GSB# 2022-5632

UNION# 2022-5112-0241

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Henshaw)

Union

• and -

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

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Alex Andrews Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Connor Jenkins Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor

HEARING

October 21, 2025

Decision

1The Employer and the Union at Toronto South Detention Centre (“TSDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the Collective Agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons.

2Daniel Henshaw is a Correctional Officer (“CO”) at TSDC. On June 1, 2022, the Employer issued a 5-day suspension without pay (40 hours) to Mr. Henshaw related to incidents that occurred on February 7, 2022. Mr. Henshaw filed a grievance on June 1, 2022 claiming that the discipline imposed was excessive. It should be noted that this discipline is no longer on Mr. Henshaw’s record due to the fact that the 3-year sunset clause has expired. Despite this fact, the Parties have asked for a decision on the merits of the case, outlined below.

3Before issuing the 5-day suspension, the Employer held an allegation meeting on April 21, 2022 with Mr. Henshaw. The results of that meeting were summarized in the Employer’s letter of June 21, 2022 in which it summarized the allegation meeting and the results which culminated in the issuance of the 5-day suspension. In the April 21, 2022 allegation meeting the Employer alleged that on February 7, 2022, Mr. Henshaw was not compliant with the meal service process because he allowed inmates to serve themselves. It was further alleged that Mr. Henshaw was negligent in his duty by a) allowed multiple inmates to converge in cells, b) failed to direct inmates to remove their cell light covers, c) failed to stop inmates from engaging in risky exercise on the unit.

4With respect to the 1st allegation, Mr. Henshaw stated that he regretted allowing inmates to serve themselves, that he was wrong and that he would not do that again. In response to the second allegation, divided into three parts, Mr. Henshaw states that he “screwed up” and that he would be more vigilant next time by not allowing inmates to converge in cells and that he would direct inmates to uncover their cell lights and to stop them from engaging in dangerous exercises on the unit.

5The Employer maintained that the 5-day suspension was reasonable. Assessing all of the allegations, the Employer was of the view that Mr. Henshaw’s conduct on February 7, 2022 fell below the standard of professional conduct expected of a Correctional Officer and Ministry Employee. From the Employer’s perspective, allowing inmates to serve their own food could have resulted in disorder and unfair distribution of food between inmates. As well, allowing inmates to congregate in a cell could have had dangerous consequences resulting in injury or death to inmates and possible loss of control over inmates. By not stopping inmates from doing exercises, such as, hanging off railings or off of the stairwell, the Employer argued that Mr. Henshaw was allowing inmates to engage in conduct that could have resulted in injury to them. Lastly, the Employer noted that Mr. Henshaw did not ask inmates to remove clothing off the cell lights and as a result light was blocked in cells preventing clear and bright exposure necessary for monitoring activity in the cells. The Employer submitted that even if the 5-day suspension falls within the high end of a reasonable range of discipline, that I should not reduce it citing the decision in OPSEU (Basta) v. Ontario (Government and Consumer Services) 2015 CanLII 32591 (On) at paragraph 14 where the Arbitrator states: “Where the discipline imposed by the employer falls inside the range of what can be considered reasonable, as here, it is not for the arbitrator to try and fine-tune the discipline.”

6The Union submitted that Mr. Henshaw’s 5-day discipline was excessive in the circumstances given that there was no prior discipline on his record and that he took full responsibility for his actions, was remorseful and promised that he would not engage in such conduct in the future. While the Union agreed that it is a Correction Officer’s responsibility to maintain safety, custody and control over inmates, it noted that the allegations related to risky exercise, covering of cell lights and allowing inmates to congregate in a cell, although serious, did not result in any harm and did not involve a great deal of risk to inmates. In addition, the Union noted that nothing untoward occurred between the inmates when they served themselves their meals and that there were not complaints from them about how the meals were distributed amongst them. It was also not disputed by the Employer, that during Mr. Henshaw’s shift on February 7, 2022 there was a situation involving an unruly inmate that Mr. Henshaw had to attend to. The Union suggested that by dealing with the unruly inmate Mr. Henshaw was distracted and may not have been able to maintain a complete focus on the remaining inmates in the unit.

7Having considered the Parties submissions, I have decided to reduce Mr. Henshaw’s discipline down to a 3-day suspension. While the Basta case determined that a 20-day suspension handed down was at the high end of a reasonable range of discipline on those facts, I am not convinced that the 5-day suspension is the top of an appropriate range for suspension in this case. I find that consideration of a range of discipline from 1-3 days would have been reasonable and appropriate in the circumstances and that by substituting a lesser penalty, the 3-day suspension would fall within the higher range of a 1–3-day suspension recognizing the substantiated allegations. While I am not diminishing the importance of a Correction Officer’s duty to maintain safety, security, custody and control of inmates and of institutions generally, weighing the risks that occurred in this case versus the mitigating factors, Mr. Henshaw’s lack of a prior record, remorse, acknowledgement, and promise not to repeat the behaviour and to be vigilant should have played a bigger role than they did in the Employer’s assessment and decision. Unlike, the grievor in the Basta case, Mr. Henshaw also claimed responsibility for his actions, admitted wrongdoing and pledged to not repeat the behaviour. In addition, while what Mr. Henshaw did was wrong, he may have been distracted in the performance of his duties when he attended to the other unruly inmate, and while not condoning his behaviour, that distraction might have been taken into account as another mitigating factor.

8Accordingly, the 5-day suspension is reduced to a 3-day suspension and the Employer is ordered to reimburse Mr. Henshaw for 2 days’ pay (16 hours) representing 8-hour shifts for each day.