GSB#2018-3583

UNION#2019-5112-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Paul)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Laura McDonald Ministry of Treasury Board Secretariat Employee Relations Advisor

HEARING

October 24, 2019

Decision

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

2The grievor is a Correctional Officer employed at the Toronto South Detention Centre.

3The grievor was issued a Letter of Reprimand dated January 10, 2019 with respect to an incident that occurred on January 15, 2018. The cited reasons for the Letter of Reprimand involved two allegations pertaining to the same incident. The primary allegation is that the grievor failed to complete a Use of Force Incident Report “accurately and in a fulsome manner” pertaining to an incident involving a co-worker, Correctional Officer Lourenco (CO Lourenco). It was additionally alleged that the grievor failed to maintain proper “key control” during the incident.

4The incident in question began with an inmate verbally accosting and spitting on CO Lourenco outside the inmate’s cell. Subsequent to CO Lourenco following the inmate back into his cell, the inmate started striking CO Lourenco. In response, CO Lourenco countered with a use of force. The altercation then spilled out into the hallway with the grievor assisting CO Lourenco in trying to gain control of the inmate. In the course of this assistance, the grievor had her OC spray at the ready in one hand, while her keys were in the other hand.

5CO Lourenco was disciplined by the Employer pursuant to the Employer’s view that his actions constituted an inappropriate use of force.

6The grievor was adamant that she completed the Use of Force Incident Report in accord with her recollection of the events, and that she did not purposely fail to disclose all the details of CO Lourenco’s use of force.

7The Use of Force Incident Report completed by the grievor outlined in some detail the events associated with the incident. That being said, a review of the video of the incident suggests that the grievor, notwithstanding having a fairly unobstructed view of the incident, did not fully capture the nature of the interaction between CO Lourenco and the inmate. In particular, the grievor in her report failed to mention CO Lourenco physically responding to the aggression of the inmate.

8The video of the incident also confirms that the grievor’s keys were not secure in her pocket while she was assisting in the efforts to control the inmate.

9Upon reviewing all of the relevant facts, it is my view that the imposition of the Letter of Reprimand was a reasonable response by the Employer and should not be overturned. In coming to that conclusion, it is noted that a Letter of Reprimand constitutes the lowest disciplinary sanction that this Employer will issue. Accordingly, any finding of misconduct by an employee will generally provide a sufficient basis to uphold a Letter of Reprimand. In the case at hand, there is no need to find that the grievor’s actions in not completing an accurate Use of Force Incident Report was intentional to conclude that the grievor failed to complete an “accurate and fulsome” report, as she neglected to capture certain key details of the incident. Additionally, the video confirmed that the grievor did not maintain control over her keys in a manner in keeping with the Employer policy regarding proper “key control” by a Correctional Officer.

10In light of the findings reached, the grievance is, hereby, dismissed.