GSB# 2017-3230

UNION# 2017-0234-0232

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Winkworth)

Union

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Arbitrator

FOR THE UNION

David Ragni Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

March 28, 2019; January 29 and 30, October 8 and December 16, 2020; February 4, March 17, April 7, June 24, September 22 and November 25, 2021; January 19, 2022

Decision

1Ms. Erika Winkworth, a Rehabilitation Officer at Maplehurst Correctional Complex, (MHCC) grieved a ten-day disciplinary suspension on December 14, 2017. The Ministry disciplined the grievor for providing preferential treatment, when she prepared a Temporary Absence Permit (TAP) for a correctional officer assigned to MHCC to serve a 30-day sentence, contrary to Ontario Regulation 381/07, of the Public Service of Ontario Act 2006, SO 2006, c.35, Sch. A. The decision to discipline was also based on the grievor failing to be forthright during the investigation and for failing to retain electronic documents related to the TAP application. The Union’s position is that the grievor was simply doing her job and therefore there was no misconduct, discipline is not warranted, and the grievance should be allowed. This is a bottom-line decision with further reasons to be provided should the parties ask for them.

2The issue before me then is whether the Ministry has proven just cause for discipline, and whether a ten-day suspension was appropriate in all the circumstances. There is no question that the grievor prepared the TAP application for the CO inmate, which lead to the CO’s early release from the institution, when it was not her job to prepare TAP applications. The preparation of the TAP occurred in the context of preferential treatment by other CO’s and a Manager, who were all subsequently disciplined. The CO inmate was amongst other things, allowed to stay in his own street clothes, remain in Admitting and Discharge during the day, provided with non-inmate food and permitted to take smoke breaks and use a cell phone. No ordinary inmate would ever be given such privileges.

3Preferential treatment of a fellow incarcerated CO is a serious violation of the conflict of interest regulations under PSOA. I am persuaded that the grievor’s rush to prepare the TAP, the deliberate deletion of key documents and her failure to be forthcoming during the investigation prove that she was giving the CO inmate preferential treatment, and she knew exactly what she was doing. The grievor was part of the concerted effort by a group of Maplehurst employees to “take care of our own.” No ordinary inmate would have had a TAP application prepared and filed so quickly.

4Had Ms. Winkworth acknowledged that her preferential treatment was inappropriate and a breach of her duty not to provide anyone with special treatment, I might have been persuaded to reduce the discipline. However, throughout the hearing she maintained the position that she was just doing her job. Given all the circumstances, I am satisfied that a ten-day suspension is proportionate to the misconduct.

5Consequently, having carefully reviewed the evidence and submissions of the parties, I am persuaded that the Ministry has proven just cause for the discipline, and a ten-day suspension is reasonable in the circumstances. The grievance is hereby dismissed.