GSB#2017-0127
UNION#2017-0369-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Miller)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Reva Devins
Arbitrator
FOR THE UNION
Christopher Bryden Ryder, Wright, Blair & Homes Counsel
FOR THE EMPLOYER
Stewart McMahon Treasury Board Secretariat Counsel
HEARING
August 30, 2017; March 7, April 27, May 7, 18, June 4, 18, Sept 20, October 12, 23, November 7, 27, 2018; February 22, March 8, May 30, June 6, August 15, 2019
Decision
1The Grievor, Jesse Miller, was a Correctional Officer (“CO”) at Central North Correctional Center (“CNCC”). He admits that he neglected to scan the dayroom when he delivered meals and consequently did not see a fight in progress. He also acknowledged that he missed an injured inmate when he conducted his tour later the same day. Management lost trust in the Grievor’s ability to perform the core duties of his job and concluded that termination was warranted based on the gravity of the misconduct and the Grievor’s previous record of discipline.
2The Grievor acknowledged from the outset that he failed to properly execute his duties, however, he apologised and promised that he would do better in the future. In these circumstances, the Union maintained that discharge was a disproportionate response. Counsel also argued that there were other instances where CO’s had not been disciplined for similar conduct and therefore discharge in this case amounted to differential treatment.
Inmate Fight
3The allegations against the Grievor arose in the context of an inmate fight that went on throughout the day on July 25, 2016. The fight was captured on video surveillance, beginning around noon and initially lasting roughly 20 seconds. It resumed a few minutes later and continued, sporadically, over the next several minutes.
4Later that afternoon, inmates began fighting again, with one inmate on the ground for an extended period of time while another repeatedly stomped on his head. Other inmates eventually stopped the fight and half carried, half dragged the injured inmate to the shower stall where he was seated on the bench, behind a half wall. One of the inmates eventually contacted staff to report that someone was hurt after he slipped in the shower. The injured inmate was then escorted out of the wing, assisted by medical staff and taken to hospital for further treatment.
First Incident: Delivery of Meals
5The Grievor and his partner, CO 11, were responsible for delivering the lunch cart to the unit on July 25th. Normally, trays are put on a cart, counted by the COs to ensure that they have the correct number of meals and wheeled into the day room housing the inmates. The trays are then distributed by a designated inmate. Typically, one CO pushes the cart and the other signals to the control module that it is safe to unlock the door. Most of the inmates are usually gathered at the front window, waiting for their meals to arrive.
6The Grievor acknowledged that on July 25th, when he and his partner delivered lunch at approximately 12:00 noon, he did not look into the dayroom before indicating that the door could be unlocked. His regular practice included visually scanning the room to make sure it was safe to open the door, but he admits that he did not do that on this occasion. He also admitted that if he had looked, he would have seen the fight in progress and taken steps to stop it.
7The Grievor explained that it was a very busy day – they were short staffed and had just come off a lock-down. The inmates were angry and stressed and he was doing his best to make sure that they got what they needed, including delivering their meals in a timely way. He counted the meals before they entered the wing and did not take the time to look inside before his partner pushed the cart into the dayroom.
8On cross-examination, after reviewing the video, the Grievor confirmed that he and his partner delivered the lunch carts to all five wings in less than 2 minutes – between 11:59 am and12:00:49 pm. He also acknowledged that he would ‘eyeball’ the number of trays at the door in order to count them, which would take roughly 3-6 seconds.
9Video of the meal cart delivery shows a couple of inmates waiting at the window and a number of others in the middle of the room watching the fight.
Second Incident: Inspection Tour
10The Grievor and CO 1 conducted a two-point inspection tour in from 17:17: 47 to 17:18:43. They walked through the room to the Diester, an electronic register that records the time upon activation, across the back of the room, past the shower stalls to the second Diester, back to the door and then they departed. Throughout the tour, the Grievor faced his partner, engaged in an animated conversation and did not look around the room, speak to any inmates, look in the shower, toilet or under the stairs. One of the inmates stood in front of the shower where the injured inmate is seated, with his arms stretched out across the half wall. No one was visible inside the shower.
11The Grievor described his normal practice as somewhat variable, but said he tried to appear approachable, answering inmate questions and treating them normally. On this occasion, he did not speak to anyone other than his partner and recognizes that he should have been more observant and looked in the shower area. Furthermore, he felt very badly that someone had been hurt and says that he would have taken him out if he had known the inmate was injured.
Pre-Disciplinary Investigation
12The incident on July 25, 2016 was investigated locally and reviewed by the institution’s Risk Management Team (“RMT”), which was comprised of two Deputies and an Operational Manager. The RMT reviewed the videotapes and the relevant documents before concluding that the Grievor and his partner had not performed their duties as required.
13A further investigation by the Correctional Services Oversight and Investigation (“CSOI”) confirmed the conclusions reached by the RMT. The investigation was conducted by Inspector Michael Mizzi, who reviewed the institutional videotapes, Log and Notebook entries, Occurrence Reports, Local Investigation Report, Security Clock Rounds and inmate photos. He also conducted interviews with correctional staff, including the Grievor, his partner and the control module officers.
14Mr. Mizzi found that the Grievor and his partner failed to do a visual scan of the dayroom prior to opening the door and failed to do a visual check of the shower stall while conducting their afternoon tour. At arbitration, Mr. Mizzi elaborated on his concerns. The first issue was the Grievor’s failure to scan the dayroom before opening the door, which was contrary to policy and the expectations of the officers in the control module. Mr. Mizzi also testified that at mealtime the inmates are normally at the window in anticipation of the meal delivery, but in this instance, they were all looking at the fight taking place at the other end of the room.
15The second area of concern for Mr. Mizzi was the way the Grievor conducted his tour. He did not engage with his surroundings, focussing exclusively on his partner instead. He also neglected to look in the shower stall, an area staff know is used to conceal contraband or to clean up after a fight. Moreover, an inmate was standing by the shower, with his hands up on the walls as if he was trying to block or protect something when the Grievor and his partner walked past. Mr. Mizzi regarded this as a signal that something was being concealed and he believed that the officers should have looked behind the wall to see what, if anything, was being hidden. If they were concerned about the inmate’s privacy, they should have called out to ask if everything was alright.
16With respect to the CO’s in the control module at lunch, Inspector Mizzi watched the video and concluded that they were not negligent in the performance of their duties even though they did not see the fight in progress. These officers are required to do a number of tasks and have discretion to determine when they are performed. In a perfect world, officers would watch every wing at all times, but that is impossible. In his opinion, the COs in the control module during lunch were in the course of their duties running the Unit when the fight took place. Although they would have seen the fight had they looked at the right time, they were not in a comparable position to Mr. Miller, who was required to do a visual scan of the room before opening the door, precisely when the fight was occurring.
Prior Discipline
17The Grievor’s prior disciplinary record included a ten-day suspension for failing to conduct an electronic security tour, failing to follow policy by entering an inmate occupied area without backup, failing to report having witnessed his colleagues with prohibited items and falsifying a logbook entry. The conduct in question took place on March 12, 2015 and the Disciplinary Letter was issued on October 22, 2015.
Grievor’s Admission and Apology
18The Grievor attended the allegation meeting with a prepared statement of apology, which he read and then handed in at the meeting. It read as follows:
Allegation #1:
I’m sorry I didn’t see the fight when I opened the door. Seeing we were short staffed, I was trying to count the meal trays as they were going into the wing, seeing we had been having meal issues. Had I noticed the fight, I would of (sic) dealt with it accordingly. Earlier in the morning, two inmates were sparing (sic) in F wing and I counselled them. I’m sorry and will in the future adhere to ministry policy and be more careful.
Allegation #2:
During the tour, I didn’t notice that the inmate was hurt. I thought the inmate was changing because he had a shower. The cleaner was standing in front of the shower and I was looking at him. Again I’m sorry I missed it, and I certainly would of (sic) dealt with it had I noticed. Again, I will be more careful and observant in the future. 10 min after the tour, we were notified and I addressed the situation immediately, certainly not trying to avoid it.
19Throughout the investigation and at arbitration, the Grievor continued to acknowledge that he should have been more observant. He recognised that he should have looked inside the dayroom before signalling to the control module to open the door and checked the shower area when he did the afternoon tour. He said that these were honest mistakes, not done on purpose, that he was sorry and that it would not happen again.
20Nonetheless, the Grievor did not think that he deserved to be terminated for either allegation because, in his words, he “was trying to do his job. I know I made mistakes, but it was certainly not on purpose.” He said that he wasn’t making excuses, but sometimes he was doing other duties, like counting the meal trays. He’s not perfect, but his actions were not malicious, and he never meant to hurt anyone. Despite all of this, he believes he was a good CO and did not deserve to be fired.
21The Grievor testified that losing his job destroyed his life: he felt humiliated, he lost his house and as a result, his relationship with his son suffered. For him, being terminated was much more significant than losing a regular job. He had wanted to work as a correctional officer since his youth, he went to school specifically to train for this work and he took great pride in his job.
22The Grievor also testified that the Employer’s view that his actions undermined their trust in him and damaged the employment relationship made him angry. He really didn’t understand why they would arrive at that conclusion. He understands that he made a mistake and could have done his job better, but he wasn’t just goofing around. He believes that he became complacent, but realizes now that it is easy to fall into a rut and that there are always better ways to do his job.
23On cross-examination, the Grievor acknowledged that he understood that the care and custody of inmates was his core responsibility. He agreed that he made no effort to engage with the inmates on his afternoon tour but said this was an aberration from his usual practice. He knows that he missed things, like the fight and the injured inmate in the shower and admitted that he did not know that anyone was in the shower stall when he walked by. Nonetheless, he maintained that he was trying to do his job. When he was directly asked why the employer should believe that he won’t become complacent again when he admits falling into a rut only 9 months after he was previously disciplined, the Grievor responded that he did not know how to answer.
Decision to Discharge the Grievor
24Norm Walker, then the acting Superintendent at CNCC, reviewed the RMT and CSOI reports and decided to discharge the Grievor from employment. In arriving at his conclusion, Mr. Walker accepted and agreed with their conclusions that the Grievor had failed to discharge his duties as required. He concluded that the Grievor neglected to observe what was going on in the dayroom at lunch and made no effort to check the shower stall during his tour later in the day. As a result, he failed to see the fight in progress and missed seeing an injured inmate during his afternoon rounds.
25Mr. Walker also viewed the Grievor’s afternoon tour as wholly inadequate: he and his partner did a very brief tour without taking the time to engage with inmates or actually look around to see what was going on in the wing. In his view, they merely walked in, pressed a couple of buttons and left. He believed that it was important for officers to pay special attention to areas where assaults take place or contraband is hidden, including the washroom, shower, under the stairs and closet in the back.
26An allegation letter was sent to the Grievor and he and a Union representative attended a pre-disciplinary meeting. Mr. Walker did not attend the meeting but reviewed notes from the session and Mr. Miller’s written statement. In the end, Mr. Walker did not accept the authenticity of the Grievor’s apology or his promise that the misconduct would not happen again. The Grievor had recently been disciplined for similar problems and was fully aware of the expectations regarding the performance of his core duties.
27Mr. Walker decided that discharge was the appropriate penalty in all the circumstances, which involved significant misconduct and a serious assault on an offender. He believed that the Grievor showed an extreme lack of judgment and placed the safety of inmates in his care in jeopardy. Ultimately, Mr. Walker concluded that he had no faith in the Grievor or confidence that he would not engage in repeated acts of a similar nature in the future. He took into account the Grievor’s seniority and admissions, however, the Grievor had received a ten-day suspension fairly recently and, in his view, a twenty-day suspension would not fix the problem. In light of all the circumstances, Mr. Walker was not willing to take the risk that this could happen again and lead to another serious assault or possible death.
Comparator Incidents
28The Union identified three incidents of differential treatment where it alleged that CO’s were not disciplined in comparable circumstances. The first example was management’s failure to discipline two of the CO’s in the control module on July 25th when the fight initially broke out. CO 2 was disciplined, however, CO’s 3 and 4, who were in the control module at noon when the fighting began, were not.
29CO 3 was finishing her shift when the fight began and was relieved by CO4 shortly after noon. The surveillance video records her working in front of multiple video monitors, watching the meal carts go by, then continuing to scan the various screens and the meal delivery. CO 3 is relieved by CO 4, who settles in at 12:02:42; he looks around, removes his belt and puts it away. He continues to look around the Unit, then takes out a sandwich, sits in front of the computer and begins to type on the keyboard. Over the next several minutes he frequently stops typing, looks up and around, goes over to the other monitors and does a full scan of the Unit.
30The next incident took place on August 19, 2016. CO 5 did a two-point tour and was unaware that there was an injured inmate in the shower until it was brought to her attention. The video of inmate activity shows inmate AA being assaulted by a number of inmates around 4:33 PM. He is struck on the back of the head, kicked and punched numerous times over the course of the next 10 minutes. Inmate AA eventually enters the shower and appears to be showering when others follow him and resume the beating. At 4:43:28 the other inmates leave the shower, inmate AA appears to fight his way out and run into the middle of the unit, but then re-enters the shower stall at 4:43:51 PM.
31At 4:44:23 PM CO’s 5 and 6 entered the wing to conduct their tour. CO 5 moved down the left side of the room and CO 6 proceeded down the right. CO 5 walked by the shower stall containing inmate AA and is met at the half wall in front of the shower by another inmate. CO 5 appeared to speak with the inmate and turned to begin exiting. She then looked back over her shoulder toward the shower stall where inmate AA remained and appeared to speak to someone in that direction. CO 5 and 6 turn around, walk towards the shower and talk to inmate AA, who then exits the shower and is escorted out by CO 5.
32Inmate AA was assessed by healthcare and noted to have bruising, redness and abrasions down the side of his body from his armpit to his hip. He also had a goose egg under his right knee, which was raised, red, bruised and swollen, with a superficial scratch over his left forearm. The nurse further reports a gaping Y shaped laceration on the side of his scalp. Inmate AA was sent to hospital for medical attention.
33CO 5 and 6 filed separate Occurrence Reports. CO 5 reported that during the tour inmate AA was in the shower and yelled “Yo CO”. She asked what he needed and he advised that he needed “PC”. She confirmed that he wanted to leave and escorted him to medical. She realised that there was blood on the shower floor when she and her partner approached the inmate to escort him out. CO 6 confirmed that CO 5 advised him that inmate AA had to leave and that he saw blood on the floor when he approached the shower stall.
34The final comparator incident occurred on August 30, 2016, when multiple altercations, among several inmates went undetected throughout the morning. The agreed statement of what can be observed on video records numerous fights. The first altercation starts at 9:02:00 AM and lasts until 9:02:20, including a period of time where one of the inmates fell to the ground and the other continued punching him.
35At 9:25 AM three inmates begin fighting and a number of inmates can be seen watching. At 9:27 AM, the two inmates involved in the original fight start to fight again and, a few minutes later, two more inmates begin fighting, with almost all of the other inmates turning their heads to watch. At 9:32 more inmates join the fight, while the original two inmates continue fighting until 9:32:45 AM. There is then a period of relative calm, until 10:17:16 AM, when two inmates resume fighting for roughly two minutes.
36Documentation filed afterwards notes that a total of five different inmates were identified as having been engaged in fights. One of the inmates was subsequently observed holding his face, which was swollen, and wiping blood from his ear. Another inmate suffered facial bruising and soft tissue injuries.
37There was no video of the control module when the fights were taking place.
38Mr. Walker testified that surveillance video is primarily reviewed to determine what happened and who was responsible when an inmate is injured. The Sergeant reviewing the video would prepare an Incident Report and flag any suggestion of staff misconduct. Typically, where there if no specific concern about staff, senior management rely on the incident report without viewing the surveillance video themselves.
39With respect to the comparator incidents identified by the Union, Mr. Walker confirmed that there were no notes or flags on file with respect to the incidents on August 19 and 30, 2016. Nor did Mr. Walker see anything that caused him to be concerned about the conduct of either the officers in the control module on August 30th or CO 5 on August 19th. He also spoke to the local managers who investigated these incidents, but they had no independent recollection of reviewing the documents or video that pertained to these occurrences.
40In Mr. Walker’s view, the tour performed by the Grievor was totally different than that of CO 5 on August 19th. CO 5 engaged with offenders, looked around and appears to be taking the tour seriously. Her tour was acceptable, whereas that performed by the Grievor was not. He also confirmed that there was no expectation that officers look in the shower when they can clearly see that it is occupied by a showering inmate. His evidence was further corroborated by Adam Wiltshire, a CO at CNCC called by the Union, who testified that inmates are entitled to privacy and respect for their modesty where possible. Therefore, officers are not expected to pull back the curtain on an inmate in the shower.
41With respect to the fighting that occurred on August 30th, Mr. Walker acknowledged that if these events were to come to his attention now, he might look into it further to determine why the fights went unnoticed.
Submissions
42The Employer maintained that discharge was appropriate in all of the circumstances of this case. The CSOI investigation substantiated the allegations that the Grievor failed to conduct a scan of the dayroom at lunch and failed to conduct a proper tour later in the afternoon. Moreover, the Grievor and the Union acknowledged that he engaged in misconduct that warranted discipline.
43In the Employer’s submission, the Grievor was not discharged simply because he missed a fight or an injured inmate, but because he was delinquent in the performance of his core duties. Correctional officers are in a position of trust and, as public servants, must conduct themselves in a professional and responsible manner. It argued that the Grievor in this case demonstrated a cavalier approach to the inmates in his care.
44The Grievor had a mid-range length of service, which the Employer argued was long enough to be fully familiar with all of the relevant policies and practices. He had been disciplined for similar conduct and, despite being reminded of the Employer’s expectations only 9 months previously, he admits that he became complacent and again failed to diligently perform his core duties. In light of the seriousness of the misconduct and the Grievor’s repeated neglect of his core duties, the Employer submits that there is no reason to believe that he will diligently execute his duties in the future.
45In the Employer’s submission, the Grievor’s apology does not sufficiently mitigate his failure to perform his duties. The Superintendent of the institution did not accept his apology, doubted his assurances that it would not happen again and was not prepared to take the risk that it would. Counsel submitted that the Board should be reluctant to interfere with the Superintendent’s conclusion that the Grievor was not fit to be a CO and that the employment relationship was irreparably broken.
46The Employer also characterised the contextual factors described by the Grievor, such as understaffing and coming off a lock-down, as excuses that undermined whether the Grievor truly took responsibility for his actions. The Employer took the position that although Mr. Miller said he was sorry he did not truly understand that his core responsibility was the care and custody of the inmates in his charge. In light of this lack of appreciation, the Employer asserts that the Grievor’s assurance that it won’t happen again rang hollow.
47The Employer further argued that the Grievor was not credible and attempted to mislead on a number of occasions. It was submitted that he tried to mislead the CSOI investigator and was evasive and argumentative at arbitration. Counsel argued that relying on counting the meal trays to explain his failure to scan the dayroom, was an example of the Grievor’s efforts to deflect and deceive. He ultimately admitted that the meal count was a quick eyeballing of the number of trays in the course of moving between wings, which, it was submitted, would not interfere with his ability to scan the day room.
48With respect to the allegation of differential treatment, counsel for the Employer maintains that the critical question is not whether others missed seeing a fight or an injured inmate, but whether they were delinquent in carrying out their duties and whether that is the reason they failed to see things that they should have seen. In the Employer’s submission, the Union has not met the necessary standard in any of the three comparator incidents.
49The Employer argued that the conduct of CO 3 and 4 was reviewed by the CSOI, who found that they were actively engaged in their duties and did not miss the fight as a result of any wrongdoing. Nor was the second incident similar, except for the presence of an injured inmate in the shower, which was only similar in an incidental and superficial way. Of greater significance is the quality of the tour conducted by CO 5, which the Employer maintained was performed attentively and is therefore not comparable to the conduct of the Grievor. The Grievor was expected to look in the shower area to see if anyone was in there, whereas there is no expectation that CO 5 would look in the shower where someone was visibly showering.
50In the final example, where individuals in the control module missed a series of fights, there is no evidence of who they were or what they were doing. All of the fights were brief and it was submitted that the Union had not met its onus of demonstrating that the fights were missed due to officer failure to properly execute their duties.
51The Employer relied on the following authorities: Brown and Beatty Canadian Labour Arbitration CH 7:4414; OPSEU (Horan) and Ministry of Public Safety and Security (2002), G.S.B. No. 0670/01 (Herlich); OPSEU (Gillis) and Ministry of Community Safety and Correctional Services (2008), 2008 CarswellOnt 6734 (Abramsky); Ministry of Community Safety and Correctional Services v. OPSEU (Bijowski) (2012), 2012 CarswellOnt 13494 (Dissanayake); O.N.A. v. Humber Regional Hospital (2007), 2007 CarswellOnt 7158 (MacDowell); Utilities Kingston and IBEW, Local 636 (Gamble) (2017), 2017 CarswellOnt 321 (Nyman); OPSEU (Langford) and Ministry of Community Safety and Correctional Services (2017), G.S.B. No. 2014-2613 (Stephens).
52The Union conceded that the Employer had just cause to discipline the Grievor with respect to both incidents, however, it submitted that it did not have cause to terminate his employment. While the Grievor had previously been suspended, he apologised and accepted responsibility for his conduct, indicating that there was room for progressive discipline.
53Union counsel argued that the Board should accept the Grievor’s apology and assurance that he will not engage in similar conduct in the future. The Grievor has 14 years of seniority and has wanted to pursue work in corrections since childhood. The Grievor has been forthright from the start and expressed genuine remorse; he immediately admitted his wrongdoing, accepted responsibility for his actions and recognised where he had erred.
54The Union submitted that the Grievor demonstrated insight into the nature of his misconduct, which further supports their position that he has rehabilitative potential. The Union disputed the Employer’s argument that the Grievor made excuses for his behaviour. The Grievor attempted to establish that termination was too harsh a penalty by offering mitigating circumstances and broader context as a backdrop to his actions; he was not trying to deflect personal responsibility.
55With respect to his prior discipline, the Union submitted that his previous ten-day suspension was not the equivalent of a last chance penalty. The Grievor had learned the importance of telling the truth and admitted his failings throughout the second investigation, disciplinary meeting and at arbitration. In counsel’s view, this again provides evidence of the Grievor’s rehabilitative potential.
56In the Union’s submission, the evidence of the Grievor should be preferred over that of the Superintendent of the institution. Mr. Miller was honest and straightforward, whereas Superintendent Walker’s testimony was self-serving and lacked credibility. Moreover, Mr. Walker made his decision to terminate the Grievor without even meeting with him in person. His testimony that he “didn’t buy” Mr. Miller’s written response to the allegations was unacceptably cavalier when discharging an employee with approximately 15 years of service. Finally, the Union submitted that Mr. Walker relied on information that he should not have considered and failed to look at all relevant factors.
57Although not offered to excuse the Grievor’s behaviour, there were mitigating circumstances that should be taken into account in assessing the appropriate penalty. In the Union’s submission, the Grievor was actively engaged in his duties when he missed the fight at lunch. He testified that delayed meal service can anger inmates, leading to fights and other problems. He also stated that they were busier than usual that day because they were short staffed and had just come off of a lock-down. Therefore, his failure to conduct a visual scan of the wing should be considered in light of his attempt to deliver meals in a timely manner.
58Lastly, the Union argued that the Employer treated the Grievor more harshly than it had other employees in comparable circumstances. The Union identified three examples of differential treatment, all of which were temporally proximate and took place at the same institution. Counsel argued that he did not have to establish identical circumstances or that there was just cause to discipline the other employees. Rather, he was only required to demonstrate that the comparator scenarios were “substantially similar”.
59The Union pointed to the absence of discipline for CO’s 3 and 4, the officers working in the control module when the Grievor missed the fight during his delivery of the lunch meal, as its first example of differential treatment. Counsel maintained that CO’s 3 and 4 were in a substantially similar position to the Grievor in that they were in a position to see the fight and they did not.
60One of the duties of the officers in the control module is to monitor the unit. In the submission of the Union, like the Grievor, CO 3 and 4 failed to observe the wing and missed the fight as a result. CO 3 had at least 25 seconds to see the fight after the Grievor had completed delivering the meals. CO 4, who relieved CO 3, had even longer to witness the fight. The fight continued off and on for several minutes, during which CO 4 can be seen on video looking around the module, eating a sandwich and sitting in front of an admin computer.
61Neither officer in the control module was disciplined, despite the fact that, from the Union’s perspective, they had a better vantage point from which to see what was happening and more time to see the fight than the Grievor, who was only at the window briefly. Counsel submitted that it would be unjustified to discharge the Grievor for missing the fight when CO 3 and 4, who also had obligations to observe the unit, had the opportunity to see it and did not.
62The Union also advanced the position that even if the control module officers were not in a similar position to the Grievor, they were contributors to the series of events that caused the fight to go undetected. Counsel maintained that arbitrators have recognised that where a grievor is not the sole cause of the incident he or she should not bear the full or sole brunt of the disciplinary sanctions.
63The next comparator incident that the Union relied upon occurred on August 30, 2016 when a number of inmates are captured on video sporadically fighting over the course of an hour and a half. Although there is no video of what the control module officers were doing, the Union submitted that they had a duty to observe the wings and monitor the inmates. Whatever other duties they may have been performing, they had ample opportunity to observe the ongoing fights. Even Superintendent Walker acknowledged that it was troubling that so many inmates were involved in so many altercations over such a prolonged period of time.
64Finally, the Union raised the lack of discipline for CO 5 when she failed to observe an injured inmate in the shower on August 19, 2016. In the Union’s submission, the video of CO 5 doing the tour on August 19th clearly shows shat she walked by the shower and, like the Grievor, failed to see an inmate with noticeable injuries. It was only when the inmate called out to her that CO 5 realised he was hurt. In its submission, this is an exact parallel of what happened with the Grievor: both officers walked by an inmate with obvious injuries, failed to see it, and did not act until an inmate brought it to staff’s attention. It was alleged that this is a prima facie instance of differential treatment.
65The Union further argued that the Grievor was not required to pull down the privacy curtain, walk between the tables or walk separately from his partner as suggested by some of the Employer witnesses.
66The Union relied on the following authorities: Brown and Beatty Canadian Labour Arbitration CH 7:4422 – Rehabilitative Potential and CH:7:4414 - Discrimination; Deere-Hitachi Specialty Products (2018), 290 L.A.C. (4th) 308 (McConchie); Hydro One Networks Inc. (2018), 294 L.A.C. (4th) 195 (Stout); Re Ontario (Maude) (2016), 269 L.A.C. (4th) 38 (Ont. GSB Petryshen); Re Ontario (Paplinskie) (2018), 290 L.A.C. (4th) 1 (Ont. GSB Watters); Redpath Sugar Ltd. (2019), 300 L.A.C. (4th) 51 (Gedalof); Empress Hotel (1992), 1992 CanLII 14503 (BC LA), 31 L.A.C. (4th) 402 (McEwen); Re Ontario (Hastie et al.) (2003), 2003 CanLII 89534 (ON GSB), 115 L.A.C. (4th) 120 (Ont. GSB Petryshen); Alberta (Solicitor General – Correctional Services Division) (2006), 2006 CanLII 93344 (AB GAA), 145 L.A.C. (4th) 382 (Joliffe, Ch.); Etobicoke General Hospital (1977), 1977 CanLII 2899 (ON LA), 15 L.A.C. (2d) 172 (Brandt).
67The Employer, in reply, submitted that while the principles of progressive discipline prevent an employer from subjecting an employee to harsher discipline than is required to correct their behaviour, an employee is not entitled to any specific step between a ten-day suspension and termination. The threshold question is whether it is likely or not that the employee will repeat the conduct.
68The Employer also challenged the Union’s suggestion that the Grievor has demonstrated rehabilitative potential. Although the Grievor learned to tell the truth following his ten-day suspension, that suspension was also imposed as a result of his failure to conduct a proper tour and he demonstrated that he had not learned any lessons in that regard.
69Counsel for the Employer further argued that it is inaccurate and unfair to conclude that Mr. Walker made his decision without taking into account the Grievor’s admissions or apology. He acknowledged that he did not listen to the audio of the interview and did not recall whether he read the transcript, however, he did review the full CSOI Report, which contains a summary of the interview.
70With respect to the comparator incidents and the Union’s argument of differential treatment, counsel for the Employer maintained that in a case such as this where there is an admission of misconduct, justifying some disciplinary penalty, there must be evidence that the other officers to whom the culpable employee is compared have also engaged in culpable behaviour.
Analysis
71The only issue before me is whether discharge was excessive in this case. The Grievor admitted that he did not scan the dayroom or inspect the shower stall when conducting his tour. The Union conceded that this amounted to misconduct for which he should be disciplined. The parties also agreed that the Grievor had been previously suspended for ten days for similar misconduct.
72The Union took the position that a lesser penalty would achieve the goal of corrective action. Counsel suggested that the Grievor provided evidence of his rehabilitative potential through his admission, apology and insight into his wrongdoing. Therefore, in accordance with the principles of progressive discipline, he should be given a further chance to demonstrate that he can and will do his job conscientiously in the future.
73The Employer believed that the Grievor’s admission, apology and promise of improvement lacked sincerity and genuine insight into his conduct. It took the view that the Grievor tried to deflect from his accountability by offering excuses as context for his behaviour. Ultimately, having disciplined the Grievor for similar conduct less than a year earlier, the Employer said that it had no confidence that the Grievor would diligently execute his duties in the future.
74Before assessing the issue of penalty, it is important to address the nature and extent of the Grievor’s misconduct. The Grievor admitted that he did not look into the dayroom before signalling to the officers in the control module that they could unlock the door. He testified that they were short staffed, very busy and that the unit had just come off a lock-down, which created more work and tension. He knew that he was supposed to observe what was happening inside the dayroom but explained that he was probably counting meal trays and focused on delivering the meals quickly.
75When he neglected to look into the room, the Grievor missed seeing an inmate fight in progress. The fight escalated over the next few hours and an inmate was badly hurt. Had he looked when he was supposed to, the fight would have been stopped long before it reached the point where an inmate needed medical attention.
76The Grievor also placed the inmates, his partner and himself in jeopardy when he opened the door without exercising the required degree of caution. No matter how busy he was, common sense alone dictates that he must ensure that it is safe to enter a room occupied by inmates before unlocking the door. His rationalizations, that he was counting meals and pressed for time are not convincing explanations. The objective evidence from the video surveillance does not support his contention that staff was rushing to deliver the meals or that his opportunity to look inside was impeded by the few seconds it took to count the meal trays.
77Later in the day, the video of the afternoon inspection tour shows the Grievor and his partner doing the most perfunctory job possible: they did not look around, engage with inmates or check any of the known risk areas. As a consequence, they did not see an injured inmate seated on a bench in the shower stall. The Grievor and his partner spoke only to each other, faced one another and had virtually no outward engagement. They paused to hit the two Diester buttons at either end of the wall, indicating that they physically passed by, but that was virtually all they did. It was as if they were out for a leisurely stroll, with no greater responsibility than making sure they pushed the electronic buttons.
78In my view, the Grievor’s neglect was all the more troubling because he was aware that the inmates had just come off lock-down and were, in his own words, stressed and more likely to engage in anti-social behaviour, such as fights. There were other red flags that should have caught his attention. He testified that inmates typically cluster around the door and windows waiting for their meals. However, the video at noon shows only a few inmates present at the front of the dayroom and several inmates towards the back, watching the fight in progress. Later, during the afternoon tour, an inmate was sprawled across the half wall in front of the shower area in an apparent attempt to block the view. While there could have been innocent explanations for both scenarios, the Grievor should have been alert to the fact that something might be amiss and that he needed to investigate further.
79I agree with the Employer’s characterisation that what is material in this instance is not just that the Grievor missed seeing a fight and an injured inmate later in the day, but that he failed to observe these two critical incidents because he was derelict in the performance of his core duties. Mr. Miller’s misconduct on July 25th was not just a momentary lapse of attention or singular error in judgement; there was a pattern throughout the day where he demonstrated a woeful disregard for carrying out his core duties with the care and attention that they demand. An inmate was badly injured and I regard his failures on this day as very serious. This is the lens through which the appropriate penalty must be assessed.
80The Union relied heavily on the Grievor’s admission and apology. Honesty, remorse and genuine insight into what happened, with an assurance that it won’t happen again are important factors to consider in assessing whether an employee’s discharge should be upheld. It is not sufficient, however, to merely say you’re sorry and should have done better. An employee’s remorse must be weighed in light of all of the other evidence to see if it is a true indication that they understand what they did was wrong and appreciate the corrective steps that are needed to prevent repeating the behaviour in the future.
81The Grievor in this case admitted his misconduct, repeatedly apologised and said that it won’t happen again. Despite his apology and promises, I am not satisfied that he fully accepts responsibility for his actions, appreciates the gravity of his conduct or demonstrated rehabilitative potential.
82I do accept that the Grievor was genuinely sorry that an inmate was injured, but I agree with the Employer that the Grievor repeatedly tried to deflect or minimise his own responsibility by offering excuses. While it is human nature to try to explain why we make mistakes and counsel’s job to ensure that all of the circumstances that might mitigate the Grievor’s actions are laid out for consideration, Mr. Miller’s justifications fell well short of a reasonable basis to mitigate his misconduct.
83For example, he initially said that he was counting meals and that contributed to his failure to look into the dayroom at lunch. On cross-examination, it became clear he counted the trays by eyeballing the total and that this would not have taken longer than a few seconds. Similarly, he said that they were short-staffed and racing around at lunch. The video does confirm that all of the meals were delivered in a relatively short period, however, the officers can be seen before the meal delivery engaged in a fairly leisurely set up of the carts. Nothing suggests that they were rushed or struggling to keep up. His explanations ultimately lead me to doubt whether he actually accepted responsibility for his conduct.
84The Grievor’s testimony, also revealed a troubling lack of insight into the true depth of his shortcomings. When he was questioned about his employer’s response, he stated that he really didn’t understand why he was discharged and that it was ‘ridiculous’ to terminate his employment. From his perspective, he simply ‘made a mistake’ that was ‘not malicious or intentional’ and that there is always ‘room to improve’. His testimony overall conveyed the unavoidable impression that he considered his conduct as minor, isolated errors, with no appreciation of their fundamental relationship to the performance of his core duties.
85Correctional facilities are difficult environments for those who are incarcerated and the staff that are charged with responsibility for ensuring their care and custody. Regrettably, the inmate on inmate altercation that relates to the Grievor’s termination is all too common. In Langford et al. supra, a tragic case involving an inmate death, Arbitrator Stephens noted that the “core duty of correctional officers, the duty around which all other tasks are focussed, is to protect the health and safety of inmates.”2 He further observed:
It cannot be that a security tour is merely an opportunity for a CO to show up in the unit and do a quick, pro-forma “walkthrough” to accomplish a series of Deister taps. The purpose is for the CO to do a circuit of the unit and engage in a meaningful investigation of the area, …, to determine to the extent possible that the people in the unit are secure and safe. A CO does not need a policy to establish this purpose – it is self-evident.
As with any task performed by an employee, there is a range of thoroughness and attention that the employee can apply in carrying out the task. When it comes to the task of ensuring the safety of other human beings held in state institutions, it is my view that the people of Ontario have the right to expect a high degree of attention from Correctional Officers. The individuals under their care are almost entirely dependant upon the CO’s for their safety, and the duties of a CO must be performed with this central fact in mind. As the tragedy of the current case demonstrates, the risk to individuals in the institution can be sudden, violent and life-threatening. In addition, and to the same extent, preserving the security of the institution is important to the health and safety of the people who work there.”3
86While it is imperative that employers adhere to the principles of progressive discipline, it does not mean that employees are entitled to unlimited chances to demonstrate that they will do their job properly. The Grievor in this case had already been given a further opportunity to exercise diligence in the performance of his duties. Less than a year prior to these incidents he had received a significant suspension for, among other things, failing to conduct an electronic security tour and falsifying a logbook entry falsifying his log entries. The Grievor was honest about his misconduct the second time around, but, by his own actions, on at least two occasions on the same day, he demonstrated that he could still not be trusted to do his job thoroughly and attentively.
87The Union argued that it was open to the Employer to impose a twenty-day suspension rather than discharge the Grievor. While a lesser penalty was technically available to the Employer, that possibility does not insulate an employee from termination where the misconduct warrants it. The purpose of progressive discipline is to afford the employee an opportunity to learn from their mistakes and improve in the future. If, however, there is a reasonable basis to conclude that the employee is likely to engage in similar conduct and the conduct is serious in nature, then termination will be appropriate.
88Counsel for the Employer and the Union both made submissions regarding the relative credibility of Mr. Miller and Mr. Walker. In arriving at my conclusions, I have not found it necessary to make any general determinations about credibility. Virtually none of the evidence with respect to what happened on the day in question was in dispute and much of it was captured on video surveillance. I have considered Mr. Miller’s testimony at face value and have accepted Mr. Walker’s opinions as an honest expression of why he believed that Mr. Miller should be discharged. In the end, however, I have weighed all of the evidence and arrived at my own conclusions regarding Mr. Miller’s apology and the likelihood that he would engage in repeated misconduct if he was permitted to return to work.
89The Grievor repeatedly said that he knew the proper protocol and that he should have been more observant. He had been given a significant suspension only several months before, but still “became complacent and fell into a rut” within the year. While he acknowledged that he made a mistake, I am not convinced that he actually thought that what he did was all that serious or had any insight into what he could do to prevent it from happening again. In the end, I am not confident that the Grievor will be diligent in the future.
90To be clear, employees should not be held to a standard of perfection; however, an employer is entitled to expect that they will generally be conscientious. This is even more crucial in the context of a correctional facility. The employer must have confidence that a Correctional Officer will be vigilant in the exercise of their core duty to protect the safety and security of inmates in their care.
91The Union also argued that discharge amounts to differential treatment. It maintained that other Correctional Officers, in substantially similar circumstances, have not been disciplined for comparable conduct and therefore it was an excessive and discriminatory response to dismiss the Grievor.
92The parties agreed that the relevant caselaw on differential treatment is succinctly summarised in Brown and Beatty as follows:
The principle of equal treatment is typically violated where it is shown either that the material facts of an employee’s case substantially conform to the circumstances of others who were treated less severely or that the employee’s behaviour was less culpable than someone else who received the same or a milder sanction. Where it is found that the penalty imposed on a person was based on materially different circumstances than in other cases, an allegation of discriminatory conduct will fail.4
93Having reviewed the evidence of the comparator incidents relied upon by the Union, I am not persuaded that they are substantially similar to the circumstances of the Grievor. There is no dispute that the Grievor in this case engaged in culpable conduct: he admits that he missed the fight and the injured inmate in the shower stall, which I have found was as a consequence of failing to properly discharge his core duties. Therefore, in order to find that there has been differential treatment, I must be satisfied that the other CO’s who were not disciplined were similarly derelict in performing their duties.
94The first incident that the Union identified as comparable was the accountability of the CO’s in the control module at lunch when the fight began and the lunch cart was delivered. The Union said that CO’s 3 and 4 were in a position to see the fight at the same time that the Grievor could have witnessed it and that the Grievor was similarly engaged in other duties when he failed to scan the room.
95CO 3 and 4 were on duty when the altercation occurred and I accept that they could have witnessed the fight if they had checked the monitor at the right time. However, CO’s in the control room have a number of responsibilities, only one of which is monitoring individual wings. It is understood that they cannot monitor all of the wings at the same time. While it is undoubtedly regrettable that CO 3 and 4 did not witness the fight July 25th, that fact alone, without further evidence that they were disregarding their duties, does not make their conduct comparable to that of the Grievor.
96After reviewing the video and considering the evidence as a whole, I am not convinced that either CO 3 or 4 failed to discharge their duties. CO 3 was only present for a very brief period while the fight was taking place and appears to be actively watching the officers delivering meals and the various monitors. While CO 4 does engage in some personal behaviour, such as removing his belt and eating a sandwich, he nonetheless actively looks around the Unit and checks the various monitors at the same time.
97The Grievor was not disciplined merely for not seeing the fight, but rather for ignoring an explicit duty to scan the room where the fight was occurring at the precise time when the fight was taking place. This, in my view is a key difference between his actions and that of CO 3 and 4. He was charged with a specific responsibility, at a specific time, which he failed to perform, whereas CO 3 and 4 had several duties, many of which did not overlap or include monitoring the wings.
98The Union also argued that, since no other staff at the institution observed and intervened to stop the fight, it would be unfair to lay blame solely on the Grievor and his partner. While the institution must take responsibility for what happens to inmates, there is no evidence before me that anyone else contributed to this incident in any identifiable way. I have already determined that the officers in the control module at lunch did not miss the fight because of inadequate performance of their jobs and the Union has not pinpointed anyone else they say should have seen the fight. In any event, this argument would be more persuasive if the lunch time occurrence was the only incident of alleged misconduct. But it is not. The Grievor engaged in further misconduct later in the day and the imposition of discipline must be assessed in light of both of these transgressions.
99Nor is there any evidence that CO’s in the control module on August 30th missed the ongoing fights because they were negligent in the performance of their duties. In fact, there was no evidence whatsoever to reveal what these CO’s were doing or why they missed the fighting. Although it is troubling that a number of fights, some of which went on for as long as two minutes, were not observed by the correctional officers in the control module, they did not testify and there is no video or witness account of what they were doing at the relevant time.
100All that is known is that fights were captured on video and therefore should have been visible in the control module if the CO’s were monitoring that screen at the time the fight took place. At best, the Union’s argument is that the CO’s missed the opportunity to observe the fight. I do not think this is a similar situation to that of the Grievor. He did not just miss a hypothetical opportunity to observe what happened, by his own admission, he failed to properly execute his duties and as a direct result, missed the fight and injured inmate.
101Nor do I think that the tour conducted by CO 5 is comparable. The video record depicts her actively conducting her tour: she walked through the dayroom, looked around, conversed and interacted with inmates. While she did not look behind the privacy curtain, an inmate was clearly visible and appeared to be taking a shower when she approached the area. The evidence was clear and uncontroverted that in these circumstances she was not expected, nor would it be respectful, for her to pull the curtain to peer directly inside.
102The Union’s submission that blood would have been visible on the floor when CO 5 did her tour is highly speculative, as is the suggestion that she could have seen the inmate’s injuries as she did her rounds. The presence of blood on the floor when CO 5 and 6 approached the shower does not tend to establish that it would have been visible earlier, when the inmate was showering. It is equally likely that blood from the inmate’s injuries would have been washed down the drain and only accumulated when the shower was turned off. It also strikes me as quite unlikely that CO 5 could have seen the injuries as she passed by, given their extent and location. The injuries were largely on the inmate’s lower body, which would not be readily apparent. Nor would the head injury necessarily be visible, depending on the angle the inmate was facing and whether the laceration was masked by hair.
103Unlike CO 5, who walked by an inmate clearly detectible in the shower, no one appeared to be showering when the Grievor and his partner walked by. In my view, this is a material difference that distinguishes his conduct from that of CO 5. The Union and Grievor agreed that he should have examined the shower area and would have seen the injured inmate had he done so. The Grievor was not respecting an inmate’s privacy nor is it alleged he only missed seeing signs of injury. His failure to discover an inmate that required medical attention was incidental to carelessness and neglect.
104I do agree with the Union’s submission that there was no clearly stated policy or expectation that correctional officers pull down the privacy curtain, walk between the tables or walk separately from their partner when conducting a tour. Therefore, it would be unreasonable to discipline the Grievor solely on that basis.
105Nonetheless, there was a marked difference in the manner that the two tours were completed. The Grievor appeared virtually oblivious to his surroundings. He didn’t look around the room, speak to any of the inmates or acknowledge their presence; he was fully consumed in conversation with his partner. It is not just that he walked with his partner or didn’t go between the tables, it is the overall manner in which he conducted the tour and his utter failure to pay attention to his surroundings.
106After considering all of the evidence, I am not persuaded that the Employer engaged in differential treatment of the Grievor. His misconduct was extremely serious and involved a significant injury to an inmate in his care and custody. He had previously been disciplined for similar behaviour, which he repeated within several months. After weighing the aggravating and mitigating factors in this case I have concluded that there is no basis to exercise my discretion to substitute a lesser penalty.
107The grievance is dismissed and the discharge of the Grievor is upheld.
Dated at Toronto, Ontario, this 7th day of November 2019.