GSB# 2022-11275

UNION# 2022-0368-2336

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Obress)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Nishal Nair 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.

2Mitchell Obress (the "Grievor") is a Correctional Officer 2 employed at the Central East Correctional Centre.

3On November 23, 2022, the Grievor received a 5-day suspension for: (1) failing to complete security patrols on Unit 4B on August 12, 2021; and (2) failing to maintain the Unit 4B logbook as required that same day.

4It is not essentially disputed by the Union that the Grievor failed, along with other Correctional Officers (COs) assigned to that Unit, to complete the required security patrols of the Unit for an approximate 2-hour period on the day in question. It is also accepted that the logbook for the Unit was not maintained as required on the day in question.

5An inmate was apparently seriously assaulted on that Unit during the relevant period in question.

6The Union and the Grievor claimed a significant mitigating factor was that as a result of the impact of the COVID-19 pandemic, the Unit was significantly short-staffed on the day in question. It was further asserted that when the Officers approached the Sergeant supervising the staff on the Unit that day with their concerns about being short-staffed, the response provided was to make do as best they could.

7Three other COs were likewise disciplined for failing to complete the necessary security patrols on the Unit that day; however, they each received a 3-day suspension as opposed to the 5-day suspension issued to the Grievor. The Employer asserted that the reason for the disparity in the quantum of discipline was directly related to the fact that the Grievor offered no remorse for his behaviour

8The Employer indisputably had just cause to discipline the Grievor for failing to complete the security patrols as required. Furthermore, the Employer was justified in imposing a more severe disciplinary sanction on the Grievor than the other COs involved given his lack of remorse. It is my determination, however, given the relevant mitigating factors, that the penalty should be reduced from a 5-day suspension to a 3-day suspension.

9The grievance is therefore upheld in part, and the Grievor is to be made whole with respect to any lost wages and benefits.