GSB# 2023-00429

UNION# 2023-0737-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hebert)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 25, 2024

Decision

1This is a discharge grievance. The parties appeared before me to argue a motion brought by the Union which seeks an Order or direction preventing the Employer from calling evidence about the suicide of an inmate. I advised the parties that, given the time restraints, I would provide a short decision with directions. This is that decision.

The Facts

2The Grievor is employed as a correctional officer. He is represented in his employment relations with the Employer by the Union.

3The Grievor was assigned to work on an inmate living area at the institution on the night shift. It is alleged that he failed to do his required rounds (security patrols) through the inmate living areas and/or that he conducted his rounds improperly. The rounds are required, in part, to ensure inmate wellness.

4An inmate died by suicide while the Grievor was assigned to conduct rounds of the inmate living area. The Grievor was suspended with pay pending investigation. An investigation was conducted and eventually the Grievor’s employment was terminated. The termination letter provided the following grounds for termination:

2. You failed to conduct or adequately conduct security patrols and failed to ensure inmate safety by conducting or adequately conducting visual inspections of all occupied cells and other occupied areas in Block 5, contrary to Ministry Policy and TBJ Standing Orders, including as follows:

a. At 1937, 2059, and 2129 hours you placed the patrol recording device on the checkpoint at Block 5 but did not patrol Block 5;

b. Failed to conduct or adequately conduct security patrols of Block 5 every 30 minutes between 2031 hours and 2203 hours, resulting in a 92 minute interval between patrols;

c. Failed to conduct or adequately conduct a security patrol at 0001 hours when you placed the patrol recording device on the checkpoint at Block 5 but did not patrol Block 5. You failed to conduct or adequately conduct visual inspections of all occupied cells and other areas;

d. Failed to use a flashlight in accordance with TBJ standing orders when conducting security patrols on Block 5 until 0031 hours on August 08, 2023;

e. You are frequently observed navigating the area past cells without breaking stride and not consistently looking into each cell.

3. You falsely recorded in the Post 2 logbook, a security patrol was performed at 1930, 2100, 2130, 0001 hours, when that security patrol was not performed, resulting in a permanent record that was not factual or accurate, contrary to Ministry Policy.

4. You failed to maintain the Post 2 logbook in accordance with Ministry Policy by not recording: a detailed first entry regarding the assumption of log duties, break relief, post absences and inmate movement.

5. You failed to carry the emergency rescue knife on his person as required for Post 2 when on a night shift, contrary to TBJ Standing Orders.

Allegation #1 was not relied on for the purpose of this discipline.

5As can be seen, none of the grounds set out in the termination letter suggest that the Grievor’s conduct led or contributed to the death of the inmate. In other words, the Employer does not allege that had the Grievor done his rounds as required he would have discovered the inmate before he died. The Employer explained that was because, in part, it could not ascertain a precise time of death.

6In this motion the Union seeks an order that the Employer be precluded from leading any evidence about, or even mentioning the fact, that an inmate had died. It argues, in part, that given that the Employer cannot prove that the Grievor’s actions contributed to the death of the inmate, it ought not to be allowed to lead evidence that the inmate died. It asserts such evidence is not relevant to the discipline imposed and the grounds relied on. It will serve only to taint an objective view of the evidence that is actually relevant.

7I disagree with the Union. Evidence of the death of the inmate could serve at least three purposes. First it can provide context to the Employer’s decision making and investigation. In this regard, I note that it seems clear that the inmate’s death was a central part of the investigation. Second, the termination letter appears to state that the death of the inmate was one of the factors considered by the Employer in deciding to terminate the Grievor’s employment rather than impose a lesser penalty. Finally, it and the evidence surrounding the inmate’s behaviour on the day in question (which I also allow) provide context to the Grievor’s activities that night.

8Finally, I am fully capable of assessing the relevant evidence in this matter without being unduly swayed by the fact the inmate died.

9Accordingly, I will allow the Employer to call evidence regarding the fact that the inmate died. However, I will not allow Employer evidence that goes to show that the Grievor’s activities may have actually caused the death of the inmate without a formal motion from the Employer to amend the grounds of discharge. I note the significant obstacles to the Employer succeeding in such a motion, particularly in these circumstances, which are identified in the cases relied on by the Union.

10For these brief reasons the Union’s motion is dismissed. If the parties require full reasons they are invited to request them at the conclusion of the case on the merits.