is abundantly clear from the evidence that the suspension with pay was not intended to be the final disciplinary response for the escape incident. The letter confirming their suspensions with pay advises the escort officers that the suspensions will be for a period of up to five working days. The subsequent letter confirming their return to work points out that the incident is still under investigation and that the escort officers will not be permitted to work as bailiffs until the matter has been resolved. Mr. Eldridge had been appointed to conduct the CISU investigation. The process used by the Employer in this case is not unlike the process it has used previously when confronted with employee conduct that may merit a significant disciplinary response. The Employer did not intend that the suspensions with pay would be its final response to the escape incident and the escort officers were very much aware that the suspensions with pay pending an investigation did not constitute a final disciplinary response for the incident. Because the suspensions pending an investigation were an initial and not a final determination of what discipline the Employer would impose for the escape incident, I was satisfied that the Employer had not contravened the prohibition against imposing double penalties and that there was no basis in these circumstances for concluding that the final discipline imposed on the escort officers was void.

24The Union took the position that the length of time it took to discipline the escort officers was excessive and for this reason alone should cause me to find that the discipline was void. The Employer’s usual investigatory and disciplinary process resulted in a delay in imposing discipline of approximately 5½ months for Mr. Giraudy and of approximately 7 months for Mr. Sindall and Mr. Chmurzynski. As noted previously, Mr. Small very quickly suspended the escort officers pending an investigation and requested a CISU investigation. Inspector Eldridge interviewed fourteen persons during his investigation, with the first formal interview taking place on July 8, 2004. Mr. Giraudy was interviewed on July 22, 2004, Mr. Sindall on July 23, 2004 and Mr. Chmurzynski on September 9, 2004. Inspector Eldridge completed his Investigation Report (“the Report”) by mid-October 2004, when it was then sent to Mr. Small. Mr. O’Rourke began to carefully review the Report once he received it. On October 26, 2004, Mr. O’Rourke advised Mr. Giraudy that he would meet with him on November 12, 2004, in order to give him the opportunity to respond to certain allegations. Subsequent to that meeting, Mr. Giraudy was discharged on December 3, 2004. Mr. O’Rourke delayed his meetings with the other two escort officers because he understood that they were on a medical leave. Mr. Chmurzynski returned from medical leave in early December of 2004. Unkown to Mr. O’Rourke, Mr. Sindall may have returned to work from his medical leave as early as the beginning of November of 2004. By December 9, 2004, Mr. O’Rourke advised the other two escort officers that he would meet with them on December 17, 2004. Subsequent to their meetings, Mr. Sindall and Mr. Chmurzynski were issued their suspension by letter dated January 10, 2005.

25Arbitrators have held that an employer ought to impose discipline in a timely manner and that the failure to do so may void the discipline. Confronted with an issue of delay, arbitrators have considered such factors as the length of the delay, the reasons for any delay and whether there was any prejudice as a result of the delay. See, Re PEGO and Ministry of Environment, supra.

26Although there was a lengthy delay in imposing the discipline in this case, it is difficult to conclude that the delay was excessive in the circumstances. Contrary to the Union’s submission, Inspector Eldridge initiated his investigation with reasonable dispatch. The investigation involved interviewing a number of individuals, many of whom were civilians. The length of time it took to complete the Report was not unreasonable given the nature of the task confronting Inspector Eldridge. The length of time it took to complete the disciplinary process was also not unreasonable in the circumstances. Mr. O’Rourke had a far amount of material to review. Faced with Mr. Small’s opinion that all three escort officers should be discharged, Mr. O’Rourke took the time that he felt was necessary to be thorough and to arrive at the appropriate result. Contrary to the Union’s submission, Mr. O’Rourke cannot be faulted for waiting

for the return of Mr. Sindall and Mr. Chmurzynski from their medical leaves before scheduling their meeting. There was no indication from the evidence, particularly from the testimony of the escort officers, that the delay resulted in any prejudice to the Union in defending the grievances. I have no doubt that the escort officers found it difficult and stressful during the time it took to complete the investigation and discipline process. Mr. Sindall and Mr. Chmurzynski, in particular, went through the Christmas period knowing that Mr. Giraudy had been discharged, but unaware of their fate. However, because of my conclusion that the delay was not unreasonable and did not result in any prejudice, I was satisfied that the Union was unable to demonstrate that the delay in imposing the discipline in this instance established a basis for finding that the discipline was void.

27In arguing that the escort officers were given inappropriate penalties by the Employer, Union counsel pointed to their seniority and discipline free records. Counsel also submitted that the Employer treated the escort officers in a discriminatory manner as between themselves and as between them and others who were disciplined following an escape. Counsel noted that the highest penalty imposed for an escape in the past was a relatively short suspension. Counsel relied as well on the Employer’s response to a failure by an escort crew to place an officer in the rear compartment which occurred in April of 2005, after the escort officers in this case had been disciplined. In that instance, Mr. O’Rourke believed that only a letter of counsel was appropriate for the three escort officers transferring inmates by bus.

28I was not convinced that this was a situation where the Employer treated the escort officers in a discriminatory manner because of the penalties it chose to impose on them. Although Union counsel argued that the Employer only responded in the past with minor discipline for conduct involving an escape, there was no detailed exploration of the facts of previous cases in order to assess whether the circumstances between the earlier cases and the case at hand were at all similar. The only such exploration came when Mr. Bozzelli was asked about discipline he received for his involvement with an escape. That case involved an escape from a van and the facts were very different from those in the instant case. Indeed, Mr. Bozzelli’s conduct with that escape was very good and it is actually surprising that he received any discipline. It is a little surprising that the incident in April of 2005 warranted only a letter of counsel, but the result there had very much to do with the particular facts of that incident. It also occurred at a time when all the rear cages had been reinforced so that a repetition of the Anderson escape was extremely unlikely.

29As a general proposition, I was satisfied that the escort officers committed serious offences. Their role while transporting inmates includes maintaining custody of inmates and their failure to follow a basic rule led to an escape which placed the general public at some risk. It was fortunate that Anderson was captured relatively quickly, without incident or injury to a member of the general public. Once the escape occurred, the escort officers failed to follow other rules which are designed to assist in the capture of an inmate and to protect the public. I suspect that the escort officers were just as surprised as anyone that Anderson was able to enter the rear compartment and to escape by means of the rear side door. I have no doubt that once they discovered that the escape had occurred, the escort officers were committed to capture Anderson and they believed that their actions to accomplish this goal were appropriate. However, even taking these considerations into account, one is still left with the undeniable fact that the escort officers failed to follow basic rules governing the transport of inmates.

30The approach Mr. O’Rourke took in deciding what discipline to impose on the escort officers can be summarized quite simply. He believed that each escort officer committed serious offences and deserved significant discipline. Mr. Sindall and Mr. Chmurzynski admitted during their meeting with Mr. O’Rourke that they had engaged in culpable conduct. Mr. O’Rourke concluded that the employment relationship with these two employees could be salvaged and he issued what amounts to a twenty-day suspension to each of them. Mr. Giraudy, on the other hand, was not prepared to concede that he engaged in any culpable conduct when he met with Mr. O’Rourke on November 12, 2004. He went further at that meeting by stating that he would act in the same manner if confronted with similar circumstances in the future. I did not accept the Union’s submission that Mr. Giraudy only said what he did at the meeting because he took a defensive posture due to Mr. O’Rourke’s aggressiveness. I was satisfied that Mr. O’Rourke acted in a professional manner throughout the meeting. Confronted with a failure by Mr. Giraudy to accept responsibility for his actions and an indication that he would repeat those actions in similar circumstances, Mr. O’Rourke concluded that this employment relationship could not be salvaged and that he had no alternative but to discharge Mr. Giraudy.

31In assessing whether the penalties issued to the escort officers were appropriate in the circumstances of this case, I took into account the usual factors. I concluded that the penalty imposed on Mr. Chmurzynski was not unreasonable. He committed the two offences for which he was disciplined and a significant penalty was warranted. Given the serious nature of these offenses, I was satisfied that the twenty-day suspension he received was appropriate and that there was no reason to modify this penalty.

32Mr. Sindall and Mr. Giraudy committed the same offences and yet received different penalties. I generally agree with the Union’s position that the same penalties should be issued for the commission of the same offences. The Union emphasized this position when addressing the penalty issued to Mr. Giraudy. However, as one can see from my disposition of these grievances, there are factors which could justify different penalties for similar offences.

33In my view, Mr. Sindall did not deserve a twenty-day suspension. One of the more serious offences he allegedly committed related to the failure to ensure that there was an officer in the rear bailiff compartment. Yet Inspector Eldridge found that Mr. Sindall had not been issued the PBSOs and that he was not aware that these rules existed. The evidence before me also clearly indicated that Mr. Sindall had not been advised that an escort officer must be in the rear bailiff compartment when there were inmates on the bus. On the first occasion he worked on a bus and in the instant case, he simply went to the front of the bus with the other escort officers and there was no discussion about locating one of them in the rear compartment. Mr. O’Rourke determined that it was Mr. Sindall’s responsibility to ensure that he was familiar with the policies relating to the transport of inmates. Although this approach may apply in some circumstances, it does not apply in a situation such as this. A long standing arbitral principle states that an employee cannot be disciplined for contravening a rule unless that rule had been clearly brought to his or her attention. The rule requiring an escort officer in the rear compartment had not been clearly brought to Mr. Sindall’s attention and the Employer was not justified in disciplining him for contravening this rule. This alone warranted the substitution of a lesser penalty. The other offences committed by Mr. Sindall were violations of rules of which he would have been familiar with because of his community escort and other training. For his failure to supervise the inmates adequately from the front of the bus and the other offences relied on by the Employer, Mr. Sindall still deserved a significant suspension. In my view, the substitution of a ten-day suspension was warranted in the circumstances.

34Mr. O’Rourke concluded that Mr. Giraudy deserved more than a twenty-day suspension because he did not accept any responsibility for his actions and stated that he would act in the same way in the future. Since by statute he could not suspend him for more than twenty-days, Mr. O’Rourke felt that his only option was discharge. In my view, Mr. Giraudy’s failure to take any responsibility for his misconduct at the meeting with Mr. O’Rourke and his suggestion that he would behave in the same way in the future in similar circumstances were matters which Mr. O’Rourke was entitled to take into account and were factors which justified a greater penalty. When Mr. Giraudy testified in this proceeding, his assessment of his conduct changed considerably. Quite simply, he took responsibility for his misconduct and indicated that he would not repeat the misconduct in the future. Although Employer counsel argued that I should not accept this late conversion as genuine, I was satisfied that Mr. Giraudy had finally appreciated the seriousness of his misconduct and would not likely repeat such conduct in the future. Quite frankly, the position Mr. Giraudy took at the meeting with Mr. O’Rourke was ludicrous and silly and it would have been surprising if he did not eventually recognize this to be the case. Given his lengthy seniority, his discipline free record and his acceptance of responsibility for his misconduct, I concluded that it was appropriate to direct the Employer to reinstate Mr. Giraudy and to substitute a three-month suspension for the discharge. This significant suspension was warranted in part because of the stance Mr. Giraudy took in the meeting with Mr. O’Rourke. I was satisfied that this was not the kind of case which justified denying reinstatement to Mr. Giraudy and limiting the remedy to an award of damages.

35It was for the forgoing reasons that I decided to dismiss Mr. Chmurzynski’s grievance and to allow in part the grievances filed by Mr. Sindall and Mr. Giraudy.