GSB#2017-0250

UNION# 2017-0582-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cowal)

Union

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

May 8, 17; June 15, 28, 2018

Decision

1This grievance challenges the Employer’s decision on April 24, 2017 to terminate the grievor’s employment as a Correctional Officer (“CO”) at the Toronto East Detention Centre (“TEDC”), following an incident on November 17, 2016 whereby a cell door was left unlocked at the evening lock-up and, as a consequence, two inmates had unsupervised access to the dayrooms on the unit for a period of about two hours following lock-up.

2There is no dispute that the cell door was left unlocked. It was the position of the Employer that the grievor failed to carry out his duties in a capable and diligent manner and failed to observe unlocked inmates by failing to secure two inmates in their cell at lock-up. It was the position of the Union that the grievor was not responsible for the incident as he understood that his co-workers were to complete the lock-up procedure and he relied on his co-workers to do so while he carried out other tasks.

3The grievor is subject to a prior agreement with the Employer. The grievor’s employment was terminated on August 27, 2014. That dismissal was grieved and the parties and the grievor subsequently resolved that grievance by entering into a Memorandum of Settlement (“MOS”) dated March 23, 2016. That agreement provides in part:

WHEREAS the grievor and the Union agree that they are committed along with the Employer to providing and following this last chance agreement;

1. The Employer agrees to rescind the letter of dismissal dated August 27, 2014 and substitute a 20-day suspension as discipline for the grounds relied on in the letter of dismissal.

2. The grievor shall be reinstated as a Correctional Officer 2 (“CO”) at the Toronto East Detention Centre effective April 11, 2016. The period of time from August 27, 2014 to September 25, 2015 shall be recorded as 20 days disciplinary suspension. The period between September 26, 2014 and April 10, 2016, will be a leave of absence without pay…

3. In the event that, at any time the grievor is disciplined for:

(i) …

(ii) failure to observe unlocked inmates in his care;

(iii) failure to carry out duties in a capable and diligent manner

(iv) …

(v) …

his employment will be terminated. For greater clarity any future misconduct must be as contained in this paragraph or similar to those in the letter of discipline described in paragraph one. This provision will remain in force until August 27, 2017.

5. If termination arises and it is grieved or disputed in any fashion, the parties agree that the dispute will be placed as a grievance before V.C. Nairn who will determine whether the events giving rise to the discipline referred to in paragraph 4 took place. If the V.C finds that the events alleged took place the parties agree that the appropriate discipline is dismissal.

4There is no dispute that if I find that the grievor engaged in conduct contrary to the terms of paragraph 4 of the MOS, giving rise to some cause for discipline, I have no jurisdiction to modify the penalty of dismissal. The date of the incident was November 17, 2016 during the period in which paragraph 4 of the MOS remained in effect.

5I turn then to the events of November 17, 2016. The grievor was working an 0900 to 2100 shift as a float CO. According to his occurrence report dated November 18, 2016, he was assigned to Unit 3B at 1900 hours. His co-workers on Unit 3B were CO Grainger and CO Pereira. Both of those individuals were new COs with only about six weeks of experience in the facility.

6Unit 3B is divided into two housing units; 3B East (“3BE”) and 3B West (“3BW”), each containing ten cells and a dayroom. At the time, 3BE was being used as court cells and 3BW was being used as a segregation unit. There is a common hallway from which one can access 3BE and 3BW, and between which is an ‘inactive’ area and an office. The video from Unit 3B for the time in question was secured as part of the investigation and it was filed in evidence at the hearing. At 8:33pm on November 17, 2016 the grievor entered the 3BE dayroom in order to conduct the evening lock-up, that is, to secure the inmates in their cells for the night before the shift change at 2100 hours. The grievor was the inside officer and had the keys, while CO Grainger maintained watch from the grill at the door to that unit.

7There were a number of things going on in 3BE requiring the grievor’s attention and distracting him from the lock-up process. The grievor’s occurrence report notes the following. One inmate was attempting to hide in a cell and had to be ordered to return to his cell. Another inmate needed to be moved to a different cell, a matter supervised by the grievor. There was a verbal altercation with inmate “O” who the grievor understood had returned from court and was receiving a large cart of documentary material relevant to his court proceedings. The grievor also ensured that the cart was removed from the unit.

8During the lock-up on 3BE, the video shows the grievor entering the unit, unlocking the cell doors, and engaging in various conversations with different inmates. He is out of range of the camera on a couple of occasions. At 8:42:11pm, two inmates are seen going into cell #2 and pulling the cell door closed behind them. At that time, three doors remained unsecured (cells 1, 2, and 6) and the grievor was near the back of the dayroom in conversation with an inmate secured in cell #5. An inmate from cell #1 briefly exits that cell and then returns. At 8:42:30pm the grievor walks past cell #2 without checking or securing that door, and secures cell #1. He then attends to inmate “O”, who has been waiting at the unit door. The cart is brought into the dayroom and taken to cell #6 where the inmate unloads his court materials. The grievor then secures inmate “O” in cell #6 and takes the cart. He leaves Unit 3BE at 8:43:44pm and heads down the hall to the inactive area. The grievor leaves the cart in the hallway outside the door of the inactive area where it remains until at least 9:16pm when the night shift does its first clock round.

9No one returns to 3BE during the remainder of the grievor’s shift. The grievor is later observed going onto the elevator at 8:48:22pm and subsequently returning to the unit at 8:51:07, less than 3 minutes later. He then attends with his two co-workers in the office area while awaiting shift change. All of this occurs within a window of about 25 minutes.

10At approximately 2307 hours, the two inmates from cell #2 in 3BE were seen on CCTV by CO Luque outside of their cell in the dayroom. The unit was subsequently entered by two COs and the two inmates were secured. The entire unit was then checked by the COs and an Acting Sergeant to ensure that it and the other inmates were secure. Occurrence reports were filed by these individuals as well as by the grievor and his co-workers.

11In his occurrence report, completed at 1300 hours the following day, the grievor wrote:

As I was leaving the 3B East unit I did look around to make sure all doors and hatches were secured and it appeared that they were. I was distracted by all of this movement and did leave the area without doing a final walk through the unit as I usually do at every lockup of every unit. …

I have been made aware that cell #2 on the 3B unit was not secured and as such it raises a massive security concern. I did not intentionally make this mistake and I take full responsibility for my actions. I regret that this incident took place and I am extremely embarrassed by this situation, as a senior staff member I should not let distractions interfere with the way I do my job…

12Deputy Superintendent of Security and Compliance at TEDC, Tony Hill, assigned the investigation to Sergeant McGarrell. Video from the relevant unit and time period was secured and an allegation meeting was held with the grievor on December 19, 2016 with union representation present. Video was shown to the grievor at the allegation meeting.

13At the allegation meeting the grievor stated that he usually started lock-up at cell #1 or #10 and then checked cell to cell. He initially stated that he had completed a count. When advised that none was logged, he stated that his main concern was removing the cart from the unit. The notes record that he stated, “I guess I forgot to go back in and check the doors, which is my normal routine”. The notes also record that earlier in the meeting the grievor stated that he had not noticed that cell #2 was open and that “I assumed that I had already locked it”. The Union did not challenge the accuracy of the notes.

14At the allegation meeting the grievor also stated that he was not aware that, having been the inside officer, he was responsible for logging the lock-up or the count on completion of the lock-up. At the hearing, he testified that CO Grainger had the log book and would have been the one to log the count, had a count been done. He testified that he had not done the count.

15Also in the allegation meeting the grievor stated that he assumed that his co-workers were recording the count and that he was trying to help the new COs who were asking questions while he was trying to do the lock-up. He discussed that there had been arguing with inmates, problems with inmate “O” who had returned from court with voluminous documentary material, a required move because an inmate was in the wrong cell, and an inmate who wanted another blanket. Video was reviewed at the allegation meeting, confirming that inmates had been demanding.

16The results of the investigation were provided to Deputy Superintendent Hill. Contrary to the Union’s submission, Deputy Superintendent Hill testified that he did then review the video. He also reviewed the investigation report and the occurrence reports and concluded that the grievor was responsible for the lock-up and that he had not checked and secured all the cells. He confirmed that the grievor was having issues and discussions with the inmates and that he removed the cart.

17Deputy Superintendent Hill has over 25 years of experience in Corrections in increasingly responsible positions, including the conduct of internal investigations. He did not know the grievor and was not involved with the MOS. He gave an example where he has previously disciplined an employee for a failure to properly secure doors. In that case it was a supply cabinet that had been left unlocked.

18Based on the investigation and allegation meeting Sergeant McGarrell advised Deputy Superintendent Hill that she was considering imposing a 2-day suspension on the grievor. He advised her to contact Human Resources for assistance. As a result, they were advised of the MOS. Deputy Superintendent Hill took the matter over and further discussions were held at the regional level. In the result, the letter of termination issued on April 24, 2017.

19While acknowledging that the grievor’s conduct was not malicious, Deputy Superintendent Hill testified that the failure to ensure that the inmates were all secured was a significant error. He explained that the lock-up takes place across the institution to ensure that inmates are accounted for, in their assigned cells, and secure, the latter being described as the most important. The institution’s correctional staff on the night shift drops to 14 for a count of between 350-390 inmates. Staff completing multiple rounds during the night expect that the CO can enter a dayroom confident that no inmates are there and that there is no risk of an assault, hostage-taking, movement of contraband, or other issue. He noted that it is necessary for the CO to use their foot to ensure that the door is closed while they use the key to engage the deadbolt and then pull on the door to ensure that the lock mechanism is engaged. The video discloses the grievor using this technique on other cell doors.

20In terms of the failure to document the formal count, Deputy Superintendent Hill relied on Sergeant McGarrell’s notes from the allegation meeting wherein the grievor claimed to have completed the count but none was logged. The log book does indicate that CO Pereira conducted a patrol at 2045 hours that recorded the count for Unit 3B. It also records that a number of patrols were conducted in 3BE by night staff prior to the inmates being seen unsecured in the dayroom.

21In the result, Deputy Superintendent Hill found that there was a failure to check to ensure that all ten cell doors in 3BE were secured, contrary to the Standing Orders. He further found that the grievor had failed to fulfill his duties in a diligent and capable manner by failing to comply with lock-up practices, thereby creating a significant health and safety risk. He described that COs are trained to deal with inmates misbehaving as such behaviour is to be expected. He described the work as the care, custody and control of the inmates. In this case, he testified, the grievor exercised control over the inmates but did not fulfil the custody aspect of the job. Finally, he concluded that the grievor had failed to document the count.

22At the hearing, the grievor testified that he was told that he had left a cell door open and that when he had taken responsibility for it, it was in circumstances where he had not remembered what had happened. He testified that he had not seen the full video at the time of writing the occurrence report or at the allegation meeting, and, having reviewed it prior to the hearing, realized that the shift in question was one where he had asked his co-workers to complete the “small task” of locking-up and doing the count while he left the floor. He asserted that the video showed that he had not been on the unit to finish the task and that he ought not to be held responsible for the failure of his co-workers to complete the work.

23The evidentiary issue becomes, did the grievor ask his co-workers to finish the lock-up? Having carefully considered all of the evidence, I am persuaded that the grievor did not ask his co-workers to complete the lock-up while he left the floor to get the night keys.

24The grievor had had no interaction with the inmates on 3BE that day until he arrived on the unit at about 1900 hours. The grievor described that COs Pereira and Grainger were hesitant as to who would lock-up, so he volunteered as the senior CO. He took the keys and entered 3BE.

25The grievor testified in some detail about the conduct of the inmates and the issues interfering with a straightforward lock-up. He spoke to those matters identified in his occurrence report and provided details and other additional information. He did so in conjunction with reviewing the video evidence. It is the case that at least two of the inmates were making various demands, while apparently being belligerent and rude, and that their conduct and demands interfered with the grievor’s ability to readily complete the lock-up. Inmate “O” was one who had been acting out and he was known as someone who could be volatile. CO Pereira wrote in his occurrence report that he heard indistinct shouting coming from 3BE while he was waiting in the hallway at the door to the inactive area.

26The grievor also testified that several inmates had let him know that there were no blankets in their cells. He explained that blankets can be removed by inmates cleared to do cleaning and are difficult to replace. The grievor testified that he told inmates that he would check the laundry area once the lock-up was completed. The video discloses that at 8:40pm, during the lock-up, the grievor goes to the back of 3BE and is out of camera range briefly. At 8:41:48pm the grievor is seen returning on camera and attending at cell #5, where he unlocks the door and delivers a blanket to an inmate in that cell. He then secures that cell. There is no other evidence of blankets being sought or delivered on the shift.

27In chief the grievor testified that he was acting out of his normal routine due to the volatility of the inmates and that the environment caused him to change his usual procedure. He was concentrating on getting the more compliant inmates into their cells so as to reduce the risk of escalating behaviour.

28The grievor also testified that he could have used CO Pereira’s help, given the disruptions, but that CO Pereira had disappeared. The grievor testified that when the cart was brought in, CO Grainger advised the grievor that CO Pereira was watching an inmate who was waiting to be admitted to segregation in 3BW. CO Grainger also advised the grievor that they were now behind in their required segregation rounds. The inmate had been placed in the inactive area but the door was not secure (as the grievor had the keys). CO Pereira had to remain at that door to monitor that inmate.

29The grievor testified that a more experienced CO would have been able to convey more information concerning the type of inmate being admitted to segregation, enabling the grievor to make an informed assessment as to the priority of that admission. It appears that CO Grainger conveyed no information to the grievor as to the threat or security level of the inmate. Nor is there any evidence that the grievor asked for information. The grievor asserted that he felt some urgency to it, referring to both the delay in completing rounds on the segregation side and his prior experience in dealing with the suicide of an inmate in segregation, resulting in his taking segregation very seriously.

30As noted earlier, once cell #1 was secured, the cart was brought into the unit and inmate “O” pushed it into cell #6 and unloaded his materials. The grievor then took the cart, secured cell #6, left 3BE, and headed to the inactive area for purposes of admitting inmate “W” to segregation.

31The grievor testified that, while he admitted the inmate to segregation, CO Pereira conducted rounds on 3BW. That is confirmed by the video. CO Grainger was monitoring at the 3BW grill door. There is a log entry made by CO Pereira at 2045 hours confirming that inmate “W” was admitted to segregation and that inmate “O” returned to 3BE. There is a second log entry at 2045 hours by CO Pereira confirming a patrol and recording the full unit 3B count. CO Pereira did not attend 3BE. He was conducting the more frequent segregation round on 3BW. He does not log the patrol as specifically relating to 3BW as the night shift officers appear to, having regard to the circumstance of having a mixed unit with different patrol requirements for each side.

32In his chief the grievor testified that when he left 3BE with the empty cart he did so in order to put the cart away, to admit the inmate to segregation, and to check for blankets “so that when I returned I could provide what the inmates so pleasantly asked for”. He also testified that he knew that there was enough time to finish the lock-up on 3BE and that 3BW, being segregation, was already secure. The grievor did not return to 3BE that shift. As noted earlier, review of the video shows that the grievor provided a blanket to an inmate in cell #5 at 8:42:48pm. The grievor did not testify that he asked his co-workers to take blankets into 3BE, something they would not otherwise be aware was still outstanding. The grievor also did not put the cart away, other than to leave it in the hallway outside the inactive area. Nor did he testify that he asked his co-workers to put the cart away.

33After admitting the inmate to segregation, the three COs went into the unit office.

34The grievor testified in chief that once in the unit office area he gave the day shift keys to CO Grainger and told him and CO Pereira to complete the lock-up and to open the side doors as the hall door is secured overnight. In cross-examination the grievor testified that he threw the keys to CO Grainger and that CO Pereira was there, but that he was talking to CO Grainger and could not confirm whether CO Pereira had heard him.

35Of some note, there was no evidence that the grievor said anything to CO Grainger as they left 3BE to suggest that someone would have to return or that the grievor had not finished the lock-up. Had the grievor so believed, it is probable that he would have said something to that effect at that time.

36The grievor testified that he volunteered to go downstairs to control to retrieve the night set of keys, telling CO Grainger that he needed a breather following the verbal altercations. The grievor can be seen on the video entering the elevator at 8:48:22 pm and returning to the unit at 8:51:07pm, less than three minutes later.

37The grievor testified in chief that on his return to the unit he asked if everything was ok and that CO Grainger confirmed that it was. The grievor testified that, as a result, he believed that his co-workers had completed the lock-up and had done and submitted a count and that he was unaware that they had not done so. The grievor also offered that he noted that the side doors were still locked, a matter he said his co-workers acknowledged. In cross-examination the grievor stated that people leave the side doors “all the time” even when they complete the lock-up, so he had no reason to ask his co-workers whether they had completed the lock-up. This arguably contradicted his evidence that he did ask CO Grainger if everything was ok.

38Also in chief, and in passing, the grievor testified that, on his return to the unit, “neither partner left the office”. While it appears that the grievor made the remark as part of his suggestion that his co-workers had done little and had failed in their duties, it would also suggest that, had he asked them to complete the lock-up, the grievor would or should have questioned whether his co-workers had left the office and completed the lock-up during the short period that he was off the floor, particularly as they had not opened the side doors as he claims he had asked.

39The video discloses that, having entered the unit office at 8:46pm, neither CO Grainger nor CO Pereira left the office until 9:00pm. And, following his return to the unit office at 8:51pm, the grievor also remained in the office until 9:00pm. There was some activity of other COs in the hallway and office between 8:57-9:00pm.

40The grievor testified that he also spoke to CO Grainger in the unit office about the altercation in 3BE, stating that he “had to tell him that it was not a great time to try and convey whatever it was he was trying to convey” while the grievor was engaged in an argument with an inmate. In the allegation meeting, the grievor similarly recounted having to speak to CO Grainger about his conduct while the grievor was involved in a verbal altercation with inmate “O”. In the allegation meeting he described that the “rookies were bugging him”. In evidence he explained the comment as referring to the unwelcome interjection by CO Grainger while the grievor was engaged with the inmate. The grievor testified that he stressed this point in the allegation meeting because he “knew in the back of my mind’ that something must have happened, as he had never left a cell door open before. In chief, the grievor indicated that he believed that this exchange had occurred at the same time that he asked his co-workers to finish the lock-up.

41The grievor testified in cross-examination that he knew someone had to go back to 3BE as he knew the job was not done and he knew he had to give toiletries and do the count. He acknowledged that his routine had been broken, that that was a mistake, but that he had been called off the lock-up, having done 90% of the work, asking his co-workers only to do the remaining 10%. He testified that his mistake was in leaving his co-workers to do the work and trusting them to do it while he was out of the area.

42CO Grainger did not recall the grievor asking him to complete the lock-up. CO Pereira testified that he was not involved with the lock-up of 3BE that evening. He testified that he had no discussion with the grievor about the lock-up on 3BE and that he was not asked by the grievor to do the lock-up on 3BE that evening. In terms of conversation in the unit office, CO Pereira thought he recalled that the grievor told them that he was going to get the night set of keys.

43COs Grainger and Pereira testified that in doing the lock-up, the usual practice is to go cell by cell. If the order was disrupted, CO Grainger testified that he would go back and check all the doors to confirm that they were secure. They also stated that the CO doing the lock-up is usually the person to complete the count slip that is left to be picked up near the end of the shift. In their experience the count is always provided in writing. The grievor testified that the count could also be called in. In any event, the grievor testified that he neither left a count slip nor called in the count that shift. CO Grainger assumed that the count slip had been completed that night as the count ‘cleared’ and his shift ended.

44The log from the control room indicates that, on November 17, 2016, the count was called at 2035 hours, that a recount was called at 2057 hours, and that the count cleared at 2100 hours.

45It cannot reasonably be said, as the grievor asserted, and the Union argued, that the grievor failed to recall what happened when he wrote his occurrence report the following day. Notwithstanding testifying that he was rushed to complete the report, the grievor also testified in chief that he took time to reflect before writing it as he had never left a cell door open before. In that report he recalled and identified various of the disruptions on 3BE during the lock-up, including that one inmate was not in his designated cell and had to be ordered to return; that another inmate had been placed in inmate O’s cell and the grievor had to facilitate the move of that inmate to another cell; that he engaged in a verbal altercation with inmate “O”; that inmate “O” received a large quantity of documentary materials on a cart during the period of moving the inmates; and that the grievor ensured that the cart was removed from the unit.

46In cross-examination, the grievor was asked about the failure, in that report, to recall the important detail that he had asked others to finish the lock-up. He testified that he had not changed his position because he was told that it was his mistake and he wrote the report as requested, that is, that he simply accepted responsibility for the incident without any independent thought. This contradicts his evidence that he took some time to reflect before writing the report. The grievor also responded that had he known “it was that night and recalled it was that night it would be there and we might not be here”. The fact is, the grievor wrote the occurrence report some sixteen hours after the incident. He knew precisely which night was at issue and his account of events was accurate.

47In that report the grievor makes no mention of asking his co-workers to complete the lock-up. Instead, he acknowledges that he was distracted and left the area without doing a final walk through of the unit as was his usual practice. Having been told that he left a cell door open, it is simply not credible to suggest that the grievor would not also have recalled the very important fact that he had asked his co-workers to complete the lock-up, and that he was therefore not responsible for the unsecured cell door.

48Had the grievor asked his co-workers to complete the lock-up and had they agreed to do so, one would also have to conclude that at least CO Grainger, if not both COs, simply disregarded that agreement and chose not to take any action. It would also require a conclusion that CO Grainger expressly lied to the grievor on his return to the floor, or lied by omission. There was no assertion that CO Grainger failed to act as retaliation for the grievor having spoken to him about the ‘unwelcome interjection’. Rather, the grievor’s evidence in that regard was directed to his assertion that there were significant distractions in the unit and that the inexperience of his co-workers was making his job more difficult. The evidence did not support a conclusion that CO Grainger acted spitefully.

49The grievor stated late in his cross-examination that it was “maybe my stupidity for not knowing the agreement”, referring to the MOS. That suggests that the grievor did not initially consider that this conduct would be caught by the terms of the MOS and that his response to the Employer at the time of the incident was the more forthcoming response. This statement can only reasonably be interpreted as the grievor acknowledging that, had he known that this conduct would be caught by the terms of the MOS, he would not have admitted to it. But he did, and his subsequent and different explanation, in the context of all of the evidence, can only be seen as an attempt to avoid the consequences of the MOS.

50As was argued by the Union in seeking to shift responsibility to CO Grainger, “any reasonable CO would know that he is supposed to lock up the inmates”. The Union also sought to shift responsibility to the Employer for putting two inexperienced COs on a more volatile unit while also asserting the importance of maintaining the safety and security of the inmates and staff. However, as the grievor noted, there was time to complete the lock-up prior to the end of the shift had anyone returned to the unit to verify that all was secure.

51Having regard to all of the evidence, I find it more probable than not that the grievor left 3BE believing that he had checked all the cell doors and believing 3BE to be secure and that the lock-up was complete. I find that the grievor made no request of his co-workers to complete the lock-up. His misconduct flows from a failure to engage procedure in the very circumstances for which such procedures are designed – where one is distracted from the task at hand by other demands. I find that the grievor failed to conduct a systematic check of the cell doors after all the inmates were housed in 3BE. Instead he left 3BE, believing, without verifying, that he had secured all the cell doors.

52The Union asserted that the Employer had failed to complete a proper investigation because it failed to interview the co-workers at the time. The failure to interview co-workers appears to have arisen because the grievor took responsibility for the incident in his occurrence report. While it would have been prudent to interview the co-workers at the time, I am not persuaded that the failure to do so created any prejudice or in any way changes the fundamental conclusion regarding whether the grievor asked his co-workers to finish the lock-up that evening. Even assuming that they have motive to now deny the assertions made by the grievor, I am not persuaded on the evidence that the grievor made the request that he asserts he made.

53The Union also asserted that the grievor was prejudiced by the inability to review the full video prior to or during the allegation meeting. There was no evidence that the grievor and/or the Union had requested the opportunity to review the full video and/or that the Employer had denied any opportunity to review the full video prior to or during the allegation meeting. On the evidence before me, any prejudice does not lie with the Employer.

54The evidence with respect to the alleged failure to document a count is less clear.

55At the allegation meeting the grievor stated that he usually did a unit count once the lock-up was complete. No count was logged by the grievor and the Employer relied on this in holding the grievor accountable. However, also during the allegation meeting, the grievor stated that he was not aware that he was responsible for documenting the count at lock-up. Section 5.13 of the Standing Orders stipulates that it is the back-up officer at the grill door who shall record each patrol in the log book (see page 2 of 4). No distinction appears to be drawn in the standing orders between a clock round and a patrol done in the context of lock-up. The back-up officer at lock-up was CO Grainger. The patrol at 2045 was logged by CO Pereira even though CO Grainger was the officer on the grill door at 3BW at the time. Whether the Employer enforces this particular requirement was not addressed in the evidence. Based on the evidence, I am not prepared to attribute responsibility for the failure to document a formal count at lock-up to the grievor. Any issue as to who provided the count slip that evening is equally obscure. The fact that the count cleared suggests that a count slip was provided by someone from the unit, even though no one could remember having done so.

56Having regard to the evidence, I find that the Employer has not established that the grievor was responsible for a failure to document the formal count as alleged, and I find therefore that the Employer had no cause to discipline the grievor in that regard.

57I was referred to the following decisions: OPSEU v. Ontario (CSCS) (Giraudy Grievance), decision of Vice-Chair Petryshen dated September 8, 2009; OPSEU v. Ontario (CSCS) (Paplinskie Grievance), decision of Arbitrator Watters dated February 28, 2018; OPSEU v. Ontario (CSCS) (Langford Grievance), decision of Vice-Chair Stephens dated April 26, 2017; and OPSEU v. Ontario (CSCS) (Bellamy/Brown Grievances), decision of Vice-Chair Petryshen dated July 7, 2011. These decisions essentially stand for the proposition that a failure to properly supervise and secure inmates, or to inappropriately risk the health and safety of staff or inmates is cause for discipline.

58So, for example, in Bellamy/Brown, supra, two correctional officers were aware that contraband was being passed between two cells and they failed to intervene. In dismissing the grievances challenging their termination from employment, the Vice-Chair found that their inaction amounted to a complete failure to comply with their obligations concerning contraband:

16…By not addressing the contraband issue appropriately, [the grievors] placed at risk the health and safety of inmates, of other correctional officers and of themselves. This makes what occurred…a particularly significant and serious incident…I have no hesitation in concluding that [the grievors] engaged in serious misconduct and that the Employer had cause to discipline them.

59In Langford, supra, even where the Employer was found to have condoned the failure to conduct security tours to a standard that ascertained whether there was a ‘live body’ in the cell, the Board still found that “it would not be reasonable for an employee to assume that there is no need to check on the health or safety of inmates” and that there was cause for discipline for the failure to look into each cell during a security tour (see paragraph 195).

60And in Paplinskie, supra, the Arbitrator found:

89ultimately, there is no doubt that the handing of the Laundry Room key to inmate D was completely unacceptable and indefensible...It is indeed fortunate that no harm resulted from the grievor’s actions…He testified that he now understands he made a poor and unintelligent decision at the time…I find that the grievor’s handing of the key to inmate D was likely a spur of the moment reaction, albeit an unacceptable one, to the inmate’s comment about the key being dropped.

61In that decision the Arbitrator considered the grievor’s evidence that he had been distracted and less focussed at work due to personal issues. However, that did not relieve the grievor from responsibility for his misconduct, and, in imposing a lesser penalty than discharge, the Arbitrator commented:

90…

(i) …I have been persuaded that the grievor understands that, as CO working in a secure institutional setting, he must exercise sound judgment and common sense and act in accord with all applicable policies and procedures. In the final analysis, I think it unlikely that he will reoffend. If he does, it is doubtful that arbitral discretion would again be exercised in his favour.

62Inexperienced co-workers might be less helpful or observant than a more experienced correctional officer. However, that inexperience was something of which the grievor was aware and of which he needed to take account.

63The Union asserted that the standard set out in paragraph 4 of the MOS is that of “capable and diligent” and is not a standard of perfection. The Employer did not disagree. The Union’s argument was based on the assertion that the grievor was reasonably entitled to rely on his co-workers to complete the lock-up, an assertion that I have found is not supported by the evidence.

64As found at paragraph 51 above, the grievor failed to engage procedure and thereby failed to conduct a systematic check of the cell doors on 3BE on November 17, 2016 in order to verify that they were all secure. Requiring that the inside CO verify that all inmates are secure prior to a changeover to night shift, even while being distracted and berated by those inmates is not imposing a standard of perfection. It is the core of a CO’s responsibilities. That failure represents a failure to carry out the duties of a correctional officer in a capable and diligent manner in violation of sub-paragraph 4 (iii) of the MOS and constitutes cause for discipline.

65While I understand the grievor’s position that this lapse ought not to result in the loss of his employment, it is the case that the grievor has already been given a second chance. This misconduct, on its own, would not result in termination from employment. The Employer might have determined, based on all of the circumstances, including that it had some cause to discipline the grievor, that it would not impose the consequence set out in the MOS. It chose to abide by the terms of the agreement that the grievor had entered into. It was entitled to do so. Having found that there was some cause for discipline in the circumstances here, I have no jurisdiction to relieve against the consequences set out in that agreement.

66Having regard to all of the above, this grievance is hereby dismissed.