GSB# 2016-2771

UNION# 2017-0467-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pratt)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

July 20, 2017; March 26, May 28, 30, June 8, 11 and 25, 2018

Decision

1This Award concerns a grievance filed by Wayne Pratt (the “grievor”) challenging the Employer’s decision to terminate his employment as of March 9, 2017. There are other grievances before me pertaining to the grievor; however, the parties decided to leave those grievances in abeyance, pending the decision regarding the termination grievance.

2The grievor was employed as a Correctional Officer (CO) at Quinte Detention Centre (QDC). He started his employment at the QDC as an Unclassified Correctional Officer in 2000. His continuous service date with the Employer is December 7, 2003.

3The termination of the grievor related to events that transpired on December 24, 2015. In particular, the March 9, 2017 termination letter issued to the grievor outlines two reasons for the termination: (1) a failure “to provide appropriate care for an inmate when you failed to intervene in an altercation in Close Confinement Cell #7”; and (2) a violation of the policy requiring Correctional Officers to only utilize appropriate and acceptable use of force when the grievor allegedly “kicked an offender in the leg area while he was lying motionless on the floor in the segregation, close confinement hallway”.

The Evidence

An Overview of the Events of December 24, 2015

4The key piece of evidence with respect to the events of December 24, 2015, is a video tape of the close confinement hallway of the Segregation Unit at the QDC. While that video is particularly helpful in terms of detailing the relevant events in dispute, there are certain noteworthy limitations as to the recreation of events outlined by the video. The video has no audio, and it does not reveal the events that occurred in the Close Confinement Cell #7 (CC#7) as it only captures the events as they transpired in the hallway outside CC#7.

5On December 24, 2015, Inmate B was housed in Close Confinement Cell #6 with two other cellmates. One of those cellmates threatened to take the other two cellmates, including Inmate B, as hostages. Sergeant Jeff Potter, who was the Operational Manager (OM) in the Segregation Unit that day, decided, as part of dealing with the incident, to transfer Inmate B into the adjacent cell CC#7 where Inmate M was housed.

6The grievor, who was in a “back up” role in the Segregation Unit that day, was assigned the task of transferring Inmate B into CC#7. The first step undertaken by the grievor was to open the cell door of CC#7 and speak to Inmate M. It was the grievor’s evidence that he simply advised Inmate M that he was getting a cellmate and that Inmate M raised no objection. The grievor shortly thereafter opened the cell door of CC#7 to allow Inmate B to enter the cell. Upon closing the cell door, the grievor peered into the cell through the cell door window. The grievor, according to his version of the events, saw that a fight had broken out between Inmate B and Inmate M. The grievor directed CO Josh Flint, to activate the “Code Blue” emergency alarm. Pursuant to protocol, upon the “Code Blue” alarm being triggered, other correctional staff responded quickly and arrived in the hallway outside CC#7. OM Potter appeared on the scene within approximately 12 seconds of the cell door CC#7 being closed. Other COs appeared shortly after OM Potter’s arrival; eventually, there were five COs at the scene including the grievor, CO Flint, CO Greg Brunton, CO Scott Dopking, and CO Matt Delorme.

7COs are issued MK-3 Oleoresin Capsicum (OC) foam (“pepper spray”). OMs are issued pepper spray in a spray version; which is generally more effective and has a wider range than the foam version.

8Initially the grievor pulled his pepper spray out of its holster, in anticipation of entering the cell; however, upon observing OM Potter had drawn his pepper spray, the grievor placed his pepper spray back in its holster.

9While it is not clear when the directive was given, at some point, OM Potter directed that the cell door of CC#7 be opened. Upon CO Flint opening the cell door, Inmate B, who was bent over at the door, fell out of the cell onto the hallway floor. In total, 37 seconds had elapsed from the time the grievor had closed the door to CC#7 until the cell door was opened with Inmate B falling out.

10While Inmate B remained lying on the hallway floor, he was assessed by members of the nursing staff. After that assessment was completed, OM Potter advised Inmate B that he was going to be transferred into another cell with another inmate. Inmate B remained on the ground apparently yelling that he didn’t want to go into a cell with another inmate; he wanted to be housed by himself in a cell.

11OM Potter gave direction to the COs present to get Inmate B up and out of the Segregation Unit. The grievor is observed on the video making two hand gestures consistent with asking Inmate B to get up. After no response, the grievor “pushed/kicked” (the proper characterization of this action will be canvassed later in the Award) the right leg of Inmate B causing it to hit Inmate B’s left leg. Almost immediately after the contact, Inmate B sprang up from the ground.

12As Inmate B was being escorted down the hallway, an altercation took place between him and a number of the COs present, including the grievor, which resulted in Inmate B being forcibly taken to the ground. As the COs were trying to gain control over Inmate B, CO Brunton struck Inmate B with a knee strike and two strikes with his hand. Ultimately, Inmate B was placed in handcuffs and led away to the Admitting and Discharge unit.

The Investigation of the Events of December 24, 2015

13Pursuant to Section 4.5 of the Employer’s Report Writing Policy, the grievor, as well as the other participants involved the events of December 24, 2015, completed a Use of Force Occurrence Report on that day. In his report, the grievor indicated as soon as he closed the door of CC#7, a fight broke out between Inmate B and Inmate M. The grievor in his Occurrence Report made no mention of his foot coming into contact with the leg of Inmate B, while the inmate was lying on the ground in the hallway. Further to this point, initially, the focus of the Employer’s investigation was in relation to the nature of the response to the altercation between Inmate B and Inmate M in CC#7; and the use of force associated with taking Inmate B to the ground as he was being escorted down the hallway.

14On December 24, 2015, as part of the required investigation process with respect to an incident involving use of force on an inmate, Sergeant Potter, initiated a Use of Force Local Investigation Report (LIR). The LIR was then referred to an Investigating Manager, who has the responsibility to compile all the relevant information pertaining to the incident and to provide a preliminary analysis of the events. In this case, the Investigating Manager was Sergeant Geoff Ridder whose recommendation, upon reviewing the video and the reports submitted, was that a further investigation of the use of force was warranted. There was no mention in Sergeant Ridder’s analysis with respect to the grievor pushing/kicking the leg of Inmate B. Specifically, in concluding that the Employer’s Use of Force policies and procedures were not followed, Sergeant Ridder’s analysis only refers to CO Brunton’s knee strike and hand strikes of Inmate B as he was taken to the ground exiting the hallway.

15In accordance with protocol, the next step in the completion of the LIR was for a Risk Management Team to review the incident. The assigned Risk Management Team (RMT) with respect to this incident consisted of the Investigating Manager, Sergeant Ridder, Security Manager/Designate Lisa Baker, DSA, and Superintendent/Designate, Ted Sheil, DSO. In the segment of the LIR where “Concerns” are to be outlined, all three members of the RMT make the following comment: “CO Pratt pushes offender’s foot with his foot in an attempt to gain compliance from offender to move off of the floor and out of the area”. Included amongst the recommendations of the RMT is that an Allegation Meeting takes place with the grievor with respect to his pushing of Inmate B’s foot.

16The next step in the process of completing the LIR, was a review of the events by the Superintendent of the QDC, Larry Shorts. In answering the question as to whether the amount of force utilized was reasonable and not excessive at the Analysis and Findings section of Part D of the LIR, Superintendent Shorts answered no; but in doing so, exclusively referred to the knee strike and hand strikes delivered by CO Brunton on Inmate B. Under a separate heading pertaining to whether other policies and procedures were followed, Superintendent Shorts documents “CO Pratt pushes inmate’s foot/leg” as well as referring to a “Delay in response time of officers to remove offender from the cell in which he was being assaulted”.

17Part D of the LIR also outlines the Action Plan to be undertaken in light of the findings and analysis. The outlined action in this case was that Sergeant Potter and CO Brunton be suspended with pay pending the outcome of the review by Corrections Services Oversight & Investigations. (CSOI). The grievor was not suspended and continued to work without restriction while the CSOI review was being undertaken.

18James Micucci, Inspector of the CSOI was assigned to investigate “the circumstances surrounding staff response to an inmate assault and the subsequent force used upon” Inmate B. At the conclusion of his investigation, Inspector Micucci made a finding of a use of excessive force only with respect to CO Brunton’s knee strike to Inmate B. As to the grievor the finding of wrongdoing was limited to “a failure to provide appropriate care” for Inmate B as a result of the grievor failing “to intervene in the altercation in cell CC#7”.

19Superintendent Shorts received the CSOI report of Inspector Micucci sometime in January 2017 and reviewed its recommendation and analysis as part of the determination as to the appropriate action to be taken. The grievor received an initial Allegation Letter dated January 18, 2017 which required him to attend a meeting to respond to the alleged allegation, which at that time, was limited to the failure to intervene to protect Inmate B. A revised Allegation Letter was shortly thereafter forwarded to the grievor which included the second allegation that the grievor “kicked” Inmate B in the leg.

20An Allegation Meeting with the grievor took place with respect to both allegations on February 2, 2017. It was ultimately the decision of Superintendent Shorts to terminate the grievor’s employment.

Evidence of the Witnesses

21The Employer called Greg Ireland, Provincial Coordinator for Use of Force Programs at the Ontario Correctional Services College as an expert regarding the use of force by a Correctional Officer. Mr. Ireland has testified extensively as an expert witness with respect to the appropriate Use of Force by COs, including at Coroner Inquests, criminal and civil proceedings including GSB hearings.

22Mr. Ireland testified that pursuant to Section 7(1) of Reg. 788 of the Ministry of Correctional Services Act (MCSA), a correctional employee is only allowed to use force in order to: (a) enforce discipline and maintain order within the institution; (b) defend the employee or another employee or inmate from assault; (c) control a rebellious or disturbed inmate; or (d) conduct a search. Mr. Ireland further noted that the amount of permissible force utilized by a CO is also regulated by the MCSA. Specifically, Section 7(2) of the MCSA, stipulates ‘the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case.

23With respect to assessing the relevant circumstances and determining the appropriate response by correctional staff to a scenario involving an altercation between inmates, Mr. Ireland suggested some of the relevant factors included the following:

• The number of correctional employees in the immediate area versus the number of inmates;

• The security of the area, e.g. is the correctional employee in an enclosed space or an open area with multiple escape routes?

• Available options, in the event that the inmate becomes assaultive;

• Immediate threat(s) to the correctional employee’s safety or the safety of colleagues or the inmate;

• UOF options available in the circumstances;

• The officer/inmate’s profile (e.g. size, age, gender, previous history, etc.)

24As to the allegation pertaining to the failure of the grievor to intervene in the altercation between Inmate B and Inmate M, Mr. Ireland submitted that a CO has an obligation to protect one inmate from another. He further indicated that the urgency to respond becomes much more acute if, in fact, the scenario involves a one-sided assault by one inmate on another, as opposed to a fight between willing combatants.

25It was Mr. Ireland’s view that the grievor could have taken a number of steps to try and stop the fight/assault, short of actually entering the cell. In particular, it was asserted that COs are trained that verbal interaction/intervention is a tool to utilize to attempt to stop an altercation. In this regard, the grievor could have opened the hatch, or opened the cell door and ordered the inmates to stop. He could also have banged on the cell door. It was suggested that such verbal interaction often distracts or causes the participants to lose focus; such that, they may halt their activities.

26Another option which was open to the grievor as a method to intervene with a view to halting altercation, would be to use his “pepper spray” either through the hatch or by opening the cell door and spraying. In terms of “pepper spray”, it was noted that the “foam” version which COs carry has a limited range of approximately 10 feet. It was Mr. Ireland’s view that even if the grievor could not have directly sprayed the inmates, the foam is an inflammatory which adversely affects the senses.

27Mr. Ireland, in cross-examination, acknowledged that it may take a CO a bit of time to assess all the relevant variables and options when encountering a scenario of inmates fighting each other in a cell. He also agreed that part of the assessment would be for the CO to consider the potential harm to himself and other employees in considering whether to directly attempt to break up a fight between inmates. In this regard, it was acknowledged that before entering the cell, correctional staff consider whether the number of staff on hand is sufficient; agreeing the number of staff should ideally, at the least, outnumber the inmates involved in the incident.

28In terms of the grievor’s actions, Mr. Ireland conceded that the grievor followed proper protocol in ensuring that the “Code Blue” button was activated upon him observing that there was altercation involving the two inmates. It was also acknowledged that upon OM Potter appearing on the scene, he would be considered to be in charge and, generally, correctional staff would follow the direction of the OM on the scene. In re-examination, however, Mr. Ireland suggested the presence of OM Potter did not necessarily absolve the grievor’s obligation to act.

29With respect to the allegation of the grievor kicking Inmate B, Mr. Ireland testified that the act of the grievor was a use of force since it was physical effort on an inmate. In terms of whether it was an excessive use of force, it was suggested that since the use of force was not necessary, it was, therefore, by definition, excessive. Mr. Ireland was of the view that at that particular juncture, the use of force was not necessary as there was no apparent urgency associated with moving the inmate lying on the ground as he was not a threat, so there was more time to see if he would respond to verbal direction. It was also suggested that the grievor and other COs could have helped Inmate B get up by grabbing his arm and guiding him up to his feet.

30In cross-examination, Mr. Ireland acknowledged that the grievor and the other correctional staff were obligated to act in furtherance of the directive from OM Potter to get Inmate B out of the hallway. He also agreed that it would appear on the video that Inmate B was non-compliant with respect to the verbal direction from the grievor to get up. Further to this point, he accepted that it was the responsibility of a CO to ensure that order was maintained, and that, a non-compliant inmate complies with a direction given.

31In terms of the characterization of the amount of force utilized by the grievor, Mr. Ireland acknowledged that the grievor’s contact with Inmate B’s leg constituted a nominal/minimal application of force as opposed to “kicking him”. He also agreed that the action of the grievor was less intrusive than involving other staff to physically try to get Inmate B up; and that, there was a possibility of some risk associated with the grievor bending down to put his hand on the inmate’s shoulder/arm in an effort to get him up.

32The other individual who gave evidence, on behalf of the Employer, was Superintendent Shorts, who testified that fights between inmates at the institution were fairly common; and that, COs were expressly trained to intervene in such fights as it was the expectation that they do so. It was his view that this particular scenario of the altercation between Inmate B and Inmate M ranked fairly low in terms of dangerous situations that correctional staff may encounter.

33For Superintendent Shorts, the grievor and CO Flint should have acted immediately to enter the cell rather than waiting for other staff. At a minimum, they should have opened the cell door, which, in his view, is often sufficient to cause the participants in an altercation to stop. If opening the door did not stop the fight, then the COs could have used their pepper spray. From Superintendent Shorts’ perspective, there was no justification for the correctional staff to wait to intervene as there was no need for further assessment.

34In cross-examination, Superintendent Shorts agreed he had no direct knowledge about what was happening in the cell between Inmate B and Inmate M. He also accepted that a CO, before directly physically intervening in an altercation between inmates, should access all the relevant circumstances; and that one relevant consideration is the potential harm to himself. He also did not dispute that COs have to act in “real time”, as they do not have the benefit of hindsight; and that, a CO’s judgement is based on his/her experience and what he/she observes and has direct knowledge of.

35As to the allegation pertaining to the grievor kicking Inmate B, Superintendent Shorts reiterated the viewpoint expressed by Mr. Ireland that the grievor’s kicking/pushing Inmate B’s leg while he laid on the ground in the hallway was not necessary or required and was, therefore, excessive. It was suggested that such an act was not a technique taught in training to be utilized by a CO to obtain compliance and that its usage required a reasonable explanation, which was not forthcoming from the grievor.

36Superintendent Shorts acknowledged, in cross-examination, that throughout the LIR review, the grievor’s act was described as a “push”; and that, the first time it was formally referred to as “the grievor kicking him” was in the revised Allegation Letter the grievor received. He also acknowledged that throughout the various stages of review associated with the LIR, there was no identification or conclusion suggesting that the grievor’s actions in touching the leg of Inmate B constituted an excessive use of force.

37Superintendent Shorts also conceded that he did not consider favourable reviews of the grievor’s work performance when deciding to terminate the grievor’s employment. In particular, he did not give any weight to a favourable Performance Development and Learning Plan regarding the grievor’s work performance that had been completed by Operational Manager Diane Bartlett on January 19, 2017, just shortly before the grievor’s termination.

38The grievor was the only witness who gave evidence on behalf of the Union. The grievor testified that when he opened CC#7 to advise Inmate M that he was getting a cell mate, he did not say anything further, and that, Inmate M’s reaction was to the effect of “that’s cool”. At that juncture, he did not see any threat associated with opening the cell door and speaking to Inmate M.

39The grievor continued his narrative regarding the events of December 24, 2015, by noting that after Inmate B entered CC#7, Inmate B and Inmate M started talking as the cell door was closing, and that, the conversation began to escalate. After securing the door, the grievor testified that he peered into the cell door window and saw that the inmates had grabbed onto each other and were engaged in a fight. He claimed that he turned and saw that CO Flint was close to the Code Blue button, and he advised him there was a fight and that CO Flint should hit the Code Blue button. At the same time, he yelled out for OM Potter.

40As to why he did not intervene sooner, the grievor testified that he wanted to make sure there was sufficient staff present, such that nobody would be needlessly injured if they were to enter the cell. He also asserted that in a loud voice he advised the inmates to stop but acknowledged that there was no mention of him speaking out to the inmates in the Incident Report he filed on December 24, 2015. It was the grievor’s evidence that OM Potter was “in charge” when he arrived on the scene, and that, he was awaiting direction from him. He also noted that he had arguably taken out his pepper spray but once he noticed that Sergeant Potter had pulled out his pepper spray, he put his back in its holster.

41In cross-examination, the grievor acknowledged that he could have advised Inmate M that he was getting a cellmate through the hatch in the cell door, and he does not know why he decided to open the door of CC#7. Related to this point, while he acknowledged that he was aware that Inmate B was a “sex offender”, who had been convicted of a particularly notorious sexual offence, he did not advise Inmate M as to the identity of his new cell mate.

42The grievor further acknowledged that prior to locking the door of CC#7, he had some concern regarding the interaction between the inmates. He also acknowledged that he did not open the door or hatch to vocally tell the inmates to stop. Nor did he bang on the cell door to send a message to the inmates.

43With respect to the allegation of kicking the leg of Inmate B, the grievor testified that he simply pushed the inmate’s leg to gain compliance after Inmate B had ignored his verbal direction to get up. It was noted that after having his leg pushed, Inmate B immediately arose. Further to this point, the grievor testified that Inmate B was angry and yelling profanities at OM Potter, as he did not want to be put into a cell with another inmate as OM Potter had directed. The grievor was of the view his actions were consistent with the direction given by OM Potter to get Inmate B out of the hallway.

44The grievor asserted that he did not think it was necessarily safe to bend over Inmate B and try to ease him up by putting his hand on his arm/shoulder. In cross-examination, the grievor admitted that one of the nurses had bent over Inmate B as part of her assessment as to the state of his health. The grievor also acknowledged in the February 2, 2017 Allegation Meeting, that he made no mention of seeking to get the attention of Inmate B, and that he had claimed that he “was positioning myself to help him up if required or pick him up if necessary”.

Submissions of the Parties

45With respect to the failure to intervene allegation, the Employer submitted that 37 seconds transpired between Inmate B entering CC#7 and the cell door finally being re-opened with Inmate B falling out onto the floor. It was asserted that while 37 seconds on its own may not be viewed as an elongated period of time, it is, in fact, an extremely long period of time if you are being assaulted. At the end of the day, notwithstanding the fact a CO has an obligation to protect an inmate from another inmate; and that, the grievor was expressly trained to deal with such scenarios, he did nothing to stop a beating that was playing out right in front of him.

46Mr. Rabinovitch, on behalf of the Employer, submitted that upon reviewing the evidence as a whole, the only reasonable conclusion to be drawn was that the grievor was well aware that Inmate M was intending to assault Inmate B, and the grievor allowed that assault to play itself out. It was noted that the grievor acknowledged that he was aware of the heinous crimes committed by Inmate B, and on the video, it appears that Inmate M was ready at the doorstop of CC#7 waiting for the cell door to open to pounce on Inmate B.

47Mr. Rabinovitch further suggested it was the expectation for COs to physically intervene to break up a fight; and that, it was indisputably a regular part of the job of a CO to intervene in fights between inmates. Moreover, while personal safety is a legitimate concern, a CO cannot solely focus on the possibility of harm to himself or his colleagues, at the expense of failing to fulfill the obligation of providing for the care of inmates.

48It was submitted that the expert evidence of Mr. Ireland affirmed that even if the grievor had legitimately assessed that entering CC#7 represented too much of a safety risk; he could have, and should have, taken a number of steps short of entering the cell to attempt to stop what was happening. Those options included opening the cell door, banging on the cell door, and/or utilizing his pepper spray foam either through the hatch or after opening the door. Rather than taking any such actions, the grievor, as well as the other correctional staff on the scene did nothing.

49For the Employer, the fact that OM Potter may have failed in his obligation to appropriately direct staff as the events were unfolding on December 24, 2015, did not absolve the grievor for his failure to act in a more precipitous manner. There is no need to await the direction of an OM for a CO to take steps to end an assault that is unfolding before the CO’s eyes.

50As to the allegation of the grievor kicking Inmate B, it was asserted the evidence establishes that the use of force imposed by the grievor was not necessary in the circumstances; therefore, by definition, it was inappropriate and excessive. In this regard, Mr. Ireland’s evidence confirmed that Section 7(1) of the Regulation 778 of the MCSA specifies the use of force by a correctional employee is limited to a narrow set of purposes; and that, Section 7(2) of the Regulation further prescribes that the amount of force used against an inmate shall be reasonable and not excessive, having regard to the nature of the threat posed by the inmate. Reference was also made to the Ontario Correctional Services Code of Conduct and Professionalism wherein at Section 2(d) it is expressly stated that it is an obligation of a CO “to ensure only appropriate and acceptable levels of physical contact” with inmates takes place. Mr. Rabinovitch asserted, in the case at hand, that the grievor’s claim that his kicking of Inmate B was in furtherance of maintaining order was not credible, as there was no need for force to be utilized to maintain order in the circumstances. Inmate B was on the floor of a hallway not representing a threat to anyone.

51Further to above point, Mr. Rabinovitch asserted the explanations offered by the grievor as to why it was necessary to kick Inmate B’s leg were not only not credible but were mired with inconsistency. In particular at his Allegation Meeting, he suggested that he was better positioning himself to help him up if required or pick him up if necessary.

52In terms of the decision to terminate the grievor’s employment, it was asserted that the jurisprudence affirms that it constitutes serious misconduct for a CO to fail to intervene to protect an inmate from an assault. Mr. Rabinovitch further submitted that it was also well-established in the jurisprudence of the GSB that termination is the appropriate penalty with respect to a finding of excessive use of force by a CO. Furthermore, substitution of a penalty less than termination would be particularly not appropriate in the case at hand; given the grievor’s continual failure to accept responsibility for his misconduct and acknowledge any wrongdoing on his part. The grievor’s misconduct combined with the absence of any ownership of wrongdoing suggests the Employer cannot trust the grievor not to engage in similar misconduct.

53In the alternative, the Employer asserted that if it is determined that reinstatement is appropriate, that given his excessive use of force that Section 7(4) of the Crown Employees Collective Bargaining Act (CECBA) expressly prohibits his reinstatement to the CO position.

54In support of its submissions, the Employer relied on the following authorities: Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) 1987 CanLII 8881 (BC LA), 27 LAC (3d) 311 (Hope); OPSEU (Wild) and The Ministry of Community Safety and Correctional Services, GSB # 2011-2731, 2011-2808 (March 16, 2016) (Harris); OPSEU (Lavallee) and Ministry of Community Safety and Correctional Services, GSB #2007-2778 et al. (September 27, 2011) (Watters); OPSEU (Horan) and Ministry of Public Safety and Security, GSB #0670/01 (October 23, 2002) (Herlich); OPSEU (Collin) and Ministry of Community Safety and Correctional Services, GSB #2001-1578 (March 30, 2007) (Harris); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, GSB #2003-1520 (May 16, 2008) (Abramsky); OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services, GSB #2003-3597 (August 11, 2008) (Petryshen); Dowling v Hamilton-Wentworth Detention Centre, 2012; Dowling v. Hamilton-Wentworth Detention Centre, 2014 (Reconsideration); OPSEU (Aitken et al) and The Ministry of Community Safety and Correctional Services, GSB #2012-2612 (July 18, 2017) (Petryshen); OPSEU (Maude) and the Ministry of Community Safety and Correctional Services, GSB #2014-3306, 2014-3748 (March 14, 2016) (Petryshen); OPSEU (Conry) and The Ministry of Community Safety and Correctional Services, GSB #2014-2618 (August 12, 2016) (Williamson); OPSEU (Goden) and the Ministry of Community Safety and Correctional Services, GSB #2016-0044 (June 27, 2018) (Watters ) F.H. V. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, 2008 SSC 53; Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C).

55For the Union, the analysis of whether the Employer’s decision to terminate the grievor should be upheld should be restricted to the specific reasons for termination set out in the March 7, 2015 letter issued to the grievor. Specifically, the Employer was required to establish the specific allegations of misconduct as set out in the termination letter which were identified as: (1) a failure of the grievor to intervene in the altercation; and (2) that the grievor kicked Inmate B while he lay motionless on the hallway floor.

56Mr. Holmes, on behalf of the Union, asserted that with respect to both allegations, it was plainly evident on the submitted evidence that the Employer failed to meet its onus. With respect to the failure to intervene allegation, it was indisputably a fact that the correctional staff, including the grievor, did, in fact, intervene in the altercation that took place between Inmate B and Inmate M. In particular, after assessing the scenario, a decision was made to intervene by opening the cell door which resulted in Inmate B exiting the cell. It was submitted that the Employer’s case presented throughout the hearing was an attempt to shift the nature of the allegation by suggesting that there was an unnecessary and inappropriate delay on the part of the grievor and the other assembled members of the correctional staff to intervene to put an end to the altercation. There was a clear distinction, it was submitted, between an allegation of a failure to intervene and an allegation of a failure to intervene in a timely fashion. With respect to this point, reference was made to a disciplinary sanction issued to CO Flint on January 5, 2017, just two months before the grievor’s termination, wherein CO Flint was expressly disciplined for “failing to take timely action”, with respect to waiting for 67 seconds before intervening in an inmate on inmate assault.

57As to the allegation of the grievor “kicking” Inmate B in the leg area, it was submitted that the video evidence definitively establishes that the grievor did not “kick” Inmate B’s leg; rather, at its highest, the evidence suggests he “pushed” or “nudged” the grievor’s leg to gain compliance. Mr. Holmes asserted that the clearest proof that the grievor did not, in fact, “kick” the leg of Inmate B was attested to by the characterization of the grievor’s act throughout the Employer’s own investigation process. On this point, it was claimed that the first and only time the actions of the grievor were characterized in terms of “kicking” Inmate B was in the second Allegation Letter sent to the grievor. Up until that point in time, the representatives of the Employer who had reviewed the incident, including Superintendent Shorts, had consistently referred to the grievor’s actions in terms of pushing the leg of Inmate B.

58At a broader level, Mr. Holmes submitted that it was imperative that the decision in this case be solely based on the submitted evidence. In this regard, it was asserted that a significant part of the Employer’s case was based upon speculation and supposition. That is, underlying the Employer’s decision making was the erroneous supposition that the grievor was well aware that Inmate M was going to assault Inmate B; and that, he and the other correctional staff complicity delayed intervening to put a stop to the assault.

59With respect to assessing the grievor’s conduct, Mr. Holmes asserted that the only submitted evidence pertaining to the events of December 24, 2015, was the video (which did not record what went on in CC#7) and the evidence of the grievor. Further to this point, given the nature of the allegations, it was submitted that it is a well-established jurisprudence of the GSB that the Employer has to satisfy the onus of establishing the allegations with “clear and cogent” evidence. In furtherance of this point, the Union referenced two cases relied upon by the Employer: OPSEU (Gillis et al.) OPSEU (Beltrano et al.), supra.

60Delving deeper into the excessive use of force allegation, the Union submitted that throughout the extensive review of the incident, not only was the grievor’s act characterized as a push rather than a kick; arguably, of more significance, it was not identified as an excessive use of force. Specifically, in the first Allegation Letter forwarded to the grievor in January 2017, there was no allegation pertaining to an excessive use of force. Moreover, Inspector Micucci in the CSOI Investigation Report restricted his findings with respect to the grievor to— “a failure to intervene in the altercation in CC#7”; the exact same finding that was levelled against CO Dopking and CO Flint.

61For the Union, the grievor’s pushing of the leg of Inmate B was not improper or inappropriate given the relevant circumstances. Reference was made to the fact that Mr. Ireland in cross-examination affirmed: (1) that Inmate B was non-compliant with respect to OM Potter’s direction to get Inmate B up; (2) that the correctional staff were obligated to carry out OM Potter’s direction; (3) that the grievor initially relied upon verbal direction by motioning and directing that Inmate B get up; (4) that only after the verbal direction had failed, did the grievor physically touch Inmate B; (5) that the action of the grievor was “nominal/minimal” in nature and; (6) that the pushing of Inmate B’s leg was less risk averse for the grievor and other correctional staff , then attempting to raise Inmate B to his feet by grabbing on to his arm/shoulder.

62In terms of the restriction put on an arbitrator’s reinstatement authority, pursuant to Section 7(4) of the CECBA, with respect to a finding of an excessive use of force, Mr. Holmes submitted that given the impact of that provision upon the career of a CO, that a “common sense” approach should be adopted with respect to the application of that provision—that it was not intended to render an employee’s career as a CO finished on account of such a nominal/minimal touching of an inmate.

63As to the failure to intervene allegation, it was claimed that a review of the evidence as a whole suggests that the grievor’s actions were, in fact, appropriate given the relevant circumstances. The grievor directed that the Code Blue button be pushed immediately upon noticing that an altercation had broken out. In terms of his decision to not immediately enter the cell, he simply wanted to ensure that with respect to his safety and the safety of others, there was sufficient staff present before he acted. In this regard, reference was made to the Employer’s Statement of Ethical Principles wherein at Statement 8, it is expressly stated that a “healthy and safe workplace is a legislated requirement for all Ministry worksites”; and that, all employees “have a responsibility to ensure and maintain a safe and healthy work environment for offenders and coworkers”. Reference was also made to the Code of Conduct and Professionalism, which applies to correctional employees, and stipulates at Section 1(2)(c) that an employee “will not endanger the wellbeing of oneself and/or others”.

64Mr. Holmes further suggested that a fair reading of the evidence of Mr. Ireland confirms that the grievor’s actions were reasonable in the circumstances. Further to this point, it was noted that Mr. Ireland suggested that before physically intervening in an altercation that, ideally, the number of COs should exceed the number of inmates involved in the altercation. With respect to this point, it was noted the only staff on the scene, initially, besides the grievor was CO Flint and OM Potter, and Mr. Ireland agreed that the OM’s role is to observe and direct; and that, it is not the expectation that he/she would actively become physically involved in attempting to break up an altercation. Mr. Ireland also affirmed, according to the Union, that it would be the expectation of a CO that the OM would take control of the situation and provide the appropriate directives.

65In terms of potentially utilizing his pepper spray, it was noted that the grievor had, in fact, unholstered his pepper spray in anticipation of potentially employing it but decided to reholster it when he observed OM Potter had pulled out his pepper spray.

66Overall, the Union asserted that a fair review of the submitted evidence suggests that there was not any dereliction of duty or responsibility by the grievor— that he assessed the appropriate response in light of the events as they were unfolding and was prepared to and, in fact, did intervene with respect to the altercation.

67In the alternative, the Union asserted that if it was determined that the Employer had cause to take disciplinary action against the grievor that in all the circumstances, it was appropriate to substitute a lesser penalty than termination. Mr. Holmes submitted the grievor was a seventeen-year employee with no disciplinary infractions on his record at the time of the events that led to his termination. Moreover, he had received favourable performance approvals and commendations that Superintendent Shorts decided to ignore when deciding to impose the penalty of termination. Consideration also should be given to the significant adverse impact that the termination has had on the grievor; he is a parent with sole custody of his son and has been unable to find gainful alternative employment.

68In support of its submissions, the Union relied on the following authorities: Delta Catalytic Industrial Services and International Brotherhood of Electrical Workers, Local 105 2002 CanLII 79050 (ON LA), 112 L.A.C. (4th) 72 (Surdykowski); The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) v OPSEU (Gour) GSB #2014-4668 (Misra); The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB #2014-3306, 2014-3748 (Petryshen); The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) v OPSEU (Conry) GSB#2014-2618 (Williamson); The Crown in Right of Ontario (Ministry of Children and Youth Services v OPSEU (Gallina) (2011) 105 C.L.A.S. 115 (Fisher); Brown and Beatty, Canadian Labour Arbitration para 7.3621.

Decision

69At the outset of the analysis, it is appropriate to set out a few general observations. First, I do not accept the Union’s assertion that the literal wording of the allegations as set out in the March 9, 2017 termination letter should strictly define the relevant allegations of misconduct that have been levelled against the grievor. Yes, the wording of the first allegation of misconduct set out in the termination letter could have been written with more exacting language by specifically referring to the actions of the grievor as a failure to intervene in a timely manner. That being said, the distinction drawn by the Union is, in my view, overly semantical in nature. In this regard, there has been no attempt by the Employer to expand or alter the grounds associated with that particular allegation. A review of the documentary evidence clearly establishes that the Employer was investigating the circumstances associated with the appropriateness of the response of the grievor and the other relevant correctional staff to the altercation between Inmate B and Inmate M in CC#7. More specifically, the evidence establishes that from the outset, the grievor and the Union were quite aware of the Employer’s concerns regarding the “delay” in not taking steps to attempt to stop the altercation. For example, the nature of the questioning of the grievor at the Allegation Meeting on February 2, 2017 directly dealt with the rationale/justification of the grievor for not acting sooner to stop the altercation.

70Another general observation point is the Employer’s position that there is not necessarily a higher or more stringent onus to be met owing to the nature of the allegations succinctly captures the essence of the existing jurisprudence. The Supreme Court of Canada in F.H. v McDougall [2008] 3 S.C.R. 1, after extensively reviewing the relevant jurisprudence, rejected the supposition that a more rigorous standard of proof applies when the alleged misconduct relates to a matter of a serious nature. For the Court, there is not a sliding scale of onus as it relates to the nature of certain allegations; the same standard applies in all civil cases. The applicable standard is that the “evidence must always be sufficiently clear, convincing, and cogent to satisfy the balance of probabilities”.

71Turning to the failure to intervene allegation, it cannot be concluded, based on the submitted evidence that the grievor acted in a premeditated or complicit fashion as alleged by the Employer; as in, knowingly allowing Inmate B to be assaulted by Inmate M. It is recognized the grievor was aware that Inmate B had been convicted of a particularly notorious sexual offence; and moreover, the video appears to suggest that Inmate M was waiting at the doorstep of CC#7. Those points notwithstanding, there is clearly an insufficient factual foundation to conclude the grievor and the other correctional staff on the scene actively conspired in a premeditated manner to arrange or allow for the assault of Inmate B. It is a trite but important point to note that a finding of misconduct must be based exclusively on the submitted evidence and not be based on unproven suppositions or speculation.

72The fact that the grievor’s actions may not have been premeditated, however, does not excuse his failure to intervene in a more urgent manner with respect to the altercation that unfolded in CC#7. The grievor ostensibly posits two reasons for his failure to act: (1) that he was waiting for sufficient staff to arrive on the scene before entering the cell; and (2) that he was awaiting direction from OM Potter once he arrived on the scene. While both of these factors are potentially mitigating considerations in terms of assessing the grievor’s actions, they do not absolve the grievor’s responsibility to act and/or explain his failure to act in a more precipitous manner.

73With respect to the grievor’s failure to enter CC#7 to physically intervene in the altercation, it is appropriate for the CO, in such circumstances, as was confirmed by the evidence of Mr. Ireland, to consider whether there is sufficient staff present such that the CO is not putting his/her own safety or other correctional staff at risk by intervening. At the same time, inherent to the CO position, is the expectation that a CO may have to inure him or herself to certain physical risks to ensure that the care, custody and control of the institution and the inmates are maintained. In furtherance of this expectation, COs receive training to intervene with respect to such altercations. Moreover, with respect to the grievor’s decision not to intervene, consideration has to be given to the fact he had just spoken with Inmate M without incident and, generally, did not view him as a potentially dangerous inmate.

74In fairness to the grievor and the other COs, it is noted that OM Potter arrived on the scene within 13 seconds of the cell door of CC#7 closing, and it is evident that OM Potter was in charge of directing the correctional staff. Accordingly, the view that the decision not to intervene pending an express directive of OM Potter has some merit, and as previously outlined, is a mitigating consideration in assessing the nature of the grievor’s conduct. It, however, does not entirely absolve the grievor’s responsibility to act. On this point, reference is made to the decision in Gillis et al., wherein the finding that an OM had encouraged/condoned the improper use of force did not excuse the misconduct on the part of the relevant COs. Specifically, Vice Chair Abramsky noted:

Even though the Union is correct that OM Singh’s conduct encouraged the grievors’ actions, I conclude that Singh’s conduct does not absolve the grievors in this case. That is because the grievors, as Correctional Officers, knew that their actions in regard to the inmate were wrong. Everyone present knew it. They had been trained on the use of force and their obligations as Correctional Officers. They had independent obligations, under law, to protect the inmate. There is no uncertainty about the Employer’s expectations here or what was proper conduct. What was expected and required was clear.

75Even if the failure of the grievor to physically enter the cell to directly intervene in the altercation could be excused on the basis of it being a judgment call, the complete failure on his part to take any other steps to attempt to put an end to the altercation, represents an abdication of responsibility. By the grievor’s own admission, as soon as the door was being closed, the voices of the inmates were raised and heightened. Yet, no explanation was provided as to why the grievor did not, at that juncture, simply stop closing the door and directly address the inmates as to whether there was a problem. Moreover, the grievor immediately became aware of the altercation as soon as he peered into the window of the cell upon closing the cell door; yet, he took no action to stop the altercation other than arranging for the Code Blue alarm to be triggered. Specifically, there was no attempt by the grievor, at that point, to open the door and direct the inmates to stop what they were doing. Moreover, there was no banging on the door to send a message to the inmates that they should stop. There was also no attempt to utilize his pepper spray, either by opening the door or through the hatch.

76The distinct impression left upon reviewing the video is that the grievor was not overly concerned about the physical altercation that he knew was playing out behind the cell door. A somewhat cavalier attitude is displayed, as there is no evidence of a sense of urgency on the part of the grievor to put an end to the altercation. The grievor’s failure to take additional steps to immediately put an end to the altercation cannot be justified and, in my view, a significant disciplinary response is warranted.

77Turning to the allegation that the grievor used excessive force against Inmate B, the basic facts associated with that allegation are not fundamentally in dispute. The video shows Inmate B falling out of CC#7 and then laying on the floor of the hallway in the back of the Segregation Unit. The hallway is fairly narrow and initially Inmate B is lying on his side with a number of correctional staff hovering around him and with the greivor directly beside him. Nursing staff arrive to assess Inmate B’s state of health. The grievor reaches down and touches the grievor’s shoulder and rolls the grievor onto his back, so that he could be assessed by the nursing staff (the video only captured the lower half of Inmate B’s body, so it is not entirely clear as to whether the grievor touched Inmate B on his shoulder, as opposed to his arm, to roll him onto his back). Upon the nursing staff completing their assessment, OM Potter stands over Inmate B and talks directly to him. There appears to be an animated exchange between OM Potter and Inmate B, which is consistent with the grievor’s testimony that Inmate B reacted negatively to OM Potter advising him that he was going to be housed in a cell with another inmate. OM Potter then leaves and the grievor is seen twice gesturing with his hands for Inmate B to get up. After Inmate B fails to get up and subsequent to the grievor’s second verbal directive and accompanying hand gesture to get up, the grievor pushes the right leg of Inmate B causing it to hit his left leg. Inmate B then immediately jumps to his feet.

78In terms of the appropriate characterization of the grievor’s actions, it is my assessment, upon repeated viewings of the video, that the suggestion that the grievor “kicked” the legs of Inmate B clearly overstates the nature of the grievor’s actions. By the same token, “nudging” probably understates the nature of the act. The most apt description is that the grievor “pushed” the leg of Inmate B; with a caveat to that being that, on a spectrum of force, the push was closer to a “nudge” than a “kick”.

79The characterization of the nature of the grievor’s act as a “push” as opposed to a “kick” is consistent with Mr. Ireland’s assessment, as he confirmed in his cross-examination that the contact on Inmate B was, in his estimation, minimal; or of a nominal nature, as opposed to “kicking him”. It is also consistent with the description of the event as documented by the members of the RMT as part of the LIR. Similarly, Superintendent Shorts, in his LIR review of the events, subsequent to the RMT assessment, described the grievor’s act as “CO Pratt pushes inmate’s foot/leg”. In fact, as the Union noted, the first time that the grievor is alleged to have “kicked” the leg of Inmate B, is after Superintendent Shorts reviewed the CSOI report in January/February 2017; and it was not entirely clear on the evidence the reason for this change as to his characterization of the grievor’s act.

80While the Employer may have overstated the nature of the grievor’s act in its termination letter, there remains the issue of whether the grievor’s pushing of Inmate B’s leg constituted an excessive use of force. The thrust of the Employer’s position is that the grievor’s action was not necessary; accordingly, by definition, it was excessive. Section 7(1) of the Regulation 778 of MCSA generally sets out the circumstances in which a use of force against an inmate is permitted. The permissible ground for the use of force that is relevant to the circumstances of this case is to “maintain order within the institution”. The parties diverge as to whether the actions of the grievor were necessary to maintain order. The evidence suggests that OM Potter had given the direction to have Inmate B moved out of the hallway; in my view, the grievor was obligated to seek that that order was complied with. In furtherance of seeking compliance, the grievor verbally directed and gestured Inmate B to get up. It is accepted, as Mr. Ireland pointed out, that Inmate B was not a threat to anyone while he was lying on the floor, so a possible course of action was to simply “wait him out”. Yet, OM Potter had given a direction for Inmate B to be moved, and the inmate had failed to respond to the verbal and hand gesturing of the grievor. Accordingly, in my view, the utilization of physical steps by the grievor to get Inmate B moving was reasonable in the circumstances.

81A more contentious issue is whether the grievor’s pushing of Inmate B’s leg was appropriate as opposed to trying to raise the grievor up by grabbing his arm/shoulder. In my view, it was not. Further to this point, I have difficulty accepting the grievor’s explanation that he did not reach down and grab Inmate B’s arm/shoulder due to concerns for his safety. While, it is recognized that Inmate B was apparently not pleased with the fact he was going to be housed in a cell with another inmate, as previously outlined, the grievor had just minutes before reached down to roll Inmate B from his side onto his back for the nursing staff’s assessment; and there seemed to be no hesitancy, whatsoever, with respect to that act. At the end of the day, it is my assessment that the grievor pushed Inmate B’s leg because it was an easy and expedient method to send a message to the inmate to comply with the directive to get moving. While the action of pushing Inmate B’s leg ended up being relatively effective; it was inappropriate, as it displayed a lack of professionalism and respect towards the inmate.

82The more difficult question to resolve is whether the grievor’s actions were “excessive” for the purposes of Section 7(4) of the CECBA. The underlying rationale for the restriction with respect to reinstating correctional employees who have been found to have used excessive force is appreciated. A CO is in a position of power with respect to the care, custody, and control over inmates; accordingly, a finding of an excessive use of force by a CO suggests that it would not be appropriate to place that individual again in a position of care over inmates. This notion of a breach of trust associated with an excessive use of force by a CO was succinctly captured in the following excerpt from OPSEU (Esser) and Ministry of Community Safety and Correctional Services (Watters) cited in Goden:

The 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.

83It is my determination, however, after much reflection, and related to the specific circumstances of this case, that the grievor’s pushing of Inmate B’s leg while inappropriate, was not “excessive” for the purposes of Section 7(4) of the CECBA. As noted, the grievor’s pushing of Inmate B’s leg constituted the administration of a relatively minimal use of force to induce an inmate to comply with a directive given. Moreover, while there is a certain attractiveness to the Union’s argument that a “common sense” approach should be adopted regarding the application of Section 7(4) of the CECBA, the strongest support for the view that the grievor’s action should not be characterized as “excessive" lies with the Employer’s own assessment of the incident. The Employer quite properly reviews extensively any incident that may be potentially associated with an improper use of force by correctional staff; and such reviews are undertaken by experienced evaluators as to the appropriate use of force. In this case, at every review level under the LIR, while there was a notation that the grievor inappropriately “pushes” the leg of Inmate B, there was no characterization of that event as constituting an excessive use of force. At the RMT’s review stage, under the heading Summary of Concerns, the pushing of Inmate B’s leg is identified as being inappropriate; while CO Brunton’s knee strike is characterized as excessive. Significantly, Superintendent Shorts’ own assessment at the last stage of the LIR, under Part 2(d) of the Analysis and Findings Section, which expressly addresses whether the amount of force used was reasonable and not excessive, Superintendent Shorts only identifies CO Brunton’s use of force as excessive. The grievor’s act which is characterized as “CO Pratt pushes inmate’s foot/leg” is listed under Section 2(e) with respect to whether “all other policies and procedures were followed”. Moreover, there is no finding, whatsoever, with respect to CO Pratt pushing the leg of Inmate B found in the CSOI Investigation Report completed by Inspector Micucci. Additionally, the initial Allegation Letter forwarded to the grievor did not contain any allegation of an excessive use of force by the grievor.

84As to the excessive use of force cases relied upon the Employer, a number of those cases are distinguishable on the basis of the nature of the force utilized; which typically involved forcefully striking an inmate, often out of frustration and/or as an act of retaliation. The use of force in Wild involved a CO punching an inmate in the back of his head with a “hard blow” and grabbing the inmate “by his skull and jaw bone and forcibly taking him down”. In Lavallee, a strike to the head of an inmate who was in a prone position was involved, which was found to be likely “an effort to punish the inmate”. With respect to Horan, the finding of excessive force involved a situation where the CO was confronted with a difficult inmate “which produced the peak of the grievor’s frustration and resulted in a loss of control which culminated in a push and a few swift kicks administered to the inmate”. As to Gillis et al., a finding of excessive force was found on the basis that the accused COs: (1) punched an inmate while he was on the ground; (2) ran the inmate into the back wall of an elevator; and (3) punched the inmate, who was compliant and in handcuffs in the elevator.

85The facts in Collin were slightly different than the other excessive use of force cases relied upon by the Employer. The grievor in that case was criminally charged with respect to a vicious assault on an inmate, along with several other COs. The Court, in the criminal proceeding, while unable to conclude beyond a reasonable doubt that the grievor personally administered any blows against the inmate, concluded that the grievor was guilty of being a party to an assault. Those facts involving a vicious assault on an inmate are far removed from the grievor pushing the leg of Inmate B in an effort to get him to comply with a directive to get up off the floor.

86The case that arguably bares the most similarity to the facts in the case at hand is the relatively recent decision in Goden. The facts in that case involved an inmate who had just assaulted a CO. The grievor, while escorting the inmate to the Segregation Unit, was found to have “pushed or directed” that inmate’s head into the door frame of a sallyport. In concluding that it was not necessary to conclusively determine whether the grievor’s actions were a form of retaliation, Arbitrator Watters found that that the CO’s actions were “inappropriate, unnecessary, unprofessional and disproportionate; and as such, excessive”. In my view, there is a discernible and appreciable difference between the grievor, in a relatively minimal manner, pushing the leg of Inmate B; to directing the head of an inmate into a door frame.

87Summarizing, the Employer has established that it had cause to discipline the grievor for his failure to intervene in the altercation between Inmate B and Inmate M in a timelier manner; as well as for the inappropriate pushing of Inmate B’s leg. Hence, the imposition of a rather significant disciplinary sanction is warranted. It is, however, my determination, that it is just and reasonable, given all the relevant circumstances, to provide for the substitution of a penalty other than termination.

88Central to the determination that it is appropriate to modify the penalty of termination is the assessment that there is no reason to necessarily conclude that the employment relationship is irreparably damaged as a result of the grievor’s misconduct. The grievor is a relatively long service employee who, at the time of the events, had a clean disciplinary record. Moreover, the submitted evidence suggests that he generally performed his duties with diligence and in a professional manner. Further to this point, reference is made to the Performance Development and Learning Plan completed by Sergeant Diane Bartlett just two months prior to the grievor’s termination. That document sets out an undeniably favourable appraisal of the grievor’s work performance. In particular, under the heading of Manager Comments, it is noted: “Veteran Correctional Officer who’s earned respects (sic) of Supervisors, peers and offender population”. Additionally, in the section addressing the “Key Commitment” of making “positive contributions to the ministry through actively adhering to policies and procedures…” the Meets Expectations box is checked and under Manager’s Comments it is stated “No concerns in these areas”. It is also of some particular import that the grievor continued to work as a CO, without restriction, upon the completion of the LIR. Specifically, at that juncture, after reviewing the relevant evidence including the video of the incidents in question, the Employer did not deem it necessary, or appropriate, to suspend the grievor pending the CSOI review.

89There are also certain mitigating elements associated with the nature of the grievor’s misconduct. First, as previously outlined, the misconduct in question related to two very brief scenarios associated with a particular inmate altercation. Moreover, in terms of the grievor’s failure to intervene in a timely manner, there was not a complete dereliction of duty on his part as he took steps based on appropriate protocol (arranging for the Code Blue to be triggered, pulling out his pepper spray, being at the ready upon the cell door being opened) to address the altercation. There is also the reality that for a better part of the 37 seconds in question, OM Potter was on the scene; and therefore, ostensibly responsible for directing the efforts of the COs to put an end to the altercation. With respect to the grievor’s inappropriate pushing of Inmate B’s leg, it involved a relatively minimal application of force in order to achieve compliance with a directive. Moreover, it was not associated with an act of retaliation; nor was it malicious in nature.

90At the same time, in terms of exercising the discretion to modify the penalty of termination, consideration has been given to the fact that the grievor did not acknowledge any wrongdoing on his part either at the Allegation Meeting or throughout the hearing. That failure to take responsibility, especially in relation to his failure to take steps to attempt to put an end to the altercation between the inmates sooner, was a contributing factor in terms of arriving at the appropriate penalty to substitute for the termination.

91Ultimately, it is my determination, given all the relevant considerations, that it is appropriate to substitute a 30-day unpaid suspension in place of the grievor’s termination. The grievor is to be reinstated with full compensation (less the period of suspension and subject to mitigation). I remain seized with respect to any issue regarding the implementation of the Award; and retain jurisdiction over the outstanding grievances involving the grievor.