GSB# 2023-00049

UNION# 2023-0368-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Patterson)

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.

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

3On February 27, 2023, the Grievor received a one-day suspension for failing to provide sufficient detail in a Use of Force Occurrence Report he completed. In particular, the Employer alleges that the Grievor engaged in "Code of Silence" behaviour with respect to a use of force incident involving an inmate.

4The use of force incident, which took place on September 6, 2022, involved an inmate who was running outside of his cell. A number of Correctional Officers responded and apprehended the inmate under a set of stairs. The inmate was taken to the ground and was non-compliant while the Officers attempted to place him under control and apply handcuffs.

5The Grievor arrived on the scene and proceeded to observe what was transpiring.

6Based on a video of the incident, the Employer asserted that a female Officer who was standing and observing the scene placed her foot on the back of the inmate. The Employer further asserted that the Grievor, given his close proximity to the female Officer (he was standing directly behind the female Officer), would have noticed her alleged inappropriate use of force; and yet, knowingly, failed to reference her inappropriate behaviour in his Use of Force Occurrence Report pertaining to the incident.

7While no issue whatsoever would be taken with the imposed quantum of penalty if it were to be established that the Grievor acted in the manner alleged; it is my determination that the Employer did not satisfy the onus of establishing it had just cause to discipline the Grievor.

8To suggest that the video of the incident fails to fully capture the actions involved is an understatement; and yet, it served as the sole basis for the Employer's decision to issue the one-day suspension. The view of the inmate while he was on the ground being placed under control by the Officers is entirely blocked by the set of stairs where the incident took place. The video does show the female Officer in question raising her right foot up and forward towards where the inmate is lying while he is being placed under control. It also shows the Officer moving her foot back to the ground in response to the inmate being raised from the ground and being pulled forward. Accordingly, the Employer’s suspicion that the female Officer may have used inappropriate force in relation to the inmate, and that the Grievor may have knowingly failed to report the purported inappropriate use of force is understandable. A justified suspicion, however, is not, in itself, a sufficient basis to establish that the Employer had just cause to take disciplinary action. The submitted evidence must establish that the alleged misconduct, in fact, took place. The lack of clarity associated with the video suggests that it is quite difficult to necessarily conclude on a balance of probabilities test that the female Officer had her foot on the inmate's back as alleged. In this regard, it is far from clear whether the Officer’s foot was merely raised in a defensive posture—not resting on anything at all—never mind determining that it was necessarily resting on the inmate. It is noted that the lack of clarity associated with the video is arguably borne out by the Employer’s own description of the event. At the Allegations Meeting and in the February 27, 2023, Disciplinary Action letter issued to the Grievor, it is alleged that the female Officer had placed her foot on the back of the inmate. At the Med/Arb session, the Employer suggested, however, that the inmate’s head was the point of contact. With respect to the original alleged point of contact, the position of the inmate when he was brought to his feet suggests that he was lying on the ground with the top of his head in front of the female Officer's feet, which suggests that given the limited nature of the movement of her leg forward, it would have been impossible for her foot to have extended over his head and onto his back.

9It is further noted that if the female Officer's foot was on the back (or the head for that matter) of the inmate as alleged, it would be highly improbable that the Officers on the ground restraining the inmate would not have also observed the placement of her foot. Yet, none of these Officers were disciplined for failing to report any alleged inappropriate conduct of the female Officer. This fact, in combination with the lack of clarity associated with the video, suggests that the Employer did not have just cause to discipline the Grievor.

10In light of the above determination, the grievance is, hereby, upheld. The one-day suspension is rescinded, and the Grievor should be made whole with respect to any lost wages and benefits.