GSB# 2018-1465

UNION# 2018-0368-0178

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hamilton)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Laura McCready Treasury Board Secretariat Employee Relations Advisor

HEARING

February 26, 2019

DECISION

1The Employer and the Union at the Central East Correctional Centre agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons.

2William Troy Hamilton is a Correctional Officer (“CO”) 2 at the Central East Correctional Centre (“CECC”) in Lindsay, Ontario. His grievance, dated June 28, 2018, alleges that the Employer violated the collective agreement when it suspended him without pay for 16 hours on June 21 and June 22, 2018. He seeks full redress, to be made whole, and to be paid the average amount of overtime lost while he was on suspension.

3The Employer issued to the Grievor a letter of discipline dated June 20, 2018 suspending him for two days. The discipline arose out of an incident on May 25, 2018 in which the Employer alleged that the Grievor behaved in an aggressive, inappropriate and unprofessional manner towards Sergeant Akinbolade; that he had been insubordinate to the Sergeant; and had engaged in intimidating behaviour while walking away from the Sergeant’s office. Sergeant Akinbolade was relatively new to the CECC at the time of the incident.

4It would appear from Sergeant Akinbolade’s Occurrence Report that on May 25, 2018 he was asked by Staff Sergeant Dewit to remove all log books in the 2 pod and 2 segregation areas. When he went to do so from 2 pod, he was asked by staff why he was removing the log book, and indicated he had been instructed to do so. It is unclear whether the Grievor would have heard that, but in any event, the Grievor’s Occurrence Report of May 25, 2018 indicates that he questioned Sergeant Akinbolade’s taking the log book, and stated “Don’t turn your back to me, I asked you what the f—k is going on”. The Sergeant’s Occurrence Report states that the Grievor said “You better tell us why you are f-----g taking the log book”.

5According to the Sergeant’s Occurrence Report, he turned around and told the Grievor not to swear at him when he was addressing Sergeant Akinbolade, but that the Grievor kept walking towards him and using the “F word”. The Sergeant again told him to stop swearing, to which the Grievor is alleged to have stated “This is a f-----g jail; this is not the youth system, if you don’t like it then leave. This is how we talk here”. The Grievor’s Occurrence Report is consistent with the Sergeant’s recollection in that he states that the Sergeant said to him “Don’t swear at me when you are talking to me”, however it differs in that the Grievor says he told the Sergeant “I wasn’t swearing at him, it was just part of the sentence and my reaction to him turning his back on me”.

6There is no dispute that Sergeant Akinbolade asked the Grievor to come to the manager’s office, and the Grievor at first refused to do so. However, the Grievor did ultimately follow Sergeant Akinbolade to the office. The Sergeant’s Occurrence Report indicates that the Grievor at that point said “Let’s go to your f-----g office”. There is some dispute about what was said when they got to the office, but there is no dispute that Sergeant Akinbolade asked the Grievor to write up a report of the incident, and that the Grievor verbally refused to do so. The Sergeant’s Occurrence Report indicates the Grievor said “I am not writing shit, if you want to write me up, go ahead”. The Grievor’s Occurrence Report says “I told him that I wasn’t doing that, and if he wants to write me up, feel free to do it”.

7According to Sergeant Akinbolade’s Occurrence Report, as the Grievor was walking away, he heard the Grievor saying “You think I am mad right now, you haven’t seen anything”.

8At the Employer’s investigation meeting with the Grievor and the Union, the Grievor admitted that he had used profanity, but maintained that it was not directed at the Sergeant. He also admitted that he had refused Sergeant Akinbolade’s direction to write a report until Staff Sergeant Ilika requested that he do so. The Grievor also admitted that he made the comment when he was leaving Sergeant Akinbolade’s office, but he maintained that it was not directed at the manager, and was not intimidating. The Grievor has apparently not shown any remorse for his language that day.

9At the time of the May 2018 incident, the Grievor had no discipline on his record.

10Having considered carefully the documents before me, and the submissions of the parties, I am of the view that in all of the circumstances, the Grievor behaved in an aggressive, inappropriate and unprofessional manner in the way in which he spoke to Sergeant Akinbolade. I also find that he was insubordinate in that he refused to stop using profane language when Sergeant Akinbolade asked him to do so, and when he refused to write a report when directed by Sergeant Akinbolade to do so.

11However in consideration of the fact that at the time of the incident the Grievor had no discipline on his record, and did not directly swear at management, the disciplinary penalty is reduced to a one day unpaid suspension. The Employer is

directed to compensate the Grievor fully for the one day, eight hour shift. The Grievor’s other remedies are denied as there is no basis to award them in this instance.