GSB# 2017-0130; 2017-0336; 2017-0337; 2017-0347; 2017-0351; 2017-0352; 2017-0354; 2017-0355; 2017-0360; 2017-0361; 2017-0362; 2017-0365; 2017-0366; 2017-0367; 2017-0388; 2017-0389; 2017-0390; 2017-0393; 2017-0394; 2017-0417; 2017-0659

UNION# 2017-5112-0059; 2017-5112-0072; 2017-5112-0073; 2017-5112-0075;2017-5112-0079; 2017-5112-0080; 2017-5112-0082; 2017-5112-0083; 2017-5112-0088; 2017-5112-0089; 2017-5112-0090; 2017-5112-0093; 2017-5112-0094; 2017-5112-0095: 2017-5112-0097: 2017-5112-0098; 2017-5112-0099; 2017-5112-0102; 2017-5112-0103; 2017-5112-0107; 2017-5112-0131

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sabada et al)

Union

• and -

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

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Counsel

HEARING

October 11, 2022 and January 18, 2023

Decision

1This matter consists of grievances filed by 30 Correctional Officers (COs) who were suspended with pay pending investigation in March and April 2017. The Union asserts the process undertaken by the Employer when deciding to suspend the COs does not comply with the terms of a settlement reached by the parties in 2012.

2The parties provided the Board with the Partial Agreed Statement of Facts (PASF) attached to this decision as Attachment 1. The appendices are not attached. The Memorandum of Settlement (the “MOS”) referred to at paragraph 14 of the PASF is attached to this decision as Attachment 2. The memorandum sent in compliance with paragraph 1 of the MOS from Steven Small, Assistant Deputy Minister Adult Institutions (the “Small Memo”) is attached to this decision as Attachment 3.

3On a without prejudice basis, and for the purposes of this case only, the parties agree the Board has jurisdiction to interpret and enforce the MOS. There is, a companion article in the collective agreement, namely Appendix COR 9. The parties agree the Board is not to decide if there has been a breach of Appendix COR 9. On a without prejudice basis, the parties agree the MOS is applicable to both fixed term and regular full-time employees.

4The Employer called Brad Tamcsu, who was the Deputy Superintendent Administration at the Toronto South Detention Center (“TSDC”) at the relevant time, as a witness. The Union called Local President Jason Groeneveld as a witness.

5In or around March and April 2017, the Employer discovered six separate incidents of alleged excessive use of force and/or failure to report. All the incidents took place in the Admitting & Discharge area (“A & D”) at the TSDC. Everyone working in A & D on the date of an incident or in A & D at the time of one of the incidents, was suspended with pay pending investigation.

6Mr. Tamcsu testified there was a concern that the failure to report was associated with the code of silence which involves individual(s) not reporting incidents as required by policy to protect individual(s). Mr. Tamcsu stated an allegation of an excessive use of force or a failure to report is very serious. Either offence can result in a suspension without pay or discharge being imposed as a disciplinary penalty. An excessive use of force can result in criminal charges.

7Mr. Tamcsu testified, an abridged Local Investigation Report (LIR) was done to reduce the time it would take to refer the matters to Correctional Services & Oversight Investigations (CSOI).

8Mr. Tamcsu was involved in the decision to suspend with pay pending investigation. He testified the seriousness of the allegations caused the Employer to be concerned about the safety of those in its care. He referred to the number of people involved creating a strain between the Employer and the employees. Mr. Tamcsu knew, at the time the decision to suspend was made, that CSOI had given a high priority status to the investigations. Mr. Tamcsu testified, he had direct meetings with Superintendent Wasylyk where they talked about the suspensions with pay pending investigation “and he agreed.” Later in cross-examination Mr. Tamcsu stated he knew the Superintendent made the decision as he was in many meetings with the Superintendent.

9Mr. Tamcsu was asked if consideration was given to whether there was another job the grievors could do instead of suspending them. He responded: “yes we did.” When asked to describe the process he stated: “one of the primary considerations is to place them in a location with no direct involvement with inmates which includes walking down a hallway with inmates walking down the hallway.” Mr. Tamcsu then continued: “No contact with inmates is virtually impossible, along with the seriousness of the allegations, unreported use of force and code of silence that resulted in not being able to have them in the workplace during the investigation.” Mr. Tamcsu was asked if the COs were considered individually or as a group and he responded: “Each individual was considered individually on their individual circumstances.”

10In cross-examination, Mr. Tamcsu acknowledged there are positions at the TSDC where there would be no inmate contact. In reply, Mr. Tamcsu testified the positions with no inmate contact were posts that were regularly filled by other COs and are mostly occupied by COs who require accommodation.

11Mr. Tamcsu was not aware of the MOS or the Small Memo at the time of the suspensions. Mr. Tamcsu testified, had he been aware of the documents, he would not have approached the situation any differently.

12In cross-examination, Mr. Tamcsu testified he was involved in discussions with several people including Shawn McCloud, a member of the Central Region Office. Neither the MOS nor the Small Memo were considered during these discussions. Mr. Tamcsu testified the Regional Director expressed her opinion that the COs should be suspended based on the egregiousness of the allegations and the code of silence.

13Mr. Tamcsu testified he had no recollection of telling Local President Jason Groeneveld that he was being suspended because the Regional Director issued the decision to suspend pending. Mr. Tamcsu took notes in meetings where he needed to refresh his memory of next steps he had to take. Mr. Tamcsu testified that, in his 32 years in corrections, these allegations are the most serious he has been involved in.

14Mr. Groeneveld testified he was told by Mr. Tamcsu he was being suspended because the Regional Director issued the decision to suspend pending investigation.

The Union’s Submissions

15Section 36(2) of the Public Service of Ontario Act (PSOA) grants the Employer discretion to suspend with or without pay pending the conclusion of an investigation. The Union submits that this discretion is fettered by the general duty of good faith and the terms of the MOS.

16The Small Memo provides “Superintendents should consider whether the employee under investigation can remain in the workplace in some capacity, including whether the employee can be assigned other work within the workplace.” The Union submits the obligation to consider is placed on the Superintendent and the consideration is to be undertaken with respect to each individual employee, not as a group. The Union argues the evidence does not support a finding that this was done. Further, the Union submits there were posts with no inmate contact that could have been offered to the grievors.

17The Union submits the evidence does not support a finding the Employer considered the anticipated length of time it may take to conclude the investigation and the seriousness of the allegations. The Union further submits these factors were to be considered on an individual basis and the evidence does not support a finding that such was done. Rather, the Union submits the Employer adopted a broad-brush approach suspending everyone who was in the units at the time of the incidents.

18The Union points to the fact that Mr. Tamcsu testified he was not aware of the MOS or the Small Memo at the time; he only found out about the MOS and Small Memo when preparing for the hearing. Mr. Tamcsu testified the MOS and Small Memo were not discussed at any time during the discussions leading up to the decision to suspend pending investigation.

19The Union submits notes taken by Mr. Tamcsu do not support his evidence that the factors were considered at all let alone individually and his notes support a finding the decision to suspend was made by the Region and not by Superintendent Wasylyk.

20Mr. Tamcsu testified that Superintendent Wasylyk made copious notes yet only one page of notes made by Superintendent Wasylyk was produced. Those notes contain a reference to a conversation with Mr. McLeod and make no reference to any factors being considered.

21The Union argues that Mr. Tamcsu agreed there were several posts with no inmate contact and not one shred of evidence was led as to whether consideration was given to whether the each individual grievor could be assigned to one of these posts instead of being suspended.

22The Union submits there was a total disregard of the MOS and argues it would be hard to have regard to the MOS when it was never discussed and those involved did not even know it existed.

23The Union referred to OPSEU (Union Grievance) and Ontario (Ministry of Natural Resources/Management Board of Cabinet), unreported, September 28, 1995 (Kaplan) on the sanctity of settlements. The Union relies on Meadow Park Nursing Home v. S.E.I.U., Local 220, 1983 CanLII 4910 (ON LA), 1983 CarswellOnt 2487; OPSEU (Kuyntjes) and Ontario (Ministry of Transportation and Communications), unreported, April 9 1985, (Verity); and OPSEU v. Ontario (Ministry of Community Safety & Correctional Services), 2011 CarswellOnt 8979 in support of its position the exercise of discretion must be genuine and not purported; the decision maker charged with the taking of the decision should be the one to exercise that power; and when engaged in a genuine exercise of discretion it has to be applied to each individual not by reason of a rigid policy.

The Employer’s Submissions

24The Employer submits the discovery of six separate incidents of alleged unreported use of excessive force was an extraordinary event. As Mr. Tamcsu testified, this was the most serious incident he was aware of in over 30 years of working in corrections. Of the 40 individuals suspended, one was fired and two resigned ostensibly to avoid termination. Of the 30 grievors, 28 were disciplined.

25The Employer argues, to determine if the suspensions pending investigation were reasonable one must go back to the time the decisions to suspend were made. At that time, the Employer knew some or some of the individuals were alleged to have engaged in one or more instances of an excessive use of force in respect of inmates in the institution. An excessive use of force is a criminal offence. Individuals were also alleged to have failed to complete an occurrence report after having witnessed a use of force. The extent of the failure to report a use of force raised code of silence concerns. In the Employer’s submission, the allegations go to the heart of the employment relationship and the trust that is required to sustain that relationship. For that reason, the Employer submits the suspensions were reasonable. The Employer states, wherever a CO is placed, they remain a designated peace office under the Criminal Code with the ability to apply lawful force on vulnerable inmates.

26The Employer was aware, because of prior arbitrations, that if it allowed the COs to remain in the workplace, doing so would undermine the Employer’s ability to have a termination upheld at arbitration (see: OPSEU (Pratt) and Ontario (The Ministry of Community Safety and Correctional Services), 2018 CanLII 109257; OPSEU (Hill); Ontario (Ministry of Natural Resources), unreported December 13, 1995 (Gray); International Brotherhood of Electrical Workers, Local 1620 and Newfoundland Power Inc., unreported, November 17, 2020 (Ellis) .) An arbitrator might perceive the Employer’s willingness to have them in the facility while the investigation was ongoing as evidence that the employment relationship had not been undermined or the conduct was not as severe as the Employer suggested.

27The Employer made submissions in support of the credibility of Mr. Tamcsu’s evidence and objects to the Union’s submission that his oral evidence was in any way disproven by his notes.

28The Employer submits it would not have been appropriate to base its decision on a cursory review of the video tapes. Further, whether a CO reports an incident or participated in a code of silence does not show up on the video. The Employer submits it rightfully waited for the CSOI to investigate. The Employer disputes that it cast too wide a net or used a broad brush and points to the fact that 28 of the 30 grievors were disciplined.

29The Employer asserts it did turn its mind to the option of not suspending the COs but it arrived at the decision the grievors would be suspended pending investigation.

30The Employer submits it does not matter that Mr. Tamcsu had not seen the Small Memo as it is very clear that the factors were, as Mr. Tamcsu testified, considered by the institution. You do not need to know of the memo to consider the factors. Mr. Tamcsu testified that he would not have proceeded any differently had he known about the Small Memo.

31The Employer submits Mr. Tamcsu testified he consulted with the Superintendent as well as others, and it was the Superintendent who approved each decision. Further the Employer submits, Mr. Tamcsu testified the LIR was abridged, and the CSOI investigation was expedited. This was known at the time the decisions were made.

32For COs who are responsible for the care and custody of inmates to assault them or be in any way involved in not reporting it or colluding not to report it, is as serious an allegation as there can be at this workplace. As Mr. Tamcsu testified, this was the most serious incident he had been involved in in his career.

33The Employer submits there can be no doubt that at the time the decision was made the Employer anticipated a shorter investigation time and the allegations were extremely serious.

34The Employer submits suspending the grievors pending investigation came at a cost to the Employer. The grievors were paid not to work and the Employer had to backfill the positions. The Employer was not looking to incur that extra cost. It did so because it was necessary and because each CO occupies a position of trust and is responsible for the care and custody of vulnerable inmates. The Employer could not take chances. The Employer could not allow someone alleged to have engaged in an assault on a vulnerable person or failed to report such an assault to remain in the workplace and hope it didn’t happen again while the investigation was ongoing.

35The Employer further relies on OPSEU (Press) and Ontario (Ministry of Health and Long-Term Care) 2007 CanLII 46151 (ON GSB) in which the grievor was suspended with pay pending investigation of allegations of patient abuse. The grievor was subsequently cleared of all allegations and returned to work. The Board, while dismissing the grievance, commented that allegations of this nature must be investigated and sometimes there is a cost to be borne by those involved in caring for their accusers. The Employer’s conduct was found to be reasonable.

36Finally, the Employer relies on OPSEU (M. Fish) and Ontario (Ministry of Colleges and Universities), unreported, September 19, 1986 (Springate) in which the justness of a suspension pending investigation was assessed having regard to the anticipated length of time it would take to conclude the investigation and the seriousness of the allegations suggesting these factors are extremely long-standing and well-established which supports and explains the consideration of these factors in this matter notwithstanding those involved had not read the Small Memo.

Analysis and Decision

37As indicated above, on a without prejudice basis, and for the purposes of this case only, the parties agree the Board has jurisdiction to interpret and enforce the MOS. The parties further agree the Board’s jurisdiction is limited to the issue as to whether there has been a breach of the MOS.

38The issue as to whether the MOS creates a binding obligation on the Employer to follow the process set out in the Small Memo was not placed before me. The Employer accepts that it does. Also, for the purposes of this case, the Employer did not challenge the interpretation of the Small Memo advanced by the Union. The Employer does not contest that, at the stage of deciding whether or not to suspend an employee pending investigation, the Superintendent is required to consider “whether the employee under investigation can remain in the workplace in some capacity, including whether the employee can be assigned to other work within the workplace” as well as “the anticipated length of time it may take to conclude the investigation; and the seriousness of the allegations.” Further, there were no submissions made on the issue of onus, rather, the parties proceeded on the basis the onus was on the Employer. For the purposes of this decision, I have accepted the parties’ approach to this matter and I make no determinations as to the obligations created by the MOS, the interpretation of the Small Memo, or where the onus lies.

39Based on the agreed approach to this matter undertaken by the parties, the Employer must establish, on a balance of probabilities, that Superintendent Wasylyk considered whether each of the COs suspended could remain in the workplace in some capacity, the anticipated length of time it may take to conclude the investigation of that CO, and the seriousness of the allegations made against that CO, prior to deciding to suspend the CO pending investigation.

40The Employer argued its decision to suspend pending investigation was reasonable. The issue before me, however, is not whether the decision was reasonable. At this stage, I am to decide if the Employer followed the process the parties have agreed is required by the Small Memo.

41The Employer argued the COs could not remain in the workplace in any capacity as the nature of the allegations undermined the trust the Employer had to have it its employees and allowing them to remain in the workplace would potentially undermine the Employer’ position should they end up at arbitration. There is no evidence that either of these two factors were on the mind of the Superintendent at the time he made his decision to suspend the COs pending investigation.

42The Employer argued the allegations were so serious the Employer could not take the risk of having the COs remain in the workplace. Mr. Tamcsu did refer the seriousness of the allegations as a reason why the grievors could not remain in the workplace, but he did not testify as to the “risk” that would be incurred if they did. The Employer did not argue that the seriousness of the allegations negated the Employer’s obligation to apply the process set out in the Small Memo.

43I am not satisfied the evidence establishes the Superintendent considered each of the factors in respect of each individual CO. The evidence as to whether the COs were considered individually consists of the following single statement made by Mr. Tamcsu: “each individual was considered individually on their individual circumstances.” Mr. Tamcsu provided no particulars such as when this individual consideration took place, what individual circumstances were considered, who was involved, or what conclusions were reached. While I accept Mr. Tamcsu’s notes are not particularly relevant given the purpose for which they were made, it is noteworthy that there are no notes taken by anyone that would suggest any individual consideration was carried out. A simple statement that individual consideration was given, with no details to allow the statement to be assessed for reliability, probability or credibility is not sufficient.

44The evidence establishes that it was known at that time the decision was made that the CSOI investigation was to be expedited but there is no evidence that the Superintendent considered the anticipated length of time it would take to conclude the investigation while deciding whether to suspend the COs pending investigation. Having knowledge of a fact, and taking it into consideration when making a decision, are not the same.

45Mr. Tamcsu testified the employer considered whether there were other positions within the workplace the COs could be assigned to but given the seriousness of the allegations the positions would have to have no inmate contact and that was virtually impossible. It was established in cross-examination positions without inmate contact do exist at TSDC and it was established in reply that such positions were occupied. Mr. Tamcsu’s evidence is that the positions with no inmate contact were not considered as he did not think there were any. The fact that any such positions were occupied is not synonymous with considering the positions but dismissing them because they were occupied. The Employer failed to consider whether any of the positions with no inmate contact could be filled by one of the COs.

46Mr. Tamcsu testified he had direct meetings with Superintendent Wasylyk where they talked about the suspensions with pay pending investigation “and he agreed.” Later in cross-examination Mr. Tamcsu stated he knew the Superintendent made the decision based on conversations in many meetings at the time. No particulars were provided. As indicated above, although Mr. Tamcsu testified Mr. Wasylyk took copious notes, only one page of notes was produced. I am not satisfied the evidence establishes the decision was made by Superintendent Wasylyk.

47For the foregoing reasons, the evidence does not establish Superintendent Wasylyk considered whether each of the COs suspended could remain in the workplace in some capacity, the anticipated length of time it may take to conclude the investigation of that CO, and the seriousness of the allegations made against that CO, prior to deciding to suspend the CO pending investigation. The Employer failed to comply with the procedural requirements of the MOS.

48I remit the matter of remedy back to the parties. I remain seized in the event the parties are unable to reach an agreement.

Dated at Toronto, Ontario this 7th day of February 2023.

Attachment 1

GSB No. 2017-0130

OPSEU No. 2017-5112-0080

PARTIAL AGREED STATEMENT OF FACTS

BETWEEN:

Ontario Public Service Employees Union (“Union”)

• and -

Sabada et al. (“Grievors”)

• and -

THE CROWN IN RIGHT OF ONTARIO (Ministry of Solicitor General) (“Employer”)

These facts are agreed upon solely for the purposes of this matter and are without prejudice to any other matter.

Background

1. At the relevant time, the grievors were all Correctional Officers (COs) employed at the Toronto South Detention Centre (TSDC). They were responsible for the care, custody and control of adult male inmates at TSDC.

2. TSDC consists of two parts: (1) a maximum-security building that can house up to 1,650 remanded offenders awaiting trial; and (2) a maximum-security building, known as the Toronto Intermittent Centre, that can house up to 320 inmates serving primarily weekend or other intermittent sentences.

3. In or around March and April 2017, the Employer discovered a series of six separate incidents in the Admitting & Discharge area at TSDC involving alleged unreported use and excessive use of force, and alleged failure to report/code of silence violations.

4. As a result of these discoveries, the Employer issued letters to 40 individuals between March 22, 2017 and April 18, 2017 notifying them that they were suspended with pay pending investigation into the allegations. Of the 40 employees who were suspended with pay pending investigation, 7 were Operational Managers (OMs) who are not represented by a bargaining agent, and 33 were Correctional Officers (COs) of whom 30 are grievors in this matter. A copy of the letters issued is attached (Appendix A).

5. Schedule A sets out the names of the COs suspended pending investigation, the dates they were put on suspension with pay, and the dates that they were returned to active work (if applicable).

Local Investigations Followed by CSOI Investigations

6. Following the discovery of the six separate incidents referred to above, management at TSDC commenced investigations of each incident. The investigations included gathering relevant documents/materials and completing a Local Investigation Report (L.I.R.) package for each incident. The Regional Director made the decision to escalate the matter by requesting a Correctional Service Oversight and Investigation (CSOI) Level 1 investigation for each of the six incidents.

7. TSDC provided materials to the CSOI unit on February 23, 2017, March 30, 2017, April 18, 2017, and April 19, 2017. CSOI commenced its six investigations, which included meeting with witnesses, reviewing materials, reviewing the videos, and then weighing and drafting their findings. CSOI provided the Employer with their final reports on:

i. May 26, 2017;

ii. May 29, 2017;

iii. June 15, 2017;

iv. June 26, 2017;

v. July 4, 2017; and

vi. October 2, 2017.

8. The six CSOI reports are attached to this ASF as Appendix B. The Union’s position is that paragraphs 6 to 11 of this Partial Agreed Statement of Facts are not relevant to this matter.

9. Following receipt of the CSOI investigation reports, the Employer returned some of the employees suspended with pay pending investigation to the workplace pending completion of the disciplinary process. Some suspended employees were not returned until completion of the disciplinary process. Some suspended employees resigned or retired prior to the Employer completing the disciplinary process. The letters returning the respective grievors to work are attached as Appendix C.

10. Of the grievors, the investigations resulted in 28 employees receiving discipline of varying quantum, including a letter of reprimand, multiple 2-5 day suspensions, two 7-day suspensions, one 10-day suspension, and one 20-day suspension. Apart from the grievors, the investigations into these incidents resulted in multiple other discipline including two 20-day suspensions and a termination.

11. Two of the grievors resigned and one of the grievors retired prior to any discipline being issued. The letters acknowledging the resignations and retirement are attached as Appendix D.

Statutory Authority for Suspension With Pay

12. Section 36 of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A allows the Employer to suspend a public servant with or without pay, pending an investigation:

36 (1) The Public Service Commission may conduct an investigation in order to determine whether there is cause for the purposes of section 34.

(2) The Public Service Commission may, pending the conclusion of an investigation, suspend the public servant for a period not exceeding the period prescribed under clause 55 (1) (a).

(3) The Public Service Commission may withhold the public servant’s salary, wages or any other remuneration, including benefits, during the suspension under this section if it considers it appropriate to do so, and may, at the end of the investigation, reimburse amounts that were withheld if it considers it appropriate to do so.

13. Pursuant to section 1 of Ontario Regulation 379/07 the maximum period allowable for a suspension pending investigation is two years.

2012 Memorandum of Settlement (“MOS”)

14. On January 10, 2012, the Employer and OPSEU agreed to settle a previous grievance filed by OPSEU regarding the suspension without pay pending investigation of certain fixed-term COs. The MOS is attached as Appendix E.

15. On January 16, 2012, pursuant to paragraph 1 of the MOS, the Employer issued a memorandum to all Regional Directors and Superintendents regarding suspensions pending investigation. This memorandum is attached as Appendix F.

16. The Union alleges that the Employer did not comply with the terms of the MOS and memorandum and Collective Agreement.

17. The Employer did not advise the Union or the Grievors of any considerations/undertakings relating to the MOS or Memorandum issued by ADM Small.

Appendices to this Partial Agreed Statement of Fact:

A. Letters to Grievors (Suspension with Pay pending investigation)

B. CSOI Reports

C. Letters to Grievors (Return to Work pending disciplinary process, as applicable)

D. Resignation acknowledgments

E. Memorandum of Settlement dated January 10, 2012

F. Memorandum of Steven F. Small dated January 16, 2012

G. Grievances

H. Collective Agreement excerpts

Schedule A

Name	Date Suspended Pending Investigation	Date Returned to Work	Grievance Date	OPSEU#	GSB#
Adair, A	Mar 30, 2017	Jul 7, 2017	Apr 17 2017	2017-5112-0083	2017-0355
Adesua, O	Mar 31, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0072	2017-0336
Ali, S	Mar 30, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0082	2017-0354
Dhillon, A	Mar 30, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0095	2017-0367
Ellis, D	Mar 22, 2017	Nov 23, 2017, following disciplinary suspension	Apr 17 2017	2017-5112-0098	2017-0389
Gondosch, M	Mar 31, 2017	Jun 28, 2017	Apr 19 2017	2017-5112-0102	2017-0393
Groeneveld, J	Mar 31, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0094	2017-0366
Matchuk, M	Mar 30, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0093	2017-0365
Popov, D	Mar 31, 2017	Jun 28, 2017	Apr 19 2017	2017-5112-0103	2017-0394
Roy, M	Mar 31, 2017	Not returned; Retired Sept 7, 2017 prior to allegation meeting	Apr 17 2017	2017-5112-0090	2017-0362
Sujballi, P	Mar 30, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0089	2017-0361
Verspeeten, J	Mar 30, 2017	Jun 28, 2017	Apr 17 2017	2017-5112-0088	2017-0360
Atkins, L	Apr 18, 2017	Jul 17, 2017	Apr 18 2017	2017-5112-0101	2014-0392
Carrabs, D	Apr 18, 2017	Jul 17, 2017	Apr 18 2017	2017-5112-0100	2017-0391
Rajadhithan, S	Apr 10, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0076	2017-0348
Marien, L	Apr 10, 2017	Jul 7, 2017	Apr 17 2017	2017-5112-0107	2017-0417
Coutu, C	Mar 22, 2017	Jun 12, 2017	Apr 17 2017	2017-5112-0099	2017-0390
Jackson, J	Apr 10, 2017	Jun 12, 2017	Jul 27 2017	2017-5112-0213	2017-1508
Carson, C	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0096	2017-0368
Hastie, J	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0074	2017-0338
McKay, J	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0091	2017-0363
Omar, O	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0078	2017-0350
Williams, S	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0071	2017-0335
Willie, C	Mar 22, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0087	2017-0359
Sabada, M	Apr 10, 2017	Jul 12, 2017	Apr 17 2017	2017-5112-0080	2017-0352
Sabada, M	See above	See above	Jul 31 2017	2017-5112-0219	2017-1674
Bellwood, C	Apr 11, 2017	Jul 17, 2017	May 17 2017	2017-5112-0073	2017-0337
Benipal, H	Apr 10, 2017	Jul 17, 2017	Apr 17 2017	2017-5112-0097	2017-0388
MacIver, J	Apr 10, 2017	Aug 21, 2017	Sep 15 2017	2017-0411-0027	2017-2981
Li, Dongtao	Apr 10, 2017	RTW/Transfer to CECC following allegation meeting on Jul 27, 2017	Apr 17 2017	2017-5112-0075	2017-0347
Pollington, R	Apr 11, 2017	Not returned; Resigned Sept 7, 2017 prior to allegation meeting	Apr 17 2017	2017-5112-0079	2017-0351

Attachment 2

MEMORANDUM OF SETTLEMENT

Between

The Ontario Public Service Employees Union (The Union)

AND

The Crown in Right of Ontario As Represented by

the Ministry of Community Safety and Correctional Services (MCSCS)

(The Employer)

WHEREAS the union filed a grievance dated September 22, 2011 (OPSEU# 2011-0999-0050) alleging that the employer had violated specifically, but not exclusively, article 2, 3, 21 and appendix COR 10 of the collective agreement in regard to the suspension of fixed term employees without pay pending investigation; and

WHEREAS the parties are desirous of resolving the matters giving rise to the grievance;

THEREFORE the parties agree to the following terms on a without precedent and without prejudice basis:

1. The employer will issue a communication to Institutional Services, MCSCS regarding suspensions pending an investigation. The communication (attached as Appendix A) will highlight the process for suspensions pending investigation, the requirement for management to exercise discretion when determining whether to suspend pending an investigation, and factors to consider when determining whether to suspend an employee with or without pay.

2. The employer will issue the communication to Institutional Services, MCSCS within 10 business days of the signing of this settlement.

3. This settlement is not an admission or concession of liability or wrongdoing on the part of any of the parties.

4. This settlement does not infringe on the ability of the employer to exercise its rights under the collective agreement, legislation or otherwise. Nor does this settlement preclude the union from grieving any action taken by the employer in accordance with those rights.

5. This settlement constitutes the complete agreement between the parties in relation to the above-noted grievance and all related concerns. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this settlement.

6. The above-noted grievance is hereby fully and finally resolved.

Dated in Toronto this day 10 of January, 2012.

For the Union

For the Ministry

Attachment 3

Ministry of Community Safety and

Correctional Services

Correctional Services Division APPENDIX A

Office of the

Assistant Deputy Minister

16th Floor

25 Grosvenor Street

Toronto ON M7A 1Y6

Telephone: (416) 327-9911

Facsimile: (416) 314-6669

Memorandum

From: Steve Small, ADM, Adult Institutions

To: All Regional Directors, Deputy Regional Directors, and Superintendents

Re: Important Message regarding Suspensions

When an investigation is initiated Superintendents should consider whether the employee under investigation can remain in the workplace in some capacity, including whether the employee can be assigned other work within the workplace. Where it is determined that an employee cannot remain in the workplace pending an investigation, he or she will be suspended under section 36 (2) of the Public Service of Ontario Act (PSOA). A suspension under s. 36 (2) may be with or without pay for both regular and fixed-term employees, as set out in section 36 (3). Where it is determined that a suspension of a fixed-term employee will be with pay, their weekly pay will be calculated in accordance with Appendix COR 10 of the collective agreement. In the event that a regular employee is suspended with pay, they will continue to receive their regular weekly wage.

The following are some of the factors to be considered when deciding whether to suspend an employee with or without pay:

1. the anticipated length of time it may take to conclude the investigation;

and,

2. the seriousness of the allegations.

Each decision to suspend pending an investigation and whether it will be paid or unpaid will be based on the specific facts of each case. In the event you are considering suspending an employee without pay pending an investigation you must consult with the Centre for Employee Relations.

When an employee has been suspended pending an investigation the Superintendent will contact the OPSEU Local President and the Regional Director will contact the OPSEU MERC co-chair to notify them of the suspension.

Please contact your Employee Relations Advisor if you have any questions or concerns about suspensions pending investigation.

Steve Small