GSB#2014-3306, 2014-3748

UNION#2014-0248-0032, 2014-0248-0037

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Maude)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 10, June 3, August 11, September 11, November 13, 25, 26, December 3 and 18, 2015.

Decision

1On October 22, 2014, two Correctional Officers (“COs”) at the Hamilton-Wentworth Detention Centre (“HWDC”) were disciplined by Superintendent B. Laughlin as a result of their involvement in a use of force incident on January 20, 2014. CO S. Taylor was issued a 20-day suspension for the following reasons:

.That on January 20, 2014 you observed an excessive use of force upon inmate Woods in Segregation cell #1. You engaged in serious misconduct in carrying out your role, responsibilities and duties as a Correctional Officer and as a Ministry representative when you failed to provide an accurate and precise description of all circumstances surrounding this Use of Force and therefore made a concerted effort and purposeful attempt to conceal the excessive use of force, in contravention of Ministry policies and procedures.

.That you did not follow the use of force reporting process when you failed to verbally notify the supervisor that force was used.

CO R. Maude was dismissed from his employment for the following reasons:

.That the force used by you on inmate Woods on January 20, 2014 in the Segregation cell #1 was unreasonable, unjustified and unnecessary, and therefore inconsistent with training and excessive.

.That you failed to supply a complete and accurate account of events during the incident in your Occurrence Report.

.That you did not follow the use of force reporting process when you failed to verbally notify the supervisor that Force was used.

.That you violated the Ministry’s Statement of Ethical Principles.

2CO Maude filed a grievance on November 3, 2014, challenging his dismissal. He claimed in his grievance that the administration at the HWDC “wrongfully and maliciously” terminated his employment and that it conducted a “fraudulent, flawed and biased investigation with intent to personally attack the grievor and his family, and to predetermine the outcome of the allegations against the grievor.” He requested “complete reinstatement”, lost overtime, $1,000,000 in “personal damages and damages to family” and a letter of apology. CO Taylor filed a grievance on November 21, 2014, challenging the 20-day suspension. He made similar claims in his statement of grievance to those made by CO Maude and his desired settlement included “$10,000 in personal damages and damages to his family.”

3The primary issues that arise in this case can be summarized as follows. CO Maude did strike inmate Woods once in the head with a closed fist in Segregation cell #1 (“Seg. #1”). He did not disclose that he had punched the inmate in the head when he completed his Occurrence Report (“OR”) on January 21, 2014. He subsequently did admit to this misconduct and he agreed with the Employer’s contention that the use of force was “unreasonable, unjustified and unnecessary and therefore inconsistent with training and excessive.” The Union conceded that the Employer did have cause to discipline CO Maude, but took the position that his discharge was not an appropriate penalty in the circumstances and that a suspension should be substituted for the discharge. The Union did not pursue most of the claims and some of the remedial requests referenced in CO Maude’s grievance. CO Taylor was in Seg. #1 when CO Maude punched inmate Woods in the head, but he claims that he did not see anyone punch the inmate. The Union requested that the 20-day suspension be removed from CO Taylor’s record and that he be compensated for his losses. The Union also did not pursue most of the claims and some of the remedial requests referenced in CO Taylor’s grievance. The Employer took the position that the discipline imposed by Superintendent Laughlin on COs Maude and Taylor was appropriate and requested that their grievances be dismissed.

4The parties and counsel made every effort to call the relevant evidence in this case as expeditiously as possible. This effort was undoubtedly assisted by the fact that the key event in Seg. #1 took place in a matter of seconds and was captured on video. Employer counsel filed the Correctional Services Oversight & Investigations report (“CSOI report”) prepared by Inspector J. Micucci without calling Inspector Micucci to testify. Many documents were entered on consent. Counsel also agreed to certain facts which resulted in the calling of fewer witnesses.

5The Employer called Superintendent Laughlin and Mr. G. Ireland, Provincial Coordinator, Use of Force Program, at the Ontario Correctional Services College, to testify. Superintendent Laughlin reviewed the video, the CSOI report and related audio files, the relevant ORs and the information he had received about what had occurred at the relevant allegation meetings from Mr. D. King, Deputy Superintendent (“D/S”), Administration. He consulted with others about the appropriate disciplinary response and he testified that he was advised to discharge both COs Maude and Taylor. He testified about why he decided to discharge CO Maude and to suspend CO Taylor for 20 days. Mr. Ireland has testified in a number of cases at the GSB as an expert on the use of force in a correctional setting. He had reviewed the package of material, including the video, which related to the use of force in Seg. #1 on January 20, 2014. Mr. Ireland testified about the use of force issues that arose in this case. In addition to COs Maude and Taylor, the Union called Mr. K. Antilla, a CO at the HWDC, and Mr. D. Aitken, a recently retired CO who was present in Seg. #1 at the relevant time on January 20, 2014. CO Antilla, a former police officer, is an experienced CO who performs a number of important roles at the HWDC. He participates in the institution’s Mentoring Program, is a member of the Ceremonial Unit and he has been on the Institutional Crisis Intervention Team (“ICIT”) for seventeen years. He has been a team leader for ICIT. CO Antilla also testified about some use of force issues relevant to this case and his opinion of CO Maude as a CO based on working with him for many years. Mr. Aitken testified about the use of force incident on January 20, 2014, and the ORs that he had completed in relation to that incident.

6In determining the facts, I have reviewed the video many times (there is no audio with the video), the documentary evidence, including the CSOI report, and the testimony of the witnesses. There were relatively few disputes on the facts. To the extent there were conflicts in the evidence, I resolved them by applying the usual criteria and by determining what was most probable having regard to the totality of the evidence.

7Prior to becoming a CO, Mr. Taylor had worked as a personal support worker assisting persons who were developmentally challenged. He began working as an unclassified CO at the HWDC on February 16, 2004, and he became a classified CO in December 2007. CO Taylor does not have a disciplinary record and his performance appraisals have been very good. A manager made the following comment in his most recent performance appraisal: “Mr. Taylor is a competent Correctional Officer. He would be an asset to any staff compliment. His strong personality helps him deal with difficult clients in our institution. His calm and efficient manner makes him consistent in how he handles a crisis… Great job! Keep up the good work!”

8CO Maude began working as an unclassified CO at the HWDC on August 6, 1987, and a year later he became as a classified CO. He is married and his spouse is also a CO at the HWDC. He has three children from a previous marriage and his spouse has two children from a previous marriage. Two of the children are at university and still depend on him for support; a son is mildly handicapped and requires occasional financial assistance. CO Maude testified that he has received a number of commendations for the performance of his duties at the HWDC. One of them dated October 23, 2013, from D/S Operations T. Bradley was filed as an exhibit in this proceeding. CO Maude has also received very good performance appraisals. A manager made the following comments in his most recent performance appraisal: “Mr. Maude is an enthusiastic member of the General Duty Officer Team. Mr. Maude works well with his peers and supervisors. He completes his General Duty Responsibilities in a timely manner. Mr. Maude is a problem solver. Mr. Maude is truly an asset to the General Duty Officer team. Mr. Maude is an enthusiastic employee who likes to offer solutions to problems.” Without referencing the sunset clause in the Collective Agreement, Union counsel asked CO Maude if he had received any discipline during his 28+ years as a CO. CO Maude indicated that sometime in the past he had received a one day suspension for calling a supervisor a “dickhead”, but that the penalty for this infraction was later reduced to a written reprimand. During cross-examination, Employer counsel asked him whether he had forgotten about the 1-day suspension he had received on November 19, 2012, for not attending to work his scheduled hours and/or refusing to follow orders from a supervisor and CO Maude replied that he did not forget, but that he did not think it was relevant. For about six weeks starting in August 2012, the COs at the HWDC did not work their scheduled shifts and claimed that they were engaged in a health and safety work refusal. Without detailing the terms of the Memorandum of Settlement that resolved the work refusal, the Employer ultimately decided to impose a 2-day suspension without loss of pay on six COs and a 1-day suspension without loss of pay on all remaining COs. It was in this context that CO Maude received the 1-day suspension on November 19, 2012. The Union grieved the suspensions and the proceeding at the GSB that involves these grievances is ongoing. Although Employer counsel submitted that CO Maude’s view on the relevance of the 1-day suspension suggested that he did not take discipline seriously, I am not prepared to draw such a conclusion in the circumstances. CO Maude’s disciplinary record then for his 28+ years of employment at the HWDC consisted of a written reprimand and a 1-day suspension that has been challenged by a Union grievance. There is no indication that Mr. Laughlin relied on a disciplinary record when he decided to terminate CO Maude’s employment.

9On January 20, 2014, COs Taylor and Maude worked a 12-hour shift that started at 8:00 a.m. and ended at 8:00 p.m. CO Taylor was working as the Medical Officer in the Healthcare Unit (“HC Unit”) and CO Maude was working as a General Duty Officer. The use of force incident involving inmate Woods started in the HC Unit after 7:00 p.m. and ended in Seg. #1 just before 7:30 p.m. There is no dispute about the events of the use of force incident that occurred before inmate Woods was placed in Seg. #1 and there is no issue about the propriety of the conduct of the COs who were involved in the incident until after the inmate was placed in Seg. #1. It is therefore unnecessary to describe in great detail what had occurred before the inmate was placed in Seg. #1.

10Inmate Woods is a diabetic who requires insulin. As the sole Medical Officer posted in the HC Unit, CO Taylor’s first interaction with inmate Woods was during the morning medical parade. RN D. Pitton had advised Dr. Tittley that inmate Woods’ blood sugar level had dropped significantly in a short period of time. Dr. Tittley then discussed changing the dosage of his medication with inmate Woods to address his low blood sugar. Inmate Woods became upset at this suggestion. He became abusive to the doctor, told her that she was not his doctor and that she could not change his medication. Inmate Woods attended the diabetic parade in the afternoon for the purpose of checking his blood sugar level and to take insulin, if necessary. RN Pitton and a student nurse were in the HC Unit at the time, along with CO Taylor. Inmate Woods became very upset about the medication the nursing staff intended to give him. He was swearing and speaking loudly as his aggression towards the nursing staff escalated over the issue of his medication. CO Taylor made an effort to calm down the inmate and to convince him that the nursing staff was just trying to help him. After inmate Woods had returned to his unit, CO Taylor observed that RN Pitton was shaken by the encounter with inmate Woods. She expressed concerns to him about her safety and the safety of inmate Woods, given his low blood sugar. CO Taylor was aware that inmate Woods would be attending the evening diabetic parade starting after 7:00 p.m. so he advised Operations Manager (“OM”) P. Ricker about the escalating behaviour of inmate Woods with the hope that another CO would be assigned to assist him. CO Taylor also asked CO Maude to assist him in the HC Unit during the evening diabetic parade. Primarily as a result of CO Taylor’s concerns about inmate Woods, COs Maude and Aitken and OM G. Serpa were present in the HC Unit at the commencement of the evening diabetic parade, in addition to CO Taylor, RN Pitton and a student nurse. Inmates, including inmate Woods, were in the waiting area outside the HC Unit. There is a camera in the waiting area, but there is no camera located inside the HC Unit. RN Pitton advised OM Serpa that she wanted inmate Woods placed in Segregation on a food monitor because of his fluctuating blood sugar levels. OM Serpa called Segregation and requested that a cell in that unit be made available for inmate Woods.

11Inmate Woods was the first inmate to be brought into the HC Unit during the evening diabetic parade. He sat on a stool and immediately started swearing and becoming belligerent with the nursing staff about the dosage and type of medication that he was about to receive. As he got angrier and continued to swear loudly, CO Maude asked him to behave himself and to watch his mouth. As he told CO Maude that he had not been involved earlier, inmate Woods got off the stool and made an aggressive move toward CO Maude. This is when the use of force incident began. CO Maude reacted by initially grabbing the inmate’s shirt and then his hand slipped off the shirt to the inmate’s chin area. By this time, COs Taylor and Aitken and OM Serpa stepped in to take control of inmate Woods and he was taken to the floor. Handcuffs were used to control the inmate as he was struggling on the floor. His left wrist was handcuffed first and eventually the COs succeeded in freeing the inmate’s right arm in order to handcuff his wrists behind his back. Inmate Woods was helped off the floor and was then taken to Segregation, with CO Taylor holding his left arm and CO Maude in control of his right arm and with CO Aitken and OM Serpa following. Before the escort arrived at Segregation, the inmate’s coveralls were coming off so they were removed and the struggling inmate was walked backwards the rest of the way.

12The description of what took place in Seg. #1 is based on the video and the testimony of witnesses. Seg. #1 is approximately 6 feet by 8 feet. The camera is located on the side of the cell opposite the bunk and points down towards the bunk. The duration of the video is a little less than three minutes. The time on the video indicates that inmates Woods, with COs Taylor and Maude each holding one of his arms, entered Seg. #1 at about 7:26:55 p.m. The COs took inmate Woods directly to the bunk and positioned him facing and bent over the bunk so that he could easily be controlled and the handcuffs easily removed. CO Taylor was on the inmate’s left side and CO Maude was on his right. OM Serpa and CO Aitken entered the cell right behind the inmate and COs Taylor and Maude. The video then shows the back of the inmate as his legs are touching the side of the bunk and as his upper body is bent over the bunk. CO Maude is on the right side of the inmate, holding the inmate’s right arm with his left hand and at the same time attempting to keep the upper part of the inmate’s body on the bunk. CO Taylor is on the left side of the inmate with his outstretched left arm in contact with the inmate’s left arm. CO Taylor has turned sideways with his back almost against the cell wall and is facing the inmate. Inmate Woods is swearing at the Correctional staff and is turning his head and struggling. CO Maude told him to calm down and that the handcuffs were coming off. OM Serpa is behind the inmate with his left hand on the handcuffs, facing for a moment towards the cell door as he is attempting to get the key for the handcuffs from someone on his right. In his position facing the inmate, CO Taylor is standing straight with the inmate’s lower back and handcuffed arms right in front of him. The inmate’s head is on his left as CO Maude is exerting more control on the upper part of the inmate. Inmate Woods was not compliant with CO Maude’s instructions and he continued to swear, turn his head and struggle. At about 7:27:11, about 16 seconds after they had entered Seg. #1, CO Maude took his right arm with a closed fist and very quickly punched inmate Woods once on the right side near the back of the head. It took no more than a second or two for CO Maude to execute the punch to the inmate’s head. The amount of movement of his right arm was minimal because he did not take his right arm back in order execute the punch with more force. At the time of the punch, CO Taylor was still turned towards the inmate with the inmate’s handcuffed wrists right in front of him. The video captures a right side view of CO Taylor’s head as he is facing the inmate with CO Maude on the other side of the inmate. About 5 seconds after the inmate was struck in the head, CO Taylor let go of the inmate as OM Serpa moved towards the left side of the inmate as he struggled to remove the handcuffs. After a few seconds, CO Taylor returned to the inmate’s left side and resumed contact with the inmate’s arm as OM Serpa returned to a position behind the inmate. The inmate appeared to lose control of his legs and when the handcuff came off his left wrist, his left arm was shaking. The inmate appeared to be in medical distress with seizure-like symptoms. Once the handcuff was removed from the inmate’s left wrist, CO Taylor let go of the inmate’s arm at about 7:27:45 and about 5 seconds later he left Seg. #1. CO Maude turned to CO G. Malcolmson who was at the cell door, told him that he was exhausted and asked him to take over. CO Maude released the inmate’s right arm at about 7:27:52 when CO Malcolmson took control of the inmate. CO Maude then left Seg. #1 about 7 seconds after CO Taylor had left the cell. COs Maude and Taylor were in Seg. #1 for less than a minute. They each returned to the HC Unit, continued with their duties and then left the institution at the completion of their shift. After COs Taylor and Maude left Seg. #1, OM Serpa and CO Malcolmson remained in the cell with inmate Woods. Inmate Woods eventually regained control of his extremities, stood up, took off his shirt and got into what appears to be a fighting stance. Once he was alone in the cell, the inmate was standing, appeared to be upset and was rubbing back of his head. No one initiated a Code White to address any medical issues inmate Woods may have experienced during the use of force incident.

13At about 8:00 p.m. on January 20, 2014, RN K. Pickard assessed inmate Woods on her medication round. She noticed that inmate Woods had a small bump to the occipital area (behind the ear) on the left hand side of his head and that he had superficial scratches on his arm. She observed that he was alert, oriented and had no medical distress. There is no evidence that she assessed the right side of his head. During her CSOI investigation interview with Inspector Micucci, RN Pickard expressed the opinion that the reactions of inmate Woods in Seg. #1 during the use of force incident could have been due to his sugar levels.

14COs Taylor and Maude each completed a Use of Force OR relating to the January 20, 2014, use of force incident during the early morning of January 21, 2014. They did not discuss the events that took place in Seg. #1 after the incident on January 20 and they did not consult each other while they prepared their ORs on the following day. The Employer did not suggest otherwise. Given that there was no time to complete an OR on January 20 before the completion of their shift, OM Serpa gave COs Maude and Aitken permission to do their ORs on the following day. The ORs of COs Taylor and Maude are similar in that they contain much more detail about what had occurred prior to their entry into Seg. #1, and very little detail about what had occurred in Seg. #1. Indeed, in referencing what had occurred in Seg. #1, both of their ORs simply indicated that the inmate was placed in the cell, that his handcuffs removed by OM Serpa and that they left the cell and returned to the HC Unit. Their ORs made no reference to CO Maude punching inmate Woods in the head once with a closed fist. It is common knowledge amongst COs know that there is a camera in Seg. #1 and that management reviews the video of all use of force incidents.

15Management at the institution reviewed the ORs and the video on the use of force incident that occurred on January 20, 2014. Management noticed that the contents of the ORs did not match what was on the video. OM Serpa approached COs Maude and Aitken and told them that D/S Bradley wanted them to provide more detail in their OR about what had occurred in the HC Unit. CO Maude completed an addendum to his Use of Force OR on February 9, 2014. It was very brief and essentially provided information that was in his original OR about what had occurred in the HC Unit. Given his instructions from OM Serpa, he did not include any further information about what had taken place in Seg. #1. CO Taylor was not asked to provide an addendum to the OR he had completed on January 21, 2014. It appears that Security Manager (“S/M”) L. Coccia did not see the punch by CO Maude on inmate Woods when she reviewed the video. D/S Bradley, however, did see the punch when he reviewed the video. Superintendent Laughlin looked at the video on February 12, 2014, after it was brought to his attention by D/S Bradley. After reviewing the video and the relevant ORs, Superintendent Laughlin recommended that a CSOI investigation be conducted, he instructed S/M Coccia to inform the Hamilton Police Service (“HPS”) about CO Maude’s use of force and he had inmate Woods transferred to the Brantford Jail. On February 12, 2014, Superintendent Laughlin suspended CO Maude with pay, pending an investigation. He advised CO Maude that he was being suspended because of a use of force incident in Segregation. After reflecting on what Superintendent Laughlin had said, CO Maude asked him if he was talking about the time he had punched the inmate in the head. This was the first time that CO Maude had advised the Employer that he had punched inmate Woods in the head in Seg. #1. Superintendent Laughlin indicated that he was not prepared to discuss the matter and the meeting ended. Superintendent Laughlin also suspended OM Serpa pending an investigation. OM Serpa retired before the disciplinary process was completed.

16S/M Coccia reported CO Maude’s excessive use of force to the HPS on February 13, 2014. A HPS document entitled “Occurrence Details” (“OD document”) contains information about the HPS’s investigation into the reported assault by CO Maude on inmate Woods. No one was called to identify this document and speak to its contents, but there is evidence before me that references matters covered by the OD document. The general report notation entered by Officer Drobnich on February 13, 2014, referring to the video, indicates that “Maude appears to place his right hand on (inmate’s) head and shove it downward in an abrupt manner.” When making an entry on February 14, 2014, Officer Licop indicates that he was initially unable to locate any assault. After attending at the HWDC, Officer Licop indicated that he watched the video three times and that “There is no clear punch or strike to (inmate). It still appears that the force applied was to maintain control.” The HPS interviewed CO Maude on February 20, 2014. Officer Fletcher asked the questions and Officer Licop monitored the interview. When Officer Fletcher asked what happened when the inmate looked up at him, CO Maude answered by saying “I gave him a punch to the back of the head. I gave him a little bang. I could have used my palm, but I didn’t. It wasn’t very hard.” When asked if the inmate had any injuries, CO Maude replied, “God no, his head barely went down an inch, it was really to get his attention.” When asked about the inmate’s seizure-like symptoms, CO Maude told the Officers that there was no doubt that the inmate was faking a seizure. In an entry on the OD document after the interview, Officer Licop referred to what CO Maude said at the interview and what he observed on the video and wrote “The force used by Maude would be considered a soft empty hand technique. The force used by Maude was reasonable and minimal. No injury was caused to (inmate) and he does not wish to pursue a criminal complaint.” The matter was cleared as non-criminal by the HPS and the HPS advised the HWDC that CO Maude would not be criminally charged for the assault on the inmate.

17CO Taylor was interviewed by Inspector Micucci on March 7, 2014. He was not shown the video so his statements about what had occurred in Seg. #1 on January 20, 2014, were based only on his memory of the event. The relevant features of his interview are as follows. The inmate seemed to be struggling as he waited for the handcuffs to be removed. He noticed a movement from CO Maude with his peripheral vision and when he looked up at the inmate, he noticed that the inmate appeared to be crying and he wondered what had happened. When he wrote his OR the following day he did not include the part about the movement or the blur because he would be making an assumption about what had occurred. He could not say with certainty that someone struck the inmate.

18CO Maude was interviewed by Inspector Micucci on March 11, 2014. The relevant aspects of his interview are as follows. As OM Serpa was trying to remove the handcuffs, the inmate kept up his verbal abuse. He closed his fist and bopped the inmate once on the right side of the back of his head; it wasn’t hard, and it was just to get his attention, and he told him to just shut up and listen. As they were about to remove the handcuffs, he asked CO Malcolmson to relieve him because he was exhausted from wrestling with the inmate. The inmate pretended to go into a seizure. When he wrote his OR the next day, he explained the use of force up to the Segregation part; the rest slipped his mind.

19The allegation meetings for COs Taylor and Maude took place on September 29, 2014. CO Taylor’s discipline letter includes the following summary of what he said during his allegation meeting:

…A discussion ensued regarding the January 20, 2014 incident involving inmate John Woods. You stated that the inmate kneeled on the floor, torso over the bunk and that you saw a movement from the other officer, but not sure what you saw. The inmate was upset, crying and hyperventilating, the manager was having difficulty removing the handcuffs, you then returned to your duties. You advised that you completed your report the next morning and my review of the report clearly indicates that you left out important information related to what you witnessed. Notwithstanding your insufficient reporting of the incident, you also admit that you should have submitted a report that night, acknowledging that you now understand the need to include more detailed information and in the future you will complete thorough reports.

20CO Maude’s termination letter included the following summary of what he had said during his allegation meeting:

…A discussion ensued regarding the January 20, 2014 incident involving inmate John Woods. Whereby you stated that in the heat of the moment you had tapped the inmate on the back of the head to get his attention, there was no intent of malice in your action, you just wanted to calm him down. You advised that in retrospect you should not have used a closed fist but should have considered other options, also indicating that you would not do it again.

21The relevant aspects of CO Taylor’s testimony are as follows. He indicated the he and CO Maude took the inmate into Seg. #1 and positioned him with his chest over the bunk. OM Serpa struggled to take the handcuffs off the inmate. Once the handcuff was removed from the inmate’s left wrist, he left the cell right away because his presence was no longer required, he was mentally exhausted from the entire use of force incident and he still had duties to perform at the HC Unit. He indicated that the information contained in the OR he had prepared on the following day was truthful. With respect to the first allegation in his discipline letter, he stated that he did not see CO Maude punch or use excessive force on inmate Woods in Seg. #1 and it was for this reason that he made no reference to this in his OR. With reference to what he told Inspector Micucci about noticing a movement or a blur from CO Maude, he stated that he did not know what he saw and he did not report this because he was not sure what it was and he did not want to speculate about it in his OR. He indicated that neither OM Serpa nor anyone else directed him to call a Code White in connection the seizure-like movements exhibited by the inmate.

22During cross-examination, CO Taylor stated that he was aware that he had an obligation to report an excessive use of force and indicated that if he had observed CO Maude strike the inmate, he would have reported it. When asked why his OR was very detailed when describing the events that had occurred before Segregation, but quite brief about what had occurred in Segregation, he stated that he included what occurred to him at the time he wrote his OR. He was shown the video and asked if the part where CO Maude struck the inmate in the head was the movement he saw and he stated that he could not say. When asked about why he disengaged from inmate Woods right after the punch, and then quickly re-engaged with the inmate, he said that he could not recall. He acknowledged that he should have included in his OR that he saw a movement from CO Maude, heard the inmate crying and saw the inmate twitching with seizure-like symptoms, but that he did not remember all of these details when he completed his OR. Employer counsel put to him that he briefly disengaged from the inmate immediately after the punch and left Seg. #1 quite soon after the punch because he did see CO Maude punch the inmate in the head and that he wanted to remove himself from a difficult situation. CO Taylor denied that this was the case and reiterated that he left Seg. #1 primarily because he was mentally exhausted and still had duties to complete at the HC Unit. Employer counsel also put to him that he did not include the punch or the movement from CO Maude, the inmate crying and the inmate’s seizure-like movements in his OR because he did not want to breach the code of silence and subject himself to being labeled a “rat”. CO Taylor also denied that this was the case.

23CO Taylor testified that the 20-day suspension had a significant impact upon him. He referred to the difficulty he had in explaining the suspension to his family and indicated that to a certain extent there was a monetary impact. There was pressure at the workplace because some people assumed he had reported the whole incident. More importantly, it troubled him that he would be viewed as a different person by his peers and supervisors because his honesty was in question. He indicated that some people cannot believe that he was in Seg. #1 but did not see CO Maude strike the inmate in the head.

24The relevant aspects of CO Maude’s testimony are as follows. He indicated that after he and CO Taylor had entered Seg. #1 and had placed the handcuffed inmate’s upper body over the bunk, the inmate continued to swear and curse at the COs, and that he was turning his head and struggling. He told the inmate to calm down; the handcuffs were coming off. The inmate continued to swear and struggle; he appeared to be angry and he was not paying attention and was not responding to verbal commands. It was at this point that he gave the inmate a tap on the back of the head and told him to calm down. He struck him to get his attention without malice and without intending to hurt the inmate. The inmate did not impose a threat to him or to others in Seg. #1. He agreed that punching the inmate was inconsistent with his training and that it was unreasonable, unjustified, unnecessary and excessive as claimed by the Employer in its first allegation. He agreed to this characterization of his misconduct even though it appears that the HPS described the force he used as “reasonable and minimal.” He did not justify his conduct by referring to the fact that he had not received Defensive Tactics training as required by Ministry policy. Soon after he struck the inmate he asked CO Malcolmson to take over because he was tired, given his age and the physical effort required to control the inmate. Based on his years of experience and being a diabetic himself, he did not believe that the inmate was experiencing a real seizure. He did not initiate a Code White because the decision to do so was up to OM Serpa, the senior officer.

25CO Maude testified that he had received permission from OM Serpa to write his OR on the following day. He did not include in his OR the fact that he had struck the inmate, but acknowledged that this fact was reportable and should have been included in his OR. He indicated that he simply did not think about this when he was writing his OR on the following day. He indicated that he was not trying to hide the fact that he had struck the inmate. He was aware that there was a camera in Seg. #1 and that management reviewed the video of all use of force incidents. He also assumed that OM Serpa saw him strike the inmate. He was asked for an addendum to his OR, but only for the purpose of expanding on what had taken place in the HC Unit.

26CO Maude was asked in chief how the Employer could trust him to perform his CO duties in the future. He indicated that he made a mistake, had apologized for it and was truly sorry for striking the inmate. He stated that was just trying to get the inmate’s attention and was not trying to hurt him. He indicated that over his 28+ years as a CO that he had not punched an inmate before and that he guaranteed that it would not happen again. When asked a similar question later he reiterated what he had said previously and added that one small mistake seemed so minor in relation to losing his job and pension.

27During cross-examination, CO Maude was asked about some of the claims and remedies he had referenced in his grievance and whether he blamed the Employer and others for his predicament. CO Maude indicated that he now does not blame anyone else, because he recognized that he was the one at fault. He was angry when he wrote his grievance, not at the Employer, but at himself and he stated that he is still angry at himself. As he watched the video, he agreed that he was holding the inmate down and that the inmate could not get up when he hit him and he denied that he punched the inmate to punish him for not complying with his directions. He reiterated that from what he observed of the inmate’s movements before he left Seg. #1 to return to the HC Unit that the inmate was faking a seizure. His past experience with inmate seizures is that there is foaming at the mouth, a lot of shaking and great difficulty in holding the inmate down and from what he observed, inmate Woods did not exhibit this pattern. He was asked how he did not think about punching the inmate when he wrote his OR the following day when he claimed this was the only time he had punched an inmate and yet he was able to recall the incident when he was being suspended. He reiterated that he just did not think about punching the inmate when he wrote his OR, but was able to remember it later because he was told by Superintendent Laughlin that he was being suspended for an incident in Segregation. It was put to CO Maude that he did not sound that remorseful and he was asked if he was remorseful for punching the inmate or for the damage done to his family by his discharge. CO Maude stated that he was remorseful and that he was remorseful for both punching the inmate and for the damage to his family because of his misconduct.

28CO Maude was asked in chief to describe the impact of the termination of his employment. His response can be summarized as follows. He has been unable to secure another job and believes that this is likely because of his age. The financial impact on his family has been considerable given that the discharge has put him in a position where he cannot support his family; he may be forced to sell the family home. He is not in a position to financially assist the children at university as much. He had planned on retiring in three years, but the discharge has cost him 50% of his pension. The emotional impact of losing his CO position has also been considerable. He finds it difficult to function on a day-to-day basis. He doesn’t sleep or eat well; he takes anti-depressants and has had difficulty concentrating. He indicated that he had contemplated suicide and came close to committing suicide, but changed his mind.

29He completed his testimony in chief by indicating that he understands that it was wrong to punch the inmate in the head in Seg. #1 on January 20, 2014. He stated that he is sorry for punching the inmate and that this one little mistake would never happen again.

30During his investigation, Inspector Micucci consulted with Mr. J. Lee, Provincial Coordinator, Defensive Tactics Programs, about the use of force by CO Maude in Seg. #1 on January 20, 2014. Mr. Lee concluded that it was not necessary in the circumstances for CO Maude to strike inmate Woods, regardless of whether he used an open or closed hand strike, that the force used was inconsistent with training and that it was excessive. Based on his review of the incident, Mr. Ireland agreed with Mr. Lee’s evaluation. Mr. Ireland indicated that the inmate did not pose a physical threat in Seg. #1 as the handcuffs were about to be removed. He stated that there was no reason to use a distraction technique when an inmate was restrained in handcuffs. With respect to CO Taylor and his position on the left side of the inmate, Mr. Ireland stated that he was in position to see CO Maude strike the inmate. He commented that the video shows that there was a lot taking place during the process of removing the handcuffs. Mr. Ireland was asked in chief and in cross about the proper procedure for removing handcuffs and what a back-up CO was expected to look out for. He indicated that COs were not trained to only watch the handcuffs when they are being removed, but to look at the entire inmate to see if the inmate is compliant. He agreed in cross that handcuffs could be used as a weapon and that CO Taylor could have focused on the inmate’s left arm when the handcuff was initially removed from that arm. He stated that a COs focus might be drawn to movement, but that the focus should be on the entire inmate. He also expressed the view that the ORs at issue were not complete. He agreed in cross that COs are trained not to include speculation or to express opinions in their ORs, but to include only what they observed. Mr. Ireland was asked to comment on CO Maude’s training record and the fact that the last time he had received the mandatory Defensive Tactics training was in April 2009. Given that this training should be given every two years, Mr. Ireland indicated that this training had expired for CO Maude in 2011, was not consistent with policy and that his training record was “abysmal” in light of the requirement. He noted that Defensive Tactics training includes distraction techniques.

31CO Antilla was also asked about where a CO’s focus would likely be when handcuffs were removed. Similar to the testimony of Mr. Ireland, he indicated that handcuffs can be used as a weapon and that a CO may look to the handcuffed arm when handcuffs were being removed, but that the general focus should always be on the entire inmate. Mr. Antilla has been involved often in use of force situations and he described how these situations create an adrenalin spike during the event with a return to a relaxed state when the event is over. Mr. Antilla testified that he has worked with CO Maude many times over a period of eleven years, often in use of force situations. He described CO Maude as one of the top COs at the HWDC and indicated that he would work with him anywhere at the institution and at anytime. He stated that he had never observed CO Maude use excessive force an inmate.

32CO Aitken, as he then was, was involved in the use of force incident with inmate Woods in the HC Unit and in Seg. #1. He received permission from OM Serpa to complete his OR in the early morning of the following day and he did complete his OR on January 21, 2014. OM Serpa approached him in February 2014, and told him that D/S Bradley wanted him to prepare an addendum to his OR to clarify what had occurred in the HC Unit. He complied with this request by providing additional information about what had occurred in the HC Unit with inmate Woods. CO Aitken agreed in cross with the proposition that if he was aware of other matters not limited to the HC Unit, he would have an obligation to disclose them. CO Aitken indicated that he had engaged in many use of force incidents and that such events increase your heart rate, followed by a return to normal once the emergency is over.

33The thorough final submissions from counsel can be summarized as follows. Employer counsel submitted that CO Taylor did see CO Maude strike the inmate and that he intentionally did not include this observation in his OR. He argued that this was a serious breach of his obligations as a CO and that the 20-day suspension was an appropriate penalty. He also argued that the 20-day suspension was an appropriate penalty even if I found that CO Taylor did not witness CO Maude punch the inmate because of CO Taylor’s failure to include in his OR many details of the use of force incident in Seg. #1 which CO Taylor acknowledged should have been included in his OR. With respect to CO Maude, Employer counsel argued that he had committed a very serious offence when he used excessive force against the inmate. He submitted that such conduct by a CO and peace officer was entirely inconsistent with the duty to care for an inmate and constituted a serious breach of trust. He maintained that CO Maude’s failure to include the fact that he had punched the inmate in his OR also constituted a serious breach of his obligations as a CO and that his explanation that this matter had slipped his mind when he prepared his OR the next day was not credible. Counsel submitted that CO Maude only admitted to punching the inmate when it was obvious to him that he had been caught, so that his admission was not a significant matter in his favour and that his apology and expression of remorse are suspect. Counsel also submitted that his characterization of his misconduct as a minor matter is an indication that he does not recognize the seriousness of his misconduct and leaves open the possibility that the misconduct might be repeated. Counsel argued that these factors and the seriousness of his misconduct do not tip the scales in favour of reinstatement even when taking into account CO Maude’s seniority and discipline record. In support of his submissions, counsel relied on the following decisions: OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2003-3597 et al. (Petryshen); OPSEU (Esser) and Ministry of Community Safety and Correctional Services (2015), GSB No. 2011-3658 et al. (Watters); OPSEU (Marshall et al.) and Ministry of Community Safety and Correctional Services (2013), GSB No. 2012-1308 et al. (Abramsky); OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 0670/01 (Herlich); OPSEU (Khan) and Ministry of Community Safety and Correctional Services (2012), GSB No. 2010-0606 (Briggs); OPSEU (Gallina) and Ministry of Children and Youth Services (2011), GSB No. 2009-2825 (Fisher); and, Re British Columbia and B.C.G.E.U. (Correctional Services Component) (1987), 1987 CanLII 8881 (BC LA), 27 L.A.C. (3d) 311 (Hope).

34Union counsel argued that the Employer had not established with clear and cogent evidence that CO Taylor observed CO Maude strike the inmate in Seg. #1. He submitted that there was therefore no justification for giving him a 20-day suspension for not reporting the excessive use of force. He argued that the only ground the Employer relied upon when it gave CO Taylor the suspension was based on its conclusion that he did witness CO Maude punch the inmate and that the Employer did not rely on the fact that he did not include other details of what had occurred in Seg. #1 in his OR. Counsel submitted therefore that a finding that CO Taylor did not observe CO Maude strike the inmate must result in a direction to the Employer to remove the 20-day suspension from his record and to compensate him for his losses. As noted previously with respect to CO Maude, the Union takes the position that the Employer did have cause to discipline him, but that a discharge was not an appropriate response in the circumstances. Union counsel emphasized that the Employer did not give sufficient weight to CO Maude’s seniority and discipline record. Counsel also referred to the nature of the infraction, CO Maude’s admission of wrongdoing, his commitment not to engage in similar conduct in the future, and a number of other factors to support the position that a lesser penalty was warranted in the circumstances of this case. Counsel argued that CO Maude’s explanation for not including the punch to the inmate’s head in his OR was plausible given that the OR was prepared on the day after the incident and that he knew that there was a camera in Seg. #1 and that every use of force video was reviewed by management. Union counsel submitted that CO Maude should be reinstated to employment at the HWDC and that a suspension of four weeks should be substituted for the discharge. In addition to OPSEU (Gallina) and Ministry of Children and Youth Services, supra, Union counsel relied on the following decisions: OPSEU (Sindall/Talbot) and Ministry of the Solicitor General & Correctional Services (1997), GSB No. 164/96 et al. (Gray); Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville); OPSEU (Thomas Gaston) and Ministry of Correctional Services (1989), GSB No. 0117/83 (Jolliffe); OPSEU (Jones) and Ministry of Correctional Services (1992), GSB No. 1900/90 (Verity); OPSEU (Thibert, McGill, Jung) and Ministry of Correctional Services (1982), GSB No. 556/81 (Barton); OPSEU v. The Crown in Right of Ontario (Ministry of Correctional Services), unreported Divisional Court decision dated February 6, 1984; OPSEU (Thibert, McGill, Jung) and Ministry of Correctional Services (1984), GSB No. 556/81 (Verity); OPSEU (Thibert, McGill, Jung) and Ministry of Correctional Services (1985), GSB No. 556/81 (Verity); Her Majesty the Queen in Right of Ontario, as represented by the Minister of Correctional Services v. Ontario Public Service Employees Union, and the Grievance Settlement Board, unreported Divisional Court decision dated December 18, 1986; OPSEU (Karl Van’t Hulenaar) and Ministry of Correctional Services (1982), GSB No. 555/81 (Jolliffe); and, Re Alberta and AUPE (Amoah) (2013), 116 C.L.A.S. 313 (Power).

35The Employer has for some time considered the excessive use of force by a CO on an inmate to be one of the most serious infractions, if not the most serious, that a CO can commit. The Employer’s response has generally been to terminate the employment of a CO who has used excessive force on an inmate. The Employer also considers the failure to report an excessive use of force incident to also be a serious matter that deserves a significant disciplinary response. It is not entirely surprising that Superintendent Laughlin was advised to discharge CO Taylor for failing to report the punch by CO Maude on an inmate. A review of the more recent decisions illustrates that the GSB has recognized the validity of the Employer’s perspective on the excessive and unjustified use of force by a CO on an inmate. The GSB has generally not interfered when the Employer has elected to terminate the employment of a CO for such an infraction or when it has elected to impose significant discipline for the failure to report such an infraction. The approach by the GSB is evident from the following passages in OPSEU (Esser), supra:

422The use of excessive force against an inmate constitutes a serious breach of trust. It breaches a CO’s obligation to provide care and control of inmates in a safe and professional manner; brings the administration of justice into disrepute; damages the reputation of the Ministry; and subjects it to the possibility of financial liability. In my view the force used by CO Esser on August 31, 2011, at both locations, was fundamentally contrary to his obligations as a CO and served to irreparably compromise the employment relationship.

423The authorities relied on by the Employer speak to the breach of trust which occurs when a CO uses excessive force against an inmate. The Vice-Chair in Beltrano et al commented as follows on this point:

“The key factors in assessing the appropriateness of the penalty in this case are the seriousness of the offence and the false denial of the grievors about committing the offence. As noted previously, COs are responsible for the care, custody and control of inmates and as peace officers they occupy positions of trust. As arbitrators and the Courts have recognized, the physical assault of an inmate by a CO without cause constitutes a breach of trust of the highest order and a most serious offence…

The conduct of the grievors was fundamentally contrary to their obligations as

COs. By itself, this conduct is indicative of an irreparable breakdown in the

employment relationship. Their denial of the offence serves to compound the

breach of trust and further indicates that the employment relationship cannot

be rehabilitated…”

The arbitrator in Re British Columbia Government Employees addressed the breach of trust issue from a somewhat different vantage point. He there observed:

“If a corrections officer abuses the right to use force, the likelihood is that any complaint would founder in a case where it was a corrections officer’s word against the word of an inmate. That reality gives rise to the second area of vulnerability, being the vulnerability of an inmate’s credibility. One can anticipate that where an allegation of assault comes down to the difference between the word of a corrections officer and the word of an inmate, the word of the corrections officer will carry greater weight for a number of self-evident reasons.

The very fact of that vulnerability raises in a corrections officer a significant duty of trust. The employer is entitled to treat a breach of that trust as evidence that a corrections officer does not possess the attributes essential to the proper performance of what must be seen on the evidence as a potentially frustrating and provocative role where integrity and self-control are important, even vital, qualities.”

36In OPSEU (Marshall et al.), supra, the Vice-Chair had before her the discharges of three COs, each with over twenty years of seniority. CO Sidhu was discharged for using “excessive force on an inmate by slapping him across the face during a strip search, and then covering it up by being untruthful to the Employer during an investigation and obstructing a CISU investigation.” COs Marshall and Warling were discharged because they “witnessed the slap but did not report it and also covered it up.” The Vice-Chair found that the COs did commit the infractions alleged by the Employer. After referencing the Beltrano et al. decision, she addressed CO Sidhu’s situation as follows:

129The GSB, however, has upheld the discharge of a C.O. for excessive use of force, even where the use of force was considered “relatively minor” and no injuries resulted. In Re OPSEU (Horan), supra at p. 18, the grievor was found to have lost control “which culminated in a push and a few swift kicks administered to the inmate.” The Board determined at p. 18 that “on the basis of clear and cogent evidence that, on the balance of probabilities, the grievor did (in however minor a fashion and with no resulting injuries) assault the inmate and was subsequently less than thruthful about what had taken place.” The Board upheld the discharge although it noted that the result may have been different had the grievor had a significant level of years of service or she had acknowledged her wrongdoing and demonstrated some remorse.

130In this case, Sidhu has significant seniority, but there has been no acknowledgement of any wrongdoing. On the contrary, he was untruthful from the outset and covered up what occurred. He lied about it throughout the investigation, to the CISU and at the arbitration hearing. Consequently, although he is a senior Correctional Officer, I find that the combination of these two actions constitutes just cause for discharge. His seniority, under the circumstances, is insufficient to mitigate what occurred. I conclude that there was just cause for discharge.

The Vice-Chair noted that although COs Marshall and Warling had not used excessive force, “Their wrong-doing was covering it up. They lied by omission on their original Occurrence Report. They were untruthful during the investigation, to the CISU and to this Board.” The Vice-Chair ultimately concluded that “their discharge should be mitigated due to their long and unblemished service to the Ministry. However, because they persisted in the cover-up throughout the investigation, their reinstatement is to be without compensation, benefits or the accumulation of seniority.”

37I will make two further comments about the GSB decisions that address excessive use of force issues. Employer counsel referred to my comment in OPSEU (Beltrano et al.), supra, that the conduct of the grievors, “by itself, … is indicative of an irreparable breakdown in the employment relationship” as support for the proposition that discharge is the appropriate penalty for any excessive use of force by a CO on an inmate. As Union counsel noted, the comment was only a reference to the nature of the excessive use of force exhibited by the grievors in that case and not a general comment about penalty in a use of force case. The second comment relates to the Union’s reliance on older excessive use of force cases in support of its position that CO Maude’s discharge was not warranted. In my view, the older decisions are of limited value for this purpose. In OPSEU (Sindall/Talbot) and Ministry of the Solicitor General & Correctional Services, supra, a 1997 decision involving the HWDC, the two discharged grievors were found to have used excessive force on an inmate as they were taking him from his living unit to Segregation. In determining whether discharge was an appropriate response, the Vice-Chair noted that “Discharge has not been the employer’s invariable response to every misconduct which could be characterized as involving the unnecessary use of force.” Such a comment would not be valid today. The Vice-Chair reinstated the grievors and substituted a 15-day suspension for each grievor primarily because he was “not persuaded that the conduct of either grievor was more serious than the conduct for which another correctional officer in the very same institution was given a 15 day suspension in 1992…There is no evidence of an announced change of attitude toward such conduct since 1992.” It is fair to say that since then there has been a change of attitude about the excessive use of force by a CO on an inmate. In OPSEU (Horan), supra, in dealing with a “discrimination” argument and a request to substitute a lesser penalty for a discharge in an excessive use of force case, the Vice-Chair commented at page 21 as follows:

At the risk of oversimplification, 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.

CO Taylor

38The significant factual dispute here is over whether CO Taylor observed CO Maude punch the inmate in the head. CO Taylor has consistently stated that his reason for not including a reference in his OR to CO Maude punching the inmate was because he did not witness CO Maude punch the inmate. He told Inspector Micucci during the CSOI investigation that he noticed a movement from CO Maude in his peripheral vision, but that he could not say that someone punched the inmate. Primarily based on a review of the video, Superintendent Laughlin concluded that CO Taylor did see CO Maude strike the inmate. Mr. Ireland expressed the view that CO Taylor was in a position to witness CO Maude strike the inmate. As Union counsel noted, no one present in Seg. #1 at the relevant time gave evidence about what CO Taylor had observed, other than CO Taylor. The resolution of this key factual dispute has proven to be a challenging exercise.

39COs Taylor and Maude brought the inmate into Seg. #1 and positioned him facing and bent over the bunk. The task at hand for the correctional staff was to remove the handcuffs from the inmate and to exit the cell. CO Taylor was standing on the left side of the inmate, in physical contact with the inmate’s left arm. He was obviously close to and turned towards the inmate. From Mr. Ireland’s and Mr. Antilla’s testimony, CO Taylor’s obligation based on his training was to keep an eye on the entire inmate and not to focus exclusively on one part of the inmate, such as his handcuffed wrists. I take their testimony on this point to mean that a CO is trained to scan the entire inmate in the sense that a CO should not keep his or her eyes focused on one part of the inmate for too long such that this might cause the CO to miss some action by a different part of the inmate. I do not take their testimony to mean that a CO will necessarily be in a position to observe everything that is happening with the inmate at any given moment. For example, if a CO at one moment is looking at the legs and feet of an inmate because of a concern that the inmate might kick him or her, it is likely that at that moment the CO would probably not notice what the inmate might be doing with his head. In his position next to the inmate, CO Taylor was in a position to most readily observe what was immediately in front of him, namely the inmate’s handcuffed wrists. Given his closeness to the inmate, it is conceivable that CO Taylor might not have noticed what was occurring near the inmate’s head at any given moment if he was looking at the inmate’s handcuffed wrists or at an area away from the inmate’s head.

40As Mr. Ireland noted, there was a lot going on in Seg. #1 at the relevant time. CO Taylor to some extent and CO Maude to a greater extent were attempting to keep control of the inmate as he was struggling and swearing at them. OM Serpa, with his hand on the handcuffs, was initiating the process of removing the handcuffs. CO Maude was instructing the inmate to stay calm and at about 7:27:11 he punched the inmate once with a closed fist. The striking movement of his right arm was minimal and took place very quickly. To observe the punch on the video it is necessary to watch very carefully because it is very easy to miss. It is not surprising that S/M Coccia watched the video without seeing the strike and that the HPS had some initial difficulty in identifying when the excessive use of force had occurred. And although I appreciate that observing the punch on the inmate by watching the video is different from being present in Seg. #1 at the time, I note that I had to review the video a number of times before I could ascertain what had occurred simply because the punch to the inmate’s head came from a relatively minimal and very quick movement of CO Maude’s arm.

41I have considered those aspects of the evidence which the Employer identified to support the conclusion that CO Taylor did observe the punch to the inmate. Employer counsel pointed to the fact that CO Taylor released his hold on the inmate soon after the punch, the fact that he left Seg. #1 immediately after the handcuff on the inmate’s left wrist was removed and the fact that he excluded from his OR many details of what had occurred in Seg. #1. Employer counsel also submitted that CO Taylor’s version of what he observed in Seg. #1 was primarily influenced by a desire not to breach the code of silence. I am not convinced that these factors assist in establishing that CO Taylor witnessed CO Maude punch the inmate. Although CO Taylor could not recall why he released the inmate’s arm soon after the punch to the inmate had occurred, it appears from the video that he did so because OM Serpa had moved to the left side of the inmate and temporarily displaced CO Taylor from his position as he struggled to remove the handcuffs. Once OM Serpa returned to his position behind the inmate, CO Taylor immediately re-engaged by returning to the inmate’s left side. The fact that CO Taylor quickly re-engaged with the inmate is inconsistent with the notion that he saw the punch and wanted to flee a difficult situation. I accept as true CO Taylor’s testimony that he left Seg. #1 soon after the handcuff on the inmate’s left wrist was removed because it was no longer necessary for him to stay, that he was mentally exhausted from the use of force incident and that he still had duties to perform at the HC Unit. I also accept as true that he left out some details from his OR because they did not occur to him when he completed his OR the following day. Although I recognize that the code of silence has a pervasive influence at a correctional facility and can explain why a CO would be reluctant to inform on another CO, the code of silence has no relevance in resolving the factual dispute over whether CO Taylor actually witnessed CO Maude punch the inmate.

42Ultimately, the key factual dispute has to be decided on the basis of what is disclosed by the video. As I noted previously, the video shows that CO Taylor is on the left side of and turned towards the inmate when CO Maude punched the inmate. The video captures the right side of CO Taylor’s head and it appears that his head is facing towards the inmate’s handcuffed wrists that are being held by OM Serpa. However, given that the camera is up and behind CO Taylor, the video does not show in which direction CO Taylor’s eyes were looking at the precise moment when the quick punch to the inmate’s head occurred. To his credit, CO Taylor does not insist that he was looking at the inmate’s handcuffed wrists when the punch occurred because he cannot recall with certainty where he was looking at the relevant time. All he can tell us is that he saw a peripheral movement by CO Maude, but he did not observe CO Maude punch the inmate in the head. It is entirely conceivable that he might have observed some movement by CO Maude if his eyes were momentarily focused away from the inmate’s head, yet at the same time not be able to see CO Maude punch the inmate. I can understand why Superintendent Laughlin came to the conclusion that CO Taylor did witness the strike on the inmate. As stated by Mr. Ireland, there is no doubt that CO Taylor was in a position to see CO Maude strike the inmate. The question however is whether CO Taylor did witness CO Maude punch the inmate and more precisely whether the Employer has established on the balance of probabilities that CO Taylor witnessed CO Maude punch the inmate in the head. Taking into account CO Taylor’s denial about witnessing the strike on the inmate, the quickness and the minimal nature of the punching movement and the fact that the video does not reveal where CO Taylor was actually looking when the quick punch to the inmate’s head occurred, it is my conclusion that the Employer has not established on the balance of probabilities that CO Taylor witnessed CO Maude punch the inmate.

43In dealing with the Union’s contention that the only ground the Employer relied on for suspending CO Taylor was that he did not report that he had witnessed CO Maude strike the inmate, I have reviewed the suspension letter issued to CO Taylor by D/S King dated October 22, 2014, and the testimony of Superintendent Laughlin, the decision maker. Although not entirely clear, the first allegation in the suspension letter does appear to focus only on the excessive use of force upon inmate Woods and the allegation that CO Taylor made a “concerted and purposeful attempt to conceal the excessive use of force…” The testimony of Superintendent Laughlin removes any uncertainty about why CO Taylor received the 20-day suspension. He was asked near the end of his evidence in chief about why he gave 20 days rather than a less severe suspension. He answered succulently by stating that CO Taylor had witnessed CO Maude strike the inmate, that he did not report it and that this was a serious matter. Superintendent Laughlin’s response was limited to the issue of whether CO Taylor saw CO Maude punch the inmate. CO Taylor acknowledged that he should have reported seeing the movement of CO Maude, the inmate crying and the inmate’s seizure-like movements. However, I agree with the Union’s submission that CO Taylor was not disciplined for failing to report these matters. The end result then is that the Employer has failed to establish on the balance of probabilities that it had just cause to discipline CO Taylor. It is obvious that CO Taylor cannot be disciplined for not reporting in his OR or to his supervisor an excessive use of force that he did not observe.

CO MAUDE

44At about 7:27:11 p.m. on January 20, 2014, in Seg. #1, CO Maude physically assaulted inmate Woods by punching him very quickly in the head once with a closed fist. I accept as true many of the features of this assault referenced by CO Maude in his testimony and by Union counsel in his submissions. The assault was committed on the spur of the moment and represents an isolated event by a CO with a lengthy career with the Ministry. The inmate was not compliant with CO Maude’s directions to stop struggling and to remain calm. CO Maude’s purpose in striking the inmate was to get his attention and not to punish the inmate. These features of the incident however do not alter the essence of CO Maude’s misconduct. The inmate’s wrists were in restraints behind his back; he was bent over the bunk and under the control of the COs. Although he was not completely compliant, the inmate did not pose any risk of harm to himself or to the Correctional staff. The unjustified and excessive use of force on the inmate by CO Maude in these circumstances is inconsistent with his CO training and represents a breach of trust by a peace officer whose primary responsibilities are the care, custody and control of inmates. Whatever CO Maude’s purpose was for using excessive force on the inmate, the punch to an inmate’s head had the potential to cause the inmate harm. He knew that the inmate was a diabetic whose sugar levels were unstable. Although there is no evidence to prove that the strike to the inmate’s head caused the medical distress exhibited by the inmate in the video, the physical assault on the inmate had the potential for creating unintended consequences. Striking a handcuffed inmate on the head would most likely have the effect of increasing the inmate’s level of agitation and anger, rather than having the effect of calming the inmate. This appears to have been the case with inmate Woods since the video shows him taking off his shirt and adopting a fighting stance once the medical distress ended. These considerations illustrate that CO Maude’s excessive and unjustified use of force on the inmate constituted serious misconduct.

45There is no dispute that CO Maude was obliged to report that he punched the inmate in the head and that he did not comply with this obligation. His failure to report the strike on the inmate is also serious misconduct. During his interview with Inspector Micucci and during his testimony, CO Maude indicated that he just did not think about punching the inmate when he wrote his OR and testified that he was not trying to hide the fact that he punched the inmate. Contrary to the submission of Union counsel, I find it difficult to accept this explanation. CO Maude knew there was a camera in Seg. #1 and he was aware that management reviewed the video in all use of force situations. OM Serpa was present in Seg. #1 when the strike on the inmate occurred, but a review of the video suggests that it was unlikely he witnessed CO Maude strike the inmate as he was focused on retrieving the key for the handcuffs and on removing the handcuffs. There is no indication in the evidence that OM Serpa advised CO Maude that he had witnessed the strike on the inmate. It is most probable that CO Maude recognized that punching the inmate was serious misconduct and did not reference the incident in his OR with the hope that the quick punch to the inmate’s head would not be detected. For a CO who had never previously used excessive force on an inmate, it is difficult to believe that he simply did not think about punching the inmate when he completed his OR about twelve hours later. Therefore, it is my view that CO Maude did not reference punching the inmate in his OR or tell his supervisor about the punch because he was attempting to hide his misconduct and that his assertion to the contrary is not credible. The Employer disciplined him for not disclosing that he had punched the inmate and not because the explanation he gave to Inspector Micucci for not reporting the punch was not credible. However, his incredible explanation as to why he did not include a reference to punching the inmate in his OR is a factor that can be considered when addressing the appropriateness of substituting a different penalty. The two central grounds relied on then by the Employer to discharge CO Maude was his excessive use of force on an inmate and his failure to report the fact that he had used excessive force on inmate Woods. Given the Ministry’s general approach to the excessive use of force by a CO on an inmate and its insistence on the proper reporting of such matters, it is not particularly surprising that Superintendent Laughlin decided to terminate CO Maude’s employment.

46As the Union conceded, the Employer has established that it had cause to discipline CO Maude for his misconduct. This leaves the issue of whether it is just and reasonable in all of the circumstances to substitute a different penalty for CO Maude’s discharge. In determining this issue, arbitrators will consider a number of factors, but in the case of serious offences they are particularly influenced by whether the grievor has acknowledged and admitted the serious misconduct and whether there is a likelihood that the misconduct might be repeated if the employee were to be reinstated. Arbitrators will consider a number of relevant factors to determine whether the employment relationship has been irreparably damaged. In many of the recent excessive use of force cases decided by the GSB, the Vice-Chair found the employment relationship to be irreparably damaged in circumstances where the CO was found to have used excessive force, but consistently denied having done so. The Employer noted in CO Maude’s termination letter that his significant breach of trust had resulted in irreparable damage to the employee/employer relationship. Having considered the relevant factors and the submissions of counsel on this point, it is my conclusion that this employment relationship has not been irreparably damaged and that it is just and reasonable in the circumstances of this case to substitute a lesser penalty for CO Maude’s discharge. My reasons for coming to this conclusion are as follows.

47CO Maude has 28+ years of seniority and over that entire period he has been disciplined twice for relatively minor infractions. The Employer did not rely on any prior discipline to support his discharge. The evidence indicated that he had received very positive performance appraisals and CO Antilla’s testimony confirmed that CO Maude has been an above average CO at the HWDC. An employee’s seniority and discipline record are not determinative when considering whether it is appropriate to substitute a lesser penalty for serious misconduct, but in light of all of the relevant factors in this case, CO Maude’s seniority and virtually unblemished discipline record strongly favour the substitution of a different penalty.

48CO Maude did admit to punching the inmate in the head when he was suspended by Superintendent Laughlin. It is likely that he understood at that meeting that the Employer had discovered that he had punched the inmate from reviewing the video. I agree with Employer counsel’s submission that an admission at that time is of less value than if it had been made earlier. Nonetheless, his admission at that stage is still worthy of some credit. CO Maude admitted that he punched the inmate during the COSI investigation, during the allegation meeting and in his testimony at the hearing. He not only admitted punching the inmate, but he acknowledged that striking the inmate constituted an unjustified and excessive use of force. The circumstances in this respect are very different from those in OPSEU (Marshall et al), supra, where CO Sidhu did not admit to any wrongdoing and lied throughout the process, including at the arbitration hearing. In my view, CO Maude does recognize that punching the inmate constituted serious misconduct. When he referred to his punch of the inmate as a minor mistake, he was doing so only when he balanced the incident with his length of service and the loss of his employment. As I noted previously, his decision not to report the punch to the inmate’s head was based on a likely belief that his excessive use of force was anything but a minor matter. CO Maude has also apologized and expressed remorse for his misconduct. While an apology and expressions of remorse can be suspect from an employee who has been caught and then discharged for engaging in serious misconduct, I am satisfied that his apology and expression of remorse are genuine in that they relate to his having engaged in the serious misconduct and not merely to the fact that he was caught and had been discharged. His admission of his misconduct, his recognition of the seriousness of his misconduct and his genuine apology and expression of remorse are factors which also favour the substitution of a different penalty.

49CO Maude’s excessive use of force on the inmate was an isolated, spur of the moment event that occurred near the end of a use of force incident that began in the HC Unit. In retrospect, he has recognized that he should have used some other means to calm the inmate. The fact that a punch to an inmate’s head occurred on the spur of the moment does not lessen the seriousness of the misconduct, but it is nonetheless a factor which favours the substitution of a different penalty.

50CO Maude’s discharge has had a significant emotional and financial impact on him and on his family. At 57 years of age he has been unable to secure other employment. The financial impact of the discharge includes the loss of the opportunity to retire in a few years on a full pension. The financial and emotional impact flowing from his discharge is also a factor that favours a different penalty.

51CO Maude has indicated that he will not use excessive and unjustified force on an inmate again if reinstated. His lengthy service, his discipline record, the fact that his excessive use of force was an isolated event and the fact that he would not want to again experience the financial and emotional consequences that flowed his discharge give some credence to his statement that he would not repeat his serious misconduct if reinstated. CO Maude recognizes that he made a serious mistake and there is every indication that there is virtually no risk of him repeating his misconduct if he is returned to employment at the HWDC. Although his misconduct was very serious and constituted a serious breach of trust, I am satisfied in the circumstances of this case that such a breach has not irreparably damaged the employment relationship. It is appropriate that CO Maude incur a very significant penalty for his excessive and unjustified assault on an inmate, for not reporting that he punched the inmate and for not being truthful about why he did not include a reference to punching the inmate in his OR. However, based on the above factors, I am satisfied that the penalty should not be the termination of his employment.

52In virtually one sentence at the end of his submissions, Employer counsel requested that I award CO Maude damages in lieu of reinstatement if I were to find that the Employer did not have just cause to terminate his employment. Union counsel undoubtedly did not consider this a serious request because he did not address it during the course of his submissions. The arbitral jurisprudence suggests that there are a limited set of circumstances where it would be appropriate to consider awarding the relatively rare remedy of damages in lieu of restatement. The relevant principles that govern the awarding of damages in lieu of reinstatement suggest that those circumstances are not present in this case. I therefore find it appropriate to direct the Employer to reinstate CO Maude to employment at the HWDC. Given CO Maude’s excessive use of force on an inmate, my authority to direct his reinstatement to a particular correctional officer position, such as his former GDO position, is restricted by subsection 7(4) of the Crown Employees Bargaining Act (“CECBA”).

53The general authority for an arbitrator to substitute another penalty is set out in subsection 48(17) of the Labour Relations Act, 1995. This subsection provides as follows:

Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.

54The general power in subsection 48(17) of the Labour Relations Act, 1995, to substitute a different penalty as set out above is restricted by subsections (4), (5) and (6) of section 7 of the CECBA, which provide as follows:

7.(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;

(b) has sexually molested a resident or a client.

7. (5)In subsection (4),

“facility” means

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

“resident” means a person who is an inmate, patient, pupil or resident in or cared for in a facility.

7. (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.

55In the circumstances of this case, I have the jurisdiction to substitute a penalty for CO Maude’s discharge as long as I reinstate him to a substantially equivalent position that complies with the restriction in 7(4) of the CECBA. The restriction in 7(4) does not apply to the Employer. It is therefore open to the Employer to place CO Maude into the GDO position that he had occupied prior to his discharge. Faced with a direction to reinstate CO Maude and the strong evidence that indicates that he is unlikely to repeat his misconduct, I anticipate that the Employer will give consideration to returning him to a GDO position. The Union requested that I should direct the Employer to reinstate CO Maude to a position that satisfies the subsection 7(4) restriction, such as a position in control. I am not inclined to do that and, assuming the Employer does not return him to a GDO position, I will leave it to the parties to agree on an appropriate position for CO Maude, having regard to the restriction in subsection 7(4).

56For the foregoing reasons, CO Taylor’s grievance dated November 21, 2014, is allowed. The Employer is directed to remove the 20-day suspension from CO Taylor’s record and to fully compensate him for his losses. CO Maude’s grievance dated November 3, 2014, is allowed in part. If the Employer is not prepared to place him in his former GDO position, I direct the Employer to forthwith reinstate CO Maude to employment at the HWDC with his seniority and to place him in a substantially equivalent position that does not involve direct responsibility for inmates and does not provide an opportunity for contact with inmates. Having regard to the seriousness of his misconduct, the reinstatement shall be without compensation. Although I appreciate that CO Maude has been absent from the HWDC for a long time and that he has experienced significant financial losses, I am satisfied that a four week suspension would not be an appropriate penalty for the unjustified and excessive use of force on inmate Woods. The discharge shall be removed from his record and substituted with a suspension from the date of his discharge until the date of his reinstatement. I will remain seized with any issue that may arise from the implementation of these directions.