GSB# 2022-9202

UNION# 2022-5112-0396

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kourakine)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Shivani Ramoutar Treasury Board Secretariat Employee Relations Advisor

HEARING

November 8, 2022

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, as such, it is without prejudice or precedent.

2Nikita Kourakine (the “grievor”) is employed as a Correctional Officer 2 at the Toronto South Detention Centre.

3On Wednesday, May 25, 2022, the grievor was assigned to Segregation Unit C at the Toronto South Detention Centre with two other Correctional Officers. At that time, there was only one inmate in the segregation unit.

4Upon examining the inmate’s cell, the grievor noticed there were feces on the floor as well as in a cup by the sink. The grievor indicated that he had been advised by other staff that the inmate was non-responsive when spoken to.

5The grievor reviewed the inmate’s Offender Tracking Information System (OTIS), which documented that the inmate had in the past assaulted a Peace Officer, had committed several other assaults on staff, and had a history of mental health issues. The grievor additionally claimed that a review of OTIS revealed that in the past, the Institutional Crisis Intervention Team (ICIT) had been employed at other institutions with respect to certain transfers involving the inmate.

6Pursuant to an examination undertaken that day by a staff psychiatrist, the inmate was to be transferred to the Centre for Addiction and Mental Health (CAMH) for further assessment.

7At approximately 1 PM that day, Staff Sergeant Paul arrived on the scene with two escort Officers. Staff Sergeant Paul advised the grievor and the other Correctional Officers present that the inmate was to be transported to Admitting and Discharge.

8According to the grievor, Staff Sergeant Paul asked the grievor and the other Correctional Officers to open the cell hatch to see if the inmate would comply with being handcuffed and transferred to Admitting and Discharge. The grievor advised Staff Sergeant Paul that he was of the view that it was not appropriate to open the hatch given the inmate’s history of assaultive behaviour and the presence of a cup of feces, as well as the fact the inmate had been non-compliant with staff that day. In response, Staff Sergeant Paul asked the grievor to hand over the keys as he would open the hatch himself. The grievor refused to turn over the keys advising Staff Sergeant Paul that if the inmate assaulted him, the correctional staff in the vicinity would be required to respond.

9The grievor further advised Staff Sergeant Paul that he viewed the matter as a health and safety issue and that he would be contacting a Union Health and Safety Representative.

10Sergeant Hamza Bazger then appeared on the scene and ordered the grievor to give him the keys to the cell. The grievor again refused, claiming that he sought to initiate a “work refusal” under the Occupational Health and Safety Act. The grievor was then directed to leave Segregation Unit C and go to an adjoining hallway. The grievor did not comply with that directive as he indicated that he wanted to remain on the scene until the Union’s Health and Safety Representative arrived.

11On July 7, 2022, the Employer issued the grievor a Written Reprimand based on a finding of the substantiation of the cited allegations of not complying with: (1) “two direct orders to provide unit keys to a Sergeant and Staff Sergeant”; and (2) “two direct orders to leave SEG C and remain in the hallway.” The July 7, 2022, notice of Written Reprimand suggests that at the July 4, 2022, “allegations meeting", the grievor acknowledged that he should have handed over the unit keys as directed, and he apologized for not doing so.

12Upon reviewing the relevant facts and the submissions of the parties, it is my determination that the Written Reprimand issued to the grievor was appropriate in the circumstances and should be upheld.

13The grievor’s actions constituted a classic case of insubordination, as he failed to comply with direct orders given to him by his superiors. It is recognized that the jurisprudence recognizes an exception to the insubordination rule in a scenario involving the health and safety of the worker. The rationale for the grievor’s concern about his health and safety and those of his coworkers is acknowledged and accepted as sincere in nature. Those points noted, the facts suggest that the grievor’s refusal to comply with the direct orders given do not fit within the narrow confines of the health and safety exception to the insubordination rule. In this regard, consideration must be given to the inherent potential risks associated with the duties performed by a Correctional Officer. Moreover, in the case at hand, I am not persuaded that the grievor was under an imminent threat of being assaulted by the inmate involved. Subsequent to being ordered to open the cell hatch and then refusing, he was ordered to only hand over the keys to Staff Sergeant Paul so he could undertake the task of interacting with the inmate, thereby limiting the grievor's direct exposure. Moreover, the health and safety exception had little relevance concerning the grievor’s subsequent refusal to leave Segregation Unit C and go to an adjoining hallway as directed. It has also been determined that the grievor’s reliance on the “work refusal” provisions of the Occupational Health & Safety Act was not applicable due to Section 43(2)(c) of the Act.

14In conclusion, the grievance is, hereby, dismissed.