GSB#2012-4645, 2013-0138, 2013-0806

UNION#2013-0521-0011, 2013-0521-0014, 2013-0521-0036

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bondy)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Vice-Chair

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Centre For Employee Relations Employee Relations Advisor

HEARING

December 2, 2016

Decision

1The Employer and the Union at the Toronto South Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2This Award concerns three grievances filed by the grievor alleging the Employer failed to act in the appropriate manner in relation to an incident involving the grievor and certain inmates on December 9, 2012 at the Toronto Intermittent Centre (TIC).

3Grievance 2013-0521-0011 is dated January 1, 2013; Grievance 2013-0521-0014 is dated February 1, 2013; and Grievance 2013-0521-0036 is dated May 10, 2013. All three grievances allege a breach of Article 2 (Management Rights) and Article 9 (Health and Safety) of the collective agreement. The grievances, as well, allege a failure on the part of the Employer to comply with the requirements of the “Threats Against Correctional Services Employees” and the “Workplace Discrimination and Harassment Prevention Policy”.

4On the morning of December 9, 2012, the grievor entered a unit to investigate a strong smell of smoke emanating from the unit. During the course of searching the unit, several inmates verbally accosted the grievor. According to the grievor, after the inmates were directed to stop using abusive language, Inmate C directly approached the grievor and stated, in an extremely profane manner, that he was going to find out where the grievor lived and go to his residence and rape his wife. Inmate C proceeded to advise the grievor that he was going to “fuck him up”.

5Another inmate, Inmate R, then started to circle the grievor in a manner that the grievor perceived as menacing. The grievor viewed the actions of Inmate R as an attempted act of intimidation.

6Upon the grievor reporting the incident, Sergeant M. Galli and Sergeant F. D’Intino attended the unit. Certain inmates, including Inmate C, were immediately removed from the unit. Sergeant D’Intino decided, however, not to remove Inmate R from the unit, as Inmate R was viewed as being particularly “problematic”; and it was thought that an attempt to move him would require a use of force, which could potentially result in an unnecessary health and safety risk for the assigned staff.

7The grievor expressed to Sergeant D’Intino his displeasure with the decision not to remove Inmate R from the unit. In response, Sergeant D’Intino advised the grievor that if he sought to be reassigned to another unit, that could be arranged. The grievor declined that offer.

8According to the grievor, he advised Sergeant D’Intino, at the time, that he wanted the police called. Sergeant D’Intino disputes that the grievor made such a request for him to contact the police.

9The grievor completed an Occurrence Report later in the afternoon on December 9, 2012. In that Occurrence Report, the grievor referred to a prior incident in July 2012, involving a purported threat on his life by Inmate R. Apparently, in that incident the police were contacted and came to the institution.

10Evelyn Berezowsky– Deputy Operations Manager, Toronto Intermittent Centre, became involved in addressing the grievor’s concerns regarding his interactions with Inmate C and Inmate R on December 9, 2012. Specifically, on December 11, 2012, Ms. Berezowsky contacted the grievor at home and spoke to him about the situation. During that conversation, she counselled the grievor with respect to the availability of the Employee Assistance Program (EAP). The grievor subsequently decided not to utilize the EAP.

11The security concerns of the grievor were referred to the Justice Officials and Investigation Protection Services (JOPIS) branch of the Ontario Provincial Police. The role of JOPIS is to investigate incidents of harassment, intimidation and/or threats towards justice and correctional services employees, and to assist with respect to the safety and security concerns for such individuals. One of the roles performed by the officers assigned to JOPIS, is, on an as-needed basis, to undertake a security assessment of the affected employee’s residence and propose potential safety measures for the employee and his/her family.

12Officer Chris Sewell of JOPIS was assigned to review and provide security assistance to the grievor and his family. After an elongated period, whereby Officer Sewell and the grievor were unsuccessful in their attempts to connect with one another, Officer Sewell and his partner attended the grievor’s residence on April 26, 2013, and conducted a security review with the grievor and his family. After that meeting, Officer Sewell closed his file, pending further developments, as he was of the view that the grievor was satisfied with the security review that was undertaken.

13Throughout the early part of 2013, an ongoing concern of the grievor was that Inmate R was continuing to serve his intermittent sentence at TIC. Specifically, the grievor was frustrated by what he perceived as differential and deferential treatment being afforded to Inmate R. It was the grievor’s view that Inmate R should have been transferred to another institution; or, at a minimum, an alert should have been provided to the staff at TIC when Inmate R was present at that institution.

14It was the position of the Employer that it was well aware of the potential security threat posed by Inmate R; and more specifically, the security concerns pertaining to Inmate R in relation to the grievor. The Employer, for operational and logistic reasons, found it difficult, however, to place Inmate R at another institution with respect to the intermittent sentences he was serving. In particular, it was not possible to place Inmate R in the segregation unit at Maplehurst Correctional Complex (MHCC), at the time, as that unit and other segregated units were at capacity. Ultimately, it was decided that there was no feasible location for Inmate R to complete his intermittent sentences other than at TIC. Arrangements were put in place, however, to ensure that when Inmate R was at TIC, he was not placed in a unit where the grievor was working.

15On September 27, 2013, another incident arose related to the grievor’s relationship with Inmate R. The grievor claims that at approximately 10:15 that morning, as he was walking down a hallway, he heard the then Security Manager, Michael Richard state, “you’re a fucking cry baby when you can’t work with an inmate you have a conflict with”. According to the grievor, Deputy Superintendent John Hasted then commented, “I agree”. The grievor alleges that when he confronted Mr. Richard and Superintendent Hasted and asked if he was supposed to have heard the comments made — Superintendent Hasted responded, “you tell me”.

16The grievor formally reported the incident alleging unprofessional conduct by Mr. Richard and Superintendent Hasted. Jennifer Alphonso, Acting Superintendent at TIC was appointed to investigate the incident. As part of that investigation, Mr. Richard and Superintendent Hasted denied making the statements in question.

17The grievor did not file a grievance regarding the alleged incident of September 27, 2013.

18Undoubtedly, the working environment of a Correctional Officer can, at times, be extremely stressful. Related to this point, a Correctional Officer may, inherently, have to endure instances of verbal abuse from inmates of an institution. While such verbal abuse should not be condoned and appropriate action should be taken to attempt to control such behaviour, not every incident of verbal abuse necessarily constitutes a health and safety risk, in the sense of necessarily being an imminent threat to the safety and wellbeing of the officer.

19At the same time, it is imperative that Correctional Officers are protected, and that appropriate steps are taken in cases of threatening or intimidating behaviour by an inmate towards a Correctional Officer. The importance that the parties have placed on addressing the security concerns of Correctional Officers is attested to by both the June 13, 2008 Threats Against Staff Memorandum jointly issued by the Employer and OPSEU to Superintendents; as well as, the subsequently Employer-issued Threats Against Correctional Services Employees Policy. In more exacting terms, the Employer, in the Threats Against Correctional Services Employees Policy affirms that it has a zero-tolerance policy towards threats and acts of intimidation directed at correctional employees by inmates.

20Turning to the December 9, 2012 incident, it would appear, without dispute, that Inmate C directed an ugly and menacing threat towards the grievor and his spouse. The grievor was also of the view that he had been ostensibly threatened by Inmate R. The grievor’s perception that the actions of Inmate R on that day constituted a threat to his wellbeing would seem to be related, in part, to Inmate R’s reputation; and more particularly, to a prior incident where Inmate R purportedly threatened the grievor.

21On the December 9 date, the Employer was quick to recognize the need to address the threatening and intimidating behaviour by Inmate C and Inmate R; and thus, certain measures were adopted in relation to the events. Specifically, with respect to the grievor’s immediate safety, Inmate C was immediately transferred to another unit, and the grievor was provided the opportunity to be assigned to a different unit if he was still uncomfortable in light of the fact that Inmate R was not transferred. Moreover, it is clear that the Employer investigated the matters raised in the Occurrence Report filed that day by the grievor.

22As to the threats levelled by Inmate C towards the grievor and his spouse, the menacing nature of those threats were cause, no doubt, for considerable unease and anxiety for the grievor and his family. It is recognized that the Employer did initiate certain measures to endeavour to assist the grievor and his family with the stress and security concerns arising from the December 9, 2012 threats. Specifically, the grievor was advised of the availability of services under the Employee Assistance Program. Moreover, the matter was forwarded to JOPIS, and it would appear that the grievor was satisfied with the meeting conducted by Officer Sewell of JOPIS at his residence in April 2013.

23Likewise, while the grievor’s frustration with the fact that Inmate R was not moved to a different institution is, at one level, understandable, there is an insufficient basis to conclude that the Employer necessarily acted unreasonably, with respect to this aspect of the security concerns of the grievor. On this point, it is accepted that the Employer made efforts to endeavour to transfer Inmate R to a different location to serve the remaining time of his intermittent sentence(s), but for operational reasons, such a transfer was not feasible. It would also appear, without dispute, that the Employer endeavoured to limit the possibility of the grievor encountering Inmate R when he was at TIC continuing to serve out his sentence.

24There is, however, one particular aspect of the Employer’s handling of the incident of December 9, 2012, that is found to be wanting. A key aspect of both the Threats Against Staff Memorandum and the Threats Against Correctional Services Employees Policy is that in cases of a serious threat involving a Correctional Officer, the police are to be contacted. It is recognized that there is a dispute whether, in fact, the grievor requested Sergeant D’Intino to call the police as events were unfolding on December 9, 2012. That factual dispute need not necessarily be resolved to find that the Employer failed to comply with the requirements of the Threats Against Staff Memorandum and the Threats Against Correctional Services Employees Policy. Specifically, under both of these directives, seeking police involvement is not predicated on the affected employee(s) requesting that the police be contacted. Rather, in the case of a serious threat or assault, it is the responsibility of the attending Operational Manager/Superintendent to contact the police. Further to that point, the nature of the threat levelled by Inmate C towards the grievor and his family, in my view, unequivocally constituted a serious threat; accordingly, the police should have been contacted for the purpose of providing their assessment of the situation, and to take any action they deemed appropriate in the circumstances, including whether any charges should be laid under the Criminal Code.

25One final aspect of this matter that needs to be addressed relates to the purported comments that were allegedly directed towards the grievor in September 2013 by then Security Manager Richard and Deputy Superintendent Hasted. If, in fact, those comments were made, they would be clearly inappropriate; as the belittling nature of those comments would, in my view, constitute a form of harassment. Since, however, a grievance was not filed with respect to that particular incident, it would not be appropriate, nor am I in a position, to issue a finding as to whether those comments were, in fact, made.

26In conclusion, therefore, it is my determination that by failing to contact the police on December 9, 2012, in response to the serious threats made by Inmate C to the grievor, the Employer failed to comply with the requirements of the Threats Against Staff Memorandum and the Threats Against Correctional Services Employees Policy; and by not doing so, failed to meet its obligations under Article 9 of the collective agreement to make reasonable provision for the health and safety of the grievor.

27As to the appropriate remedy that should be awarded in the circumstances, it is my view that the Employer’s failure to contact the police on December 9, 2012 should more properly be seen as an error in judgment and did not constitute an act of bad faith; nor did the Employer’s lack of action necessarily arise from a cavalier attitude on the part of the Employer towards the security concerns pertaining to the grievor. Accordingly, a damages award is therefore, in my view, not appropriate in the circumstances. Rather a declaration is hereby issued affirming that the Employer failed to comply with the requirements of the Threats Against Staff Memorandum and the Threats Against Correctional Services Employees Policy with respect to the December 9, 2012 incident; and in doing so, failed to meet its obligation under Article 9 of the collective agreement.