GSB#2009-2825

UNION#2010-0337-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gallina)

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. Gallina was a Youth Services Officer (and Correctional Officer) at Brookside Youth Centre for 13 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 the following reasons, as set out in his termination letter.

1. You missed multiple opportunities to disengage from a confrontational situation with the young person and withdraw yourself from the room.

2. You engaged in a verbal confrontation with a young person regarding the removal of a food tray

3. There is substance to the allegation that you tossed a food tray and its contents at the young person

4. You brought the young person down onto his bed and engaged him in a headlock and used an unreasonable amount of force

5. During this altercation the young person was continually indicating “I am not resisting“, yet you continued to use an unnecessary amount of force on the youth.

6. Your actions and behavior were directly related to, and led to, the flooding that occurred in Martin House on June 14, 2009.

3When Management made the decision to terminate Mr. Gallina 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 assaulted by Mr. Gallina. 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. Gallina.

4Of 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. On the basis of the evidence before me at the arbitration, I will deal with each of the allegations set out above.

1. You missed multiple opportunities to disengage from a confrontational situation with the young person and withdraw yourself from the room.

5There are two aspects of this allegation, which I will treat separately.

6The first aspect relates to the issue as to whether the Grievor escalated the confrontation with the Young Person instead of de-escalating it. I heard extensive evidence from the parties on the Application of the UMAP policy, which stands for Understanding and Managing Aggressive Behavior. There are many aspects of this training, however the essence is that YSO’s at all times are to exercise various techniques to deescalate conflict with youths rather than engage in behavior that is likely to escalate the situation.

[7] The Ministry witnesses said that evidence that he failed to apply these techniques included the following:

a) he pointed his finger at the Youth

b) he failed to recognize actions of the Youth which indicated that the level of anger and frustration was escalating

c) he failed to call his supervisor when he realized that his techniques of de-escalation were not working.

8The only eye witness evidence regarding this issue comes from two sources, the video and the testimony of the Grievor. YSO Platt, who was also an eye witness to part of this incident, was not called by either party as a witness.

9The video shows that that the total time that elapsed between when Mr. Gallina first opened the door for the Youth and when he then entered the cell to retrieve the food tray was two minutes and two seconds. For the first 49 seconds, Mr. Gallina is seen talking to the youth while standing at the door. He is using some finger and hand gestures. Mr. Gallina then turns to talk to YSO Platt and they talk. YSO Platt then talks to the youth for about 25 seconds. During this time YSO Platt also uses hand and finger gestures. Then Mr. Gallina again talks to the Youth, this time for 42 seconds, at which time he then enters the cell and is no longer visible to the video camera. During this last 42 seconds, Mr. Gallina is pointing his fingers in a more directive fashion.

10As the video is only directed at the hallway and not inside the cell, we have no idea from the video how the Youth was reacting at the time. Furthermore as there is no audio feed, the video does not help us in determining who was talking and what they said.

11At this point it should be pointed out that the only information that the Ministry had directly from Mr. Gallina was that found in his Occurrence Report. Mr. Gallina was not interviewed by the Investigator, for reasons which will be dealt with in more depth in the Policy grievance regarding the Investigation. Suffice it to say that the first time Mr. Gallina had an opportunity to tell his side of the story, other than in the Occurrence report, was when he testified in this hearing as a witness for the Ministry.

12His Occurrence Reports of June 15, 2009 state as follows:

“Sir On Sunday, 4th June 2009 I was assigned to Martin house during the 0700-1900 hour shift.

At approximately 1830 hours I was assisting YSO Platt with feeding the young people who were agitated all day. After speaking to YP about his behaviour in the yard YP was very loud with what I thought was from earlier and not allowed to come out to chapel I opened his door and started talking to him and tried to deescalate him but was just not getting anywhere so I asked him if he was finished with his meal and he said yes. The meal was on the floor so I asked him to pass it to me, he told me to pick it up myself. I informed him the meal was placed in his hands and I would like it the same way as it was given to him. He stated to myself “you pick up the fucking meal” I then ordered him to pick up the meal tray from the floor and hand it to me again. YP stated “fuck you” when this writer entered the young persons cell to pick up the tray, when I had the young persons tray around my waistline the young person hit the tray with his right arm making me lose control of the tray. At this point I believed my person was in danger of being injured by assault, I immediately moved the young person to the back of the cell around the bunk area, he fell back on his mattress with this writer’s wrists located around the youth right arm, stopping any possible strikes towards me. I placed my forearm against the young persons chest holding him securely in position, as the youth continued to be physically non compliant, Other officers responded to the area the youth ahs restraints placed on him. He was escorted away form the area. Report respectfully submitted.”

“Sir, I Youth Services Officer L. GALLINA was working on June 14 2009 0700-1900, during the course of my duties I was involved in a physical restraint with Young Person, ordered the youth to hand me his meal tray several times, when this writer picked up the meal tray YP hit the tray away from me, I immediately moved the young person to the back of the cell, he fell on his bunk, I controlled his arm as he fell, he was attempting to strike this writer I placed my forearm across the young person’s chest, other officers arrived and took the young person away from the area.”

13From his Occurrence Reports we can see the following:

a) He knew that the Youth was agitated and very loud

b) His attempts at de-escalation were “not getting anywhere”

c) There was a series of escalating exchanges about who would pick up the food tray ending with the Youth saying to Mr. Gallina “fuck you”.

d) The only mention of physical aggression by the Youth was the hitting of the food tray by the Youth’s arm.

e) His reaction after having the food tray knocked out of his hands to restrain the youth was “immediate”.

14In his testimony, Mr. Gallina indicated that the Youth was upset about two matters, the presence of a new youth in Martin House which caused an increase in security measures and also that the Youth had accused YSO Clinton of putting his fingers in the food before it was served to the Youth. Mr. Gallina indicated that the Youth was frustrated at this point but not angry nor was he yelling. The youth only started to swear at Mr. Gallina when Mr. Gallina asked him to pick up his food tray. At that point there was an escalation in the Youth’s frustration. In response to this increased frustration, Mr. Gallina now ordered the Youth to pick up the tray. Presumably, prior to this he had only asked the Youth to pick up the tray. Immediately after the Youth was ordered to pick up the tray he told Mr. Gallina to “fuck off”. Mr. Gallina then entered the room to retrieve the tray himself.

15As he entered the room, the Youth was sitting on the edge of his bed. Mr. Gallina leaned over and picked the food tray off the ground. As he was getting up from that position, while the food tray was level with his waist, the Youth hit the tray with his arm. The tray landed in his face, spraying mashed potatoes and gravy over Mr. Gallina. Mr. Gallina testified that he was not hurt and that he did not think that the outburst was directed at him. Rather “I was just the vessel, he (the Youth) was going to take it out on me or Mr. Clinton.”

16Mr. Gallina then testified that after hitting the tray out of his hands, the Youth stood up directly in front of him and put his hands on Mr. Galina’s chest. Mr. Gallina said that he did not know if the Youth was trying to get past him (presumably to get out of the room, where he would have run into YSO Platt) or punch him. Mr. Gallina did not “wait to ask” and instead grabbed the Youth and pushed him onto the bed. He said that he used force because the Youth assaulted him by putting his hands on Mr. Gallina after the food tray was knocked out of his hands.

17Mr. Gallina said that he could not leave the room after the Youth put his hands on Mr. Gallina’s chest as there was no way he could leave the room without the Youth following him out of the room.

18On cross examination by the Union, Mr. Gallina added some more details to his testimony. He said that the food tray was about one to one and a half feet from the door of the room when he picked it up. He also said that it was a common practice to remove a food tray from a room.

19One part of Mr. Gallia’s testimony was especially troubling. The testimony about the Youth standing up and putting his hands on the Grievor’s chest after the tray was knocked over only came out in the Grievor’s oral testimony. This vital piece of evidence was not mentioned in either of his Occurrence Reports, nor was it referred to in the Union’s opening. On the other hand, as the Grievor was never interviewed by the Investigator, we will never really know whether this particular fact would have been told to the Investigator had he been asked a set of detailed questions, or whether this was an invention of the Grievor who was trying to buttress his story and improve his defence of self defence.

20However, having considered this issue carefully, I have come to the conclusion that the evidence about the Youth standing up and putting his hands on the Grievor’s chest is a fabrication intended to buttress his case for self defence. I have arrived at this conclusion for the following reasons:

a) YSO Gallina was well aware of the importance of putting in all the relevant facts in an Occurrence Report. The relevant section of the Use of Force Policy reads as follows

“In every instance where force has been used against a young person, all employees involved in or who are witnesses to the incident must submit an Occurrence Report.

The Occurrence Report must provide clear, concise and detailed information with respect to the nature of the threat posed by the inmate or young person and all of the circumstances surrounding the use of force.

Non Ministry employees and volunteers who witness force being used against a young person or have knowledge of an alleged physical assault on a young person are required to provide a statement of the incident.

All employees must complete and submit the requited Occurrence Reports prior to leaving duty.

The Only exception will be with the approval of the superintendent or designate.

Reports regarding the use of force shall minimally include:

• an accounting of the events leading to the use of force;

• an accurate and precise description of the incident, the reasons for employing force, and a detailed description of the technique(s) used;

• a description of the weapon used by the young person, if any, and the manner in which it was used;

• an “Accident/Injury Report” shall also be completed. An “Accident/Injury Report” shall be completed on every occasion when force is used and not only when a young person suffers any apparent injury;

• a list of all participants in and witnesses to the incident.”

21It is virtually inconceivable that a YSO would omit such a relevant fact as “the Youth stood up and placed his hands on my chest” from an Occurrence Report filed in relation to a Use of Force incident. Moreover, in his report he not only does not make any mention of these additional facts, he refers to the fact, in both of the Occurrence Reports that he “immediately moved the young person to the back of the cell” after the tray had been knocked over. In other words, in his Occurrence Reports he carefully fills in all the details of the important events, save and except this new fact about the Youth standing up and putting his hands on the Grievor’s chest.

b) Not only did he not mention these facts in his Occurrence Reports, he actually did insert the statement “at this point I believed my person was in danger of being injured by assault” where he presumably would have mentioned the issue of the Youth “standing up and placing his hands on my chest”. This shows that the Grievor thought at the time that if he could simply show that he had been assaulted by having the tray knocked over, he could justify the use of force by way of self-defence.

c) From virtually the beginning of this case, and certainly after the viewing of the facility that we took on the first or second day of this hearing, it has been a live issue as to whether or not the Grievor could have and should have simply left the room after the food tray was spilled over him by the Youth. In order to rely on self-defence, the person relying on the defence has to show that he had a reasonable fear that harm will occur to him in the future if he does not apply force. Therefore, even if the Youth did knock the tray out of the Grievor’s hand and caused food to land on him, this alone will not justify the use of force as there must be evidence that the Grievor had a reasonable belief that unless he applied force now, he or others could be subject to a further assault. In other words, even if the YSO is assaulted by a Youth, this alone does not justify the use of force, unless it can be shown that the YSO had a reasonable belief that a further assault may take place. To apply force simply in reaction to an assault, without the reasonable belief of a further assault, is to use force as a punishment, which is prohibited under the Use of Force rules. I believe that as the hearing went on the Grievor realized that his case was lacking any evidence as to a reasonable belief that a future assault could take place and in order to improve his defence, he “supplemented” his testimony with this “new “evidence.

22Even though I have found that the Grievor fabricated this evidence of the Youth standing up and putting hands on his chest, I still have to determine what effect this has on the case. In other words, would a reasonable person in the place of Mr. Gallina believe that there was a reasonable prospect of a further assault?

23The evidence is that youths at Brookside, and especially in Martin House, are often aggressive, short tempered and prone to hair trigger violence. I accept that Mr. Gallina was totally surprised when the Youth turned violent. Notwithstanding that he was bigger and taller than the Youth and that he was standing and the Youth was sitting, this does not mean that a reasonable YSO in that situation might not reasonably conclude that a further assault could be forthcoming. I therefore find on the balance of probabilities, that the Grievor had a reasonable belief that a further assault could occur. As such, unless the Use of Force Policy provides otherwise, he was entitled to use force as a means of self defense.

24The second aspect was the allegation that the Grievor should have withdrawn from the room after the youth had knocked the food tray out of his hands. At this point it is important to understand the Use of Force policy applicable at the time.

“Where physical intervention is required to control the behaviour of a young person, employees of Brookside Youth Centre must consider the principles of Non-Violent Crisis Intervention (NVCI) and Understanding and Managing Aggressive Behaviour (UMAB) and wherever possible utilize the techniques developed in the NVCI and UMAB training.

NOTE: The YJS manual Section 8 Physical Intervention is underdevelopment and awaiting policy updates. In the interim, the following Use of Force procedures shall be followed:

No employee shall use force against a young person unless force is required in order to:

(a) enforce discipline and maintain order within the facility;

(b) defend the employee or another employee or young person from assault

(c) control a rebellious or disturbed young person; or

(d) conduct a search,

(e) to prevent an escape

Where force is used against a young person, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the young person and all circumstances of the case.

Where an employee uses force against a young person, the employee shall file a written report with the Superintendent indicating the nature of the threat posed by the young person and all other circumstances of the case (R.R.O. 1980, Reg 649, s.7).

Force shall only be used as a defensive or control measure when absolutely necessary. It is not intended, and shall never by used, as a means of punishment.

Managers, will authorize the use of mechanical restrains if required.”

25The Union emphasized that the Grievors use of force was justified under (b) and (c) of the Use of Force policy. However the provisions of when you can use of force only come into play when the following precondition has been satisfied:

Force shall only be used as a defensive or control measure when absolutely necessary.

26Therefore the overriding question is not “Was the force used reasonable?“, rather the correct question is “Was the use of force absolutely necessary?” or to phrase it another way “Was there anything else the YSO could have done other than use force, even if the purpose was to enforce discipline or defend the employee from further assault.”

27Furthermore, the limitation of force to times where it is “absolutely necessary” means that it is not enough to say that the YSO had various options to choose from, some involving the use of force and some not, and that he made a judgment call to use force, and therefore cannot be disciplined for that use. Rather the YSO must show that there was no other viable option other than the use of force. If there were other viable options, then the YSO cannot use force.

28Let us reconstruct the situation. The Grievor has walked into the Youth’s room to pick up a tray which, by his own testimony is between one and one and a half feet from the door. As he is standing up with the tray, the Youth’s arm knocks over the tray, knocking the tray containing mashed potatoes and gravy onto him. The tray is on the floor. As I do not believe the story of the Youth standing up and putting his hands on the Grievor’s chest, I find that at the time in question, the Youth was sitting down and was not touching the Grievor’s body. This is the moment in time when we look at his options.

29One option was undoubtedly for him to restrain the Youth by force. This is what he did. However there was another option which did not require the use of force.

30The most obvious option was for Mr. Gallina to simply leave the room and close the door behind him. As he was facing the youth, he could have taken a step or two backwards, keeping care to not turn his back on the Youth. Remember, by his own admission he was only 12 to 18 inches from the door. The door swings closed easily and once it is held in place for a few seconds the door automatically locks. If there was any concern that somehow the Youth could have forced the door open before it had a chance to lock, there would have been two YSO’s on the outside of the door, Mr. Gallina and Mr. Platt. They easily could have held the door shut for the few seconds that it takes for the locks to activate.

31When asked about why he did not leave the room after the tray was knocked out of his hands, Mr. Gallina had a number of reasons. He said that there was a danger of tripping over a pair of shoes that were in the corner near the door or that the shoes in the corner would prevent the door from being closed. He also said that he might fall as a result of the mashed potatoes. He also mentioned that he could have run into Mr. Platt. However he also admitted that throughout this time period he had in fact opened and closed the doors a number of times without a problem. He also candidly said that he was not thinking of how he could remove himself safely at the time.

32I believe that this is the crux of the problem, namely that Mr. Gallina did not even consider the possibility of removing himself from the room, or to use the Union’s terminology “retreat”. In his examination in chief Mr. Gallina said “When an officer is assaulted, they never trained us in what to do other than physical restraint. They also trained me not to turn my back on a youth assaulting me. I was trained to protect myself and use minimal force to restrain the youth. They do not train us to retreat.”

33On this last point, the UMAB training emphasizes that de-escalation is the prime goal. As Mr. Bill Last, (Youth Centre Administrator at Brookside after the events in question), said in his examination in chief, “We are trained to back away if necessary, we don’t have to win” He also said “If a young person becomes violent in his room and there is an opportunity for the officer to leave the room, that is the correct action to take.”

34I find that Mr. Last has correctly set out what is expected of a YSO when faced with the situation like that facing the Grievor after the tray had been upset. He should have simply left the room and locked the Youth in his cell. If at that point the Youth engaged in further violence, there would be many other supports readily available to deal with the situation.

35I find therefore that the Grievor used force against the Youth when it was not “absolutely necessary” and as such was in violation of the Use of Force Policy.

2. You engaged in a verbal confrontation with a young person regarding the removal of a food tray

36I find that the video evidence and the Grievor’s testimony on this part of the case does not support the proposition that he was failing to follow the UNAB rules. It is a matter of judgment when to break off, and I find that up to the point of the upheaval of the food tray that the Grievor was acting in accordance with the UNAB training and was in fact trying to deescalate the situation. Whether he should have not entered the room to pick up the tray is a matter of judgment, which he is entitled to the benefit of the doubt.

3. There is substance to the allegation that you tossed a food tray and its contents at the young person

There was no evidence presented at the hearing that Mr. Gallina threw the food tray at the Young Person. The only evidence on this issue was that of Mr. Gallina himself, who testified that the Youth, while sitting on the bed, knocked the tray out of Mr. Gallinas’ hand while Mr. Gallina was leaning over to pick up the tray from the floor. I accept that testimony, thus this allegation has not been proven.

4. You brought the young person down onto his bed and engaged him in a headlock and used an unreasonable amount of force

There was no evidence that Mr. Gallina engaged the young person in a headlock. He did take the person down onto the bed, but the evidence was that if force was allowed, then Mr. Gallina applied the proper amount of force. Therefore this allegation has not been proven.

5. During this altercation the young person was continually indicating “I am not resisting “, yet you continued to use an unnecessary amount of force on the youth.

There was no such evidence that the young person uttered these words. Therefore this allegation has not been proven

6. Your actions and behavior were directly related to, and led to the flooding that occurred in Martin House on June 14, 2009.

This is a statement of what occurred after the event in question and may well be a consequence of the events, but is not in itself a ground for discipline. In other words, if the Grievor applied excessive force and there was no disturbance, then he would still be guilty of applying excessive force. However if the force that was applied was appropriate and lawful, then a subsequent disturbance would not be relevant.

37I am therefore left with the conclusion that Mr. Gallina was in violation of the Use of Force Policy in that he used force when it was not “absolutely necessary” in that he should have and could have simply removed himself from the room after the Young Person hit the food tray out of his hands.

38What is the right penalty for this infraction? I find that the penalty of discharge is too severe for the following reason:

1. In essence, the Ministry has proven only one part of one of the reasons set forth in the termination letter. Therefore the conduct that I have found the Grievor engaged in was substantially less serious than was determined to have happened by the decision maker.

2. I do not find that Mr. Gallina exercised the force that he did for any malicious or improper reasons. Rather, I do think that Mr. Gallina simply did not seriously consider that he had another viable option, which was to withdraw from the room and thereby avoid the use of any force. Having chosen to use force, he did so in a responsible manner, however he was still in violation of the Use of Force Policy.

3. He is a long service employee with a clean record.

39Absent the restrictions in Section 7 (4) (a) of the Crown Employees Collective Bargaining Act, I would have substituted a four week suspension for the discharge. However that section, reproduced below prevents me from ordering that remedy.

Restrictions on substituted penalties

(4) 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; or

(b) has sexually molested a resident or a client. 2001, c. 7, s. 17 (1).

Definitions

(5) In subsection (4),

“client” means a person to whom services are provided in a community resource centre that is designated under section 15 of the Ministry of Correctional Services Act; (“client”)

“facility” means,

(a) premises where services are provided by the Minister under the Child and Family Services Act,

(b) Repealed: 2008, c. 14, s. 51 (2).

(c) The Ontario School for the Deaf, The Ontario School for the Blind or a school for the deaf or a school for the blind continued or established under section 13 of the Education Act,

(d) a psychiatric facility under the Mental Health Act,

(e) a correctional institution under the Ministry of Correctional Services Act,

(f) a place of temporary detention under the Youth Criminal Justice Act (Canada),

(g) a youth custody facility under the Youth Criminal Justice Act (Canada), or

(h) any other workplace where the employee works in carrying out the duties of his or her position, including but not limited to those that he or she is required to carry out at any of the places mentioned in clauses (a) to (g); (“établissement”)

“resident” means a person who is an inmate, patient, pupil or resident in or is detained or cared for in a facility. (“résident”) 1993, c. 38, s. 7 (5); 2001, c. 7, s. 17 (2, 3); 2001, c. 13, s. 13; 2006, c. 19, Sched. D, s. 6; 2008, c. 14, s. 51.

Substitute penalty

(6) In substituting a penalty under subsection 48 (17) of the Labour Relations Act, 1995 in circumstances in which it is restricted by subsection (4), the Grievance Settlement Board may provide for the employment of the employee in another substantially equivalent position. 1993, c. 38, s. 7 (6); 1995, c. 1, s. 20 (4).

40Therefore, under the authority provided in the above section, I order the Employer (which I remind the parties is not the Ministry but The Crown in Right of Ontario) to

a) Immediately reinstate Mr. Gallina to the payroll and to pay him all of his back pay and benefits (less the four week suspension) and any mitigation income earned since his discharge and;

b) Provide Mr. Gallina with another substantially equivalent position that does not involve direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client, as those terms are defined in Section 7(5) referred to above.

41I retain jurisdiction over all matters involving the interpretation and application of this award.