GSB# 2022-8912

UNION# 2022-0368-2073

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Crockford)

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 Officers

FOR THE EMPLOYER

Michael Kuk Treasury Board Secretariat Employee Relations Advisor

HEARING

May 10, 2023

Decision

1The Employer and the Union at the Central East Correctional 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 it is without prejudice or precedent.

2Adam Crockford (the "Grievor") is a Correctional Officer 2 employed at the Central East Correctional Centre (CECC).

3On September 19, 2022, the Grievor received a 3-day suspension in relation to the Employer's determination that: (1) he failed to contact the Health Unit to inquire about the medication needs of Inmate S; (2) that he uttered racial slurs towards Inmate S, who is a person of colour; and (3) he failed to report the incident involving Inmate S.

4The Grievor was working a T19 night shift that began on May 11, 2022. Shortly after midnight, he was providing "break relief" at 8 SCU. At that time, Inmate S who was being treated for gunshot wounds asked the Grievor to contact the Health Unit with respect to receiving more pain medication. Inmate S reported that the Grievor refused to do so.

5Inmate S was not happy that he wouldn't be receiving additional pain medication, and he started to verbally accost the Grievor, which led to a verbal exchange between the two.

6Inmate S subsequently asked another Correctional Officer if he could speak to a Sergeant. He also requested an Inmate Statement form.

7At approximately 3:40 a.m., Sergeant J. Mark spoke to Inmate S, who reported to him that he had threatened the Grievor, and the Grievor threatened him back. At that time, Inmate S stated that he was too tired to fill out the Inmate Statement form, and that he would deal with the issue in the morning with the day staff.

8Later in the day on May 12, 2022, Sergeant M. Cudhay collected a completed Inmate Statement form from Inmate S as well as a brief written Statement from two other inmates. In his Statement form, Inmate S claimed that not only did the Grievor threaten him, but he also directed racial slurs towards him.

9Inmate S subsequently contacted the Kawartha Lakes Police Services (KLPS) with respect to potentially filing charges against the Grievor for threatening him.

10On May 13, 2022, a Police Officer with the KLPS interviewed Inmate S at the CECC. According to the Officer, Inmate S claimed that after the Grievor refused to see about getting him more pain medication, he told the Grievor that he should come into his cell, so he could spit on him. Inmate S further stated that the Grievor said if he came into Inmate S's cell that he would kill Inmate S, and Inmate S would be picking his "teeth off the ground". Inmate S repeated the claim that the Grievor then commenced directing racial slurs towards him.

11The KLPS, upon reviewing the statements of all those involved including the Inmate Statement forms of the other two inmates and the video of the incidents (note the video did not have audio) decided since there was no corroboration of the allegations of Inmate S that he had been threatened by the Grievor, there was no basis to lay criminal charges.

12It is recognized that in the case at hand, a lower threshold of a balance of probabilities test applies with respect to the required standard of proof than that which applies in a criminal proceeding. However, I have come to a similar conclusion that given the lack of corroborating evidence, the claim that the Grievor directed racial slurs towards Inmate S cannot be substantiated. In coming to that conclusion, particular reliance was placed on the fact that Inmate S did not make any reference to racial slurs in his initial reporting of the incident to Sergeant Mark at 3:40 a.m. on May 12, 2022.

13With respect to the allegation that the Grievor did not contact the Health Unit with respect to Inmate S’s medication requirements, I have come to a different conclusion. The Grievor’s Occurrence Report suggests that he did not contact the Health Unit; he instead advised Inmate S that the medical staff knew when his next dose of medication was scheduled to be dispensed, and that he would be provided the medication at that time. At the Med/Arb hearing, the Grievor claimed, however,

that he did, in fact, contact a nurse in the Health Unit pursuant to Inmate S’s request, and he subsequently advised him that he would only be receiving his medication as scheduled. Not only was there the inconsistency in the Grievor’s offered narratives but, in my view, his refusal to comply with the request to contact the Health Unit provides a better explanation for the angry response of Inmate S. It may well be that a CO is not obligated in every case to comply with an inmate’s request to contact the Health Unit, but in this case, given the relevant circumstances, the failure of the Grievor to reach out to the Health Unit was inappropriate and worthy of a modest disciplinary response.

14In light of the above determinations, the grievance is upheld in part. The 3-day suspension is, hereby, reduced to a written warning. The Grievor is to be made whole with respect to any lost wages and benefits.