GSB#2009-2824

UNION#2010-0337-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wiggans)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Alick Ryder Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

June 1 & 2, September 7, September 21, October 12, October 14 & 15, December 14, 2010, January 17, 2011.

Decision

1Mr. Wiggins was a Youth Services Officer (YSO) at Brookside Youth Centre for 10 years. At the time of the incident in question, June 14, 2009, he was working in Martin House, which was the house that held the most difficult youth at Brookside.

2He was terminated from his employment on January 6, 2010 for allegedly striking a handcuffed and restrained young person (Youth #1) with a closed fist.

3On the day in question, Mr. Wiggins responded to a call for assistance to the cell occupied by Youth #1. When he arrived, there was already a number of other YSO’s involved in securing and restraining Youth #1. As Youth #1 was bringing brought out of the cell, he was being held by three YSO’s, one on his right, one on his left and one behind him . He was handcuffed with his hands behind him.

4In Martin House there is a video recording system that continually records any motion in the hallways. The video does not look into the individual rooms.

5At a point in the video where Youth #1 is at the door but still in his cell, the video shows Mr. Wiggins cocking his right arm back so that his hand is beside his face. He then trusts his arm forward in a fast motion, similar to what one would do if he were throwing a punch. The right arm of Mr. Wiggins extends to its full length, but then his extended arm does not retract. Instead, Mr. Wiggins and others seem to push Youth #1 back into the cell, away from the door. That is the end of the incident.

6The nurse examined Youth #1 after the incident. She reported that he had “ 2 scratches noted Rt side of his neck. A bump also noted above Lt eyebrow”

7I heard from three eye witnesses to this incident; the Grievor, Mr. Wiggins, Mr. Ashby, who was on of the officers holding Youth #1 at the time of the incident and Mr. Thomson, who was standing directly behind Mr. Wiggins at the time of the incident.

8Mr. Wiggins testified that what he was doing at the time in question on the video was moving his arm in a rapid fashion with a semi closed fist so that he could grab Youth #1 by the shoulder and help redirect him through the door. He says that he succeeded in grabbing the left shoulder of Youth #1 and held onto the youths’ shoulder as he was pushed back into the room. He denies punching Youth #1 in the face or punching him at all. Between the time that Mr. Wiggins grabbed the left shoulder of Youth #1 and when the youth was pushed back into the room, Youth #1 kneed Mr. Wiggins in the groin at either the same time as Mr. Wiggins was grabbing him or just after Mr. Wiggins grabbed him.

9Mr. Ashby was holding Youth #1 on the youth’s left side when they approached the door when ‘ there was a pause at the door, I looked at the youth, I then saw a hand coming forward from a staff person, the arm came into the youth’s shoulder or biceps at the same time as the youth’s right knee came up. At that time I forced the youth back into the room.” He also testified that he did not see a punch landing on the youth’s face and furthermore, if that had happened, he would have seen it as he had a clear view of the youth’s face at that time.

10Mr. Thomson was standing directly behind Mr. Wiggins when the incident took place. He can be seen in the video also. He testified that he had a view of part the youth’s right side and of his head. At no time did he see anyone strike the youth in the head. He testified that as he did not see the youth’s left side he did not and could not see whether or not Mr. Wiggins grabbed the youth’s left shoulder. He said that if anyone had hit the youth in the head, he would have seen it.

11Despite the days of evidence on this issue, that is all the relevant evidence regarding the issue as to whether or not Mr. Wiggins punched Youth #1 in the head.

12When management made the decision to terminate Mr. Wiggins they had the extensive report of the Investigator who interviewed many more witnesses that I ever heard from. Notably the Investigator interviewed Youth #1, the person who said that he was punched. He also interviewed Youth #2, apparently an eyewitness. He also interviewed other YSO’s who were present. The Investigator came to a conclusion which management agreed with and relied upon in deciding to terminate the employment of Mr. Wiggins.

13Of course my job is different from that of the Investigator. I can only rely on admissible evidence that is subject to cross-examination. I have been very careful in this case to only consider such admissible evidence.

14As this is a discharge case, the onus of proof is on the Employer. The Employer must prove, on the balance of probabilities, with clear and cogent evidence, that the Grievor punched Youth #1 in the face.

15The video of Mr. Wiggins cocking his arm back is consistent with either a punch or a grab. The fact that the video shows that after extending his arm he does not retract it, is more consistent with a grab than a punch. The action of a punch invariably includes a retraction of the extended arm after the punch is thrown. That did not happen in this case.

16The medical evidence that there was a bump above the left eyebrow is consistent with being punched in the face but is also consistent with other types of force being applied to the face. This other application of force to the face could have easily happened at some other time during the episode. Prior to this specific incident the Youth #1 had been taken down in a forceful manner by YSO Gallina and then further forcibly restrained and handcuffed by three or more YSO’s. At this time he was face down on a bed which contained metal parts. After the incident, he was forcibly removed from the cell, taken down hallways and put in segregation. This bump over his left eyebrow could easily have happened at numerous other points in time. The video in question only catches about 10 seconds of the relevant time frame in which force was being applied to Youth #1, whereas the entire incident from initial application of force by YSO Gallina to when the youth left Martin House is over two minutes. Therefore, there was almost two minutes when extensive force was being applied to Youth # 1 that is not caught on video. Simply put, this is not sufficient evidence that would support the conclusion that the Grievor punched Youth #1 in the face or for that matter, that the youth was punched in the face at all, let alone by the Grievor.

17Moreover, the only eyewitnesses to the incident support the Grievors’ version and their credibility was not seriously undermined.

18Much was made about the fact that Mr. Ashley did not mention in his Occurrence Report or in his interview with the Investigator about the fact that he saw an arm coming over and grabbing the Youths’ shoulder, as he said in his direct examination. However his explanation that he did not include it in his report because it did not involve the use of force was a reasonable one. Similarly, he did not tell the Investigator about this issue as the Investigator asked him a serious of closed questions about whether he had seen anyone punch the youth in the face. The Investigator never put to Mr. Ashley any questions about the arm grabbing theory of Mr. Wiggins, even though the Investigator must have been aware of this explanation by Mr. Wiggins, as it was contained in the Occurrence Report of Mr. Wiggins dated June 15, 2009. The Investigator interviewed Mr. Ashley on August 3, 2009.

19The credibility of Mr. Thomson was attacked simply on the basis that he would lie because he is the Grievor in another grievance where he was disciplined for not reporting that he saw Mr. Wiggins punch the youth. I accept the fact that where a witness’s testimony could lead to him being disciplined if he told the truth, that there is a strong motivation not to tell the truth. However this does not mean that this witness is lying on this occasion, especially when his testimony is corroborated by other witnesses.

20The Grievors’ testimony about how he was grabbing the Youth, not punching him, is at least as plausible as the punching theory.

21As such the grievance is allowed. The Grievor is to be immediately reinstated to his former position with full back pay and seniority. I reserve jurisdiction to determine any matter arising from the interpretation and / or the application of these reasons.

22It is agreed between the parties that after I have heard the Union Policy grievance, there may be other remedies or compensation available to Mr. Wiggins.