GSB# 2017-2255

UNION#2017-0467-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cassidy)

Union

• and -

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

Employer

BEFORE

Brian Sheehan

Arbitrator

FOR THE UNION

Jane Letton (Counsel) Ryder Wright Blair & Holmes LLP

FOR THE EMPLOYER

George Parris (Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

June 18, 2019; June 22, 25; July 6,15 and 24; August 10 11, 21 and 27, 2020 (by videoconference)

Decision

1This Award concerns a grievance filed by Lance Cassidy (the “grievor”) challenging the Employer’s decision to terminate his employment as of October 24, 2017.

Overview of the Factual Background

2The grievor was employed as a Correctional Officer (CO) at the Quinte Detention Centre (QDC). He had been employed as a CO at QDC for more than 25 years.

3At the time of his termination, the grievor had a 15-day suspension on his record for an incident in 2015 which involved the grievor engaging in an inappropriate and unnecessary physical action against an inmate, and for displaying unprofessional bullying and provoking conduct against an inmate.

4The termination of the grievor related to his interaction with WN, who was at the time, an inmate at QDC. In particular, the October 24, 2017 termination letter issued to the grievor outlined two reasons for the termination: (1) the grievor “displayed unprofessional bullying, provoking conduct, exhibited unnecessary conduct, and used excessive force on an inmate; and (2) the grievor “failed to submit an Occurrence Report after being involved in an incident with an inmate”.

5There is little in dispute regarding the background events associated with the incident giving rise to the grievor’s termination. The grievor was working a 6:30 p.m. to 6:30 a.m. evening shift in the Maximum 1B unit on the evening of May 9, 2017. There had been a “Level 2” search of the cells on that unit during the day shift. As a result of that search, not all the inmates in the unit had received showers as scheduled. WN was one of those inmates who had not yet received a shower.

6It was the evidence of WN that shortly after the commencement of the grievor’s shift he called out to the grievor advising that he had not yet received a shower. According to WN, the grievor responded that “he doesn’t give a fuck” and accused WN of banging on his cell walls and yelling.

7The grievor retrieved the shower key and opened the cell where WN was located. Upon leaving his cell, WN went to an adjacent cell and obtained a bottle of liquid soap from a fellow inmate. It was WN’s evidence that the grievor then aggressively yanked the bottle of liquid soap from his hands stating that WN did not deserve it.

8WN then proceeded to the shower area with the grievor following. It was WN’s evidence that upon him entering the shower stall, the grievor “belly bumped” him; such that, he was briefly pinned up against the end wall of the shower. WN claimed the grievor proceeded to declare “you’re lucky it wasn’t back in the day—it would be a bloodbath between us right now”. According to WN’s narrative of the events, upon asking the grievor for soap, the grievor told him he could “fuck himself” and that if he “didn’t like it, he could go to Home Depot”. WN claimed that during this interchange, the grievor’s spit came into contact with his face, but WN was not sure that the grievor had intentionally spat at him.

9WN testified in the proceeding pursuant to a summons served upon him by the Employer.

10The grievor’s version as to his interaction with WN on the evening in question was dramatically different. The grievor claimed he could not recall the initial interchange between himself and WN regarding WN’s request to take a shower. It was his evidence after WN had obtained the liquid soap (which the grievor thought was shampoo) from the inmate in the adjacent cell he advised WN that he could not have it as there were institutional sundries. He acknowledged that he then took the liquid soap from WN but disputed that he did so in an overly aggressive manner and he denied telling WN that he did not deserve the soap.

11The grievor acknowledged that he followed WN into the shower area. He claimed he did so, in fact, to see if there was any shampoo in the shower for WN, and upon checking, he observed there was shampoo but no soap. There is no dispute on the evidence that upon leaving the shower area, the grievor returned the liquid soap to the inmate that had given it to WN, and then immediately retrieved a bar of soap and provided it to WN upon his return.

12The grievor denied WN’s evidence pertaining to the nature of their verbal interchange while he was in the shower stall with WN. It was the grievor’s evidence that in reference to the grievor not allowing WN to have the liquid soap, WN asked, “what is the big fucking deal Cassidy?” The grievor claimed he responded “the big deal” was that the unit had just been searched for contraband and the grievor would be in trouble if, in fact, the item WN had obtained from the inmate in the adjacent cell was contraband.

13At the hearing, the grievor denied that he came into physical contact with WN, in any way, while they