GSB# 2019-0614; 2019-0615; 2019-0638

UNION# 2019-0368-0142; 2019-0368-0143; 2019-0368-0145

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fitzgerald et al)

Union

• and -

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

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

DECISION

FACTS/BACKGROUND:

1I am seized with the dismissal of three Correctional Officers from Central East Correctional Centre (“CECC”).

2At the time of dismissal Mr. Travis Grills had just over 20 years of service; Mr. Matt Noel just over 15 years; and Mr. Blair Fitzgerald just over 19 years.

3The Grievors were all working on shift at CECC on 4 pod on November 26, 2018. As a result of an investigation, evidence revealed a gross dereliction of duty on all of their parts. That dereliction of duty included numerous failures to complete watch tours, attempts to cover up that failure through the manipulation of the OPMAN system and failure to complete accurate inmate counts.

FINDINGS:

4I am persuaded regarding the seriousness and risks of a dereliction of this nature. The case law of this Board has been clear regarding the vital importance of the care, custody and control of inmates. When inmates are admitted to a correctional facility they lose their ability to care and protect themselves. It is the Correctional staff that must provide that care and protection and to not do so creates many risks to the inmates, to other staff and to the institution.

5I find the Grievors conduct in this instance could be just cause for dismissal.

6However, I am persuaded that all of the Grievors are apologetic, regretful and truly sorry for their conduct. They have taken full responsibility for their actions or lack thereof. This leads me to believe they are rehabilitatable.

7In light of this remorse, as well as the Grievors’ significant years of discipline free service, I find that in this instance, reinstatement is a more appropriate remedy than dismissal.

8However, it is important the Grievors appreciate the seriousness of their conduct. For this reason, I do not find it appropriate to reinstate them with back wages.

DISPOSITION:

9Accordingly, for all the reasons set out above, I hereby rescind the Grievors’ May 30, 2019 dismissal, and for the purpose of their employment records, replace it with a 20 day suspension without pay.

10The Grievors are reinstated as of June 1, 2020, with no back wages payable by the Employer for any time between their May 30, 2019 dismissal and their reinstatement.