P-2012-3436

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Gregory Dyson

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Donald D. Carter

Vice-Chair

FOR THE COMPLAINANT

Gavin Leeb Gavin Leeb Law Office Counsel

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARING

May 24, November 7, November 21, December 5 & 18, 2013

Decision

1The complaint, an Operational Manager employed at the Niagara Detention Centre, was advised by a letter from the employer, dated October 23, 2012, that he had been dismissed for cause pursuant to sec. 34 of the Public Service of Ontario Act. At the hearing, the employer relied on three separate incidents to justify its decision to discharge the complainant with no compensation. The first incident involved the alleged failure of the complainant to report the use of excessive force by a Correctional Officer while conducting a strip search at the Niagara Detention Centre on January 11, 2012. The second incident occurred on July 5, 2012, at the Niagara Detention Centre when the complainant was alleged to have used excessive force by kicking a meal hatch while an inmate’s arm was protruding from the opening, causing injury to the inmate’s arm. The third incident involved an alleged lack of diligence by the complainant in performing his duties as Compliance Officer in preparing the report of another use of force incident that had occurred earlier on January 3, 2010, at the Elgin-Middlesex Detention Centre. In his report of that incident the grievor had characterized the injuries to the inmate incurred as the result of a use of force as being consistent with a discractionary blow and then had prepared a report for management signoff that had inaccurately stated that there had been no injuries to the inmate.

2The complainant is 49 years old and had been employed by the Ministry of Community Safety and Correctional Services since 1990 after serving for 6 years in the Canadian military. He has received an exemplary service medal from the employer and has also received the Queen’s Diamond Jubilee Medal for his volunteer work. He is married and the father of two children, ages 10 and 12. There is no dispute that the complainant has had great difficulty in finding full-time work and supporting his family following his dismissal from his employment with the Ministry.

3The complainant did not dispute that these three incidents had occurred but provided an explanation for each one of them. With respect to the first incident on January 11, 2012, the complainant testified that inmate M had become upset when advised that he would be moved from his segregation cell and claimed to be suicidal. The complainant, who was shift supervisor on that day, then decided to empty the cell of all non-essential items and to order a strip search of the inmate. The strip search was conducted by a Correctional Officer who, after encountering passive resistance from the inmate, pulled him to the cell floor and then brought him under control for the strip search to take place. The complainant testified that, even though he was in the cell at that time, he was engaged in removing items from the cell and did see any acts of excessive use of force by the Correctional Officer. As a result, the first occurrence report that he filed that day made no mention of excess force being used by the Correctional Officer. He also testified that, after the filing of an injury report by the inmate, he had reviewed the video record of the strip search and concluded that the Correctional Officer had not used excessive force but had simply used his knee to gain control over the inmate by moving in close to his body. He continued to maintain this position at a formal interview with the institution’s Deputy Superintendent of Operations, Tracy Jones, on February 1, 2012. At the hearing, the complainant testified that at those times he honestly considered the Correctional Officer’s actions as appropriate, but that he now could see that the Correctional Officer’s actions could be regarded as prohibited knee strikes to inmate M’s stomach and back.

4With respect to the second incident, the complainant testified that July 5, 2012, was a particularly busy day at the Niagara Detention Centre since approximately a third of the inmate population was being re-located within the institution that day. On that same day, inmate G was being very disruptive, having setting off a fire alarm and then flooding his cell. Inmate G was then moved to a segregation unit but his disruptive behaviour continued as he refused to retract his arm from the meal hatch in his segregation cell. The complainant, even though he was not the Operational Manager in charge of the segregation unit, then took it upon himself to resolve this problem quickly. The tactic that he chose was to yell loudly at inmate G telling him to get his arm back in the cell and then kick the meal hatch shut. This tactic, however, did not work as intended since inmate G’s arm was injured by the kicked meal hatch when he did not retract his arm sufficiently quickly. In his testimony, the complainant stated that he was not immediately aware that the inmate had been injured but that, once he realized that there had been an injury, he had made sure that it was properly reported. The complainant expressed regret for the unintended consequences of his actions, describing his conduct as a “complete rookie mistake”.

5With respect to the third incident which occurred in January of 2010, the complainant testified that, when preparing the cover letter, he had used a previous letter as a format which he then altered by cutting and pasting. However, in doing so he had neglected to change the wording of the format to indicate that the inmate had been injured. He further testified that he was upset and embarrassed when some time later his error was brought to his attention. At that time, he realized he had made a mistake and had embarrassed the Ministry when that mistake later came to light.

6The central issue in this