GSB# 2021-4289

UNION# 2022-5112-0038

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Adapon)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caitlyn Borth Treasury Board Secretariat Employee Relations Advisor

HEARING

April 21, 2022

Decision

1The Employer and the Union at the Toronto South Detention (“TSDC”) 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 detailed written reasons.

2Kevin Adapon is a Correctional Officer (“CO”) at the TSDC. On February 9, 2022 Mr. Adapon filed a grievance claiming that the Employer had issued him a Letter of Reprimand without just cause as he had been following the direction of a manager. By way of remedy, the grievor seeks “full redress”, which in this instance is the removal of the Letter of Reprimand from his record.

3The issue as regards the grievor arose out of a Use of Force incident on an inmate that occurred on September 26, 2020 during the night shift, between 2306 and 2310 hours (11:06 to 11:10 p.m.). The Correctional Services Oversight and Investigations unit (the “CSOI”) investigated and issued its report on February 8, 2021.

4According to the CSOI report, an inmate had been involved in a use of force incident earlier on September 26, 2020 at around 4:20 p.m., as a result of which the inmate had been taken to hospital via ambulance accompanied by two COs as an escort. The grievor was not one of the escorts. The inmate was discharged from the hospital and brought back to the TSDC at around 10:15 p.m.

5While being escorted to Segregation A unit, the inmate became physically and verbally uncooperative and/or resistant, and the two COs who had escorted him, as well as Sgt. Tyler McCormick, who was with them, had to use some force to gain the inmate’s compliance and to get him into his cell in the segregation unit.

6The grievor was working in Segregation A unit on the night in question, and in the CSOI report is noted as having “maintained officer presence” while the inmate was being taken within the segregation unit to cell 8. He was also noted as having held the inmate’s legs when they were trying to get him settled in cell 8. As such, the grievor was considered a participant in the Use of Force incident that took place inside cell 8.

7Sgt. McCormick required CO Bridgman and CO Adapon to be present when the sergeant took digital images of any visible injuries on the inmate, although the inmate did not report any injuries having occurred in the use of force incident. The sergeant told the CSOI that he had not considered having any other staff there.

8According to the grievor, he hadn’t known about the policy of having only those who had not been involved present for the taking of digital images of an inmate’s injuries, but in any case, it was a night shift, and they were short staffed, so it would not have been feasible to have got others. As well, the grievor indicated, and there is no dispute, that the sergeant had told Mr. Adapon to be present while he took the images.

9Following receipt of the CSOI report, the Employer held an allegation meeting with the grievor on September 20, 2021, and thereafter, on February 4, 2022, issued him a Disciplinary Letter of Reprimand. The discipline was for having been directly involved in a use of force incident, but nonetheless being present when the sergeant directed him to be present while the sergeant took digital images of the inmate’s injuries.

10The Ministry of the Solicitor General “Institutional Services Policy and Procedure Manual” as it regards “Digital Images of Inmate and Staff Injuries” outlines procedures for obtaining and storing digital images of inmate and staff injuries. Pursuant to that policy, at section 6.1 it states as follows:

6.1.3 If operationally feasible, staff involved (see 4.4 for participant definition) in a Use of Force incident are not to be present or take images of an inmate’s injuries. If it is necessary for a staff member involved in the Use of Force incident to be present for (or take) the digital images of an inmate’s injuries (i.e. no other staff member is available) the sergeant will select a staff member with the least level of involvement in the Use of Force incident. A clear and concise written rationale must be provided by the sergeant in his/her Occurrence Report of Use of Force (UofF) Occurrence Report (if applicable) to justify the attendance of the involved staff member. …

11In section 4.4, the participant definition includes a staff member who was directly involved in the physical application of use of force on an inmate as well as any individual who was indirectly involved incidentally or secondarily in the events leading up to the Use of Force incident.

12The Standing Orders for the TSDC, as they relate to “SECURITY – Digital images of Inmate Injury”, state in the “Responsibilities” section as follows:

The Sergeant is responsible to ensure that digital images of inmate injuries are taken and that the digital images are downloaded appropriately. …

13It is clear from the Employer’s policies that it is the sergeant who is responsible for deciding if it is operationally feasible to have staff who were not involved in a use of force incident present for the taking of images of an inmate’s injuries. In this instance, it appears that the sergeant made the determination that it was not feasible, and directed the grievor to be present for the taking of the images. This clearly appears to be a matter beyond the purview of the grievor.

14I note that the grievor advised the Employer in his allegation meeting that there were very limited options due to it being the night shift, when there are fewer staff, and they were in a short staffing situation.

15In all of the circumstances, and having considered the submissions of the parties and the documents tendered, I find that the Employer has not established that it had just cause to issue the grievor with a Disciplinary Letter of Reprimand.

16The grievance is upheld, and the Employer is directed to forthwith remove the Disciplinary Letter of Reprimand dated February 4, 2022 from the grievor’s record.