PSGB# P-2018-1986; 2018-1987

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

McIntosh

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Michael McIntosh

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 1, 2019

DECISION

A. Background

1The Complainant, Mr. Michael McIntosh, is employed by the Ministry of Community Safety and Correctional Services (“MCSCS” or the “Employer’). This decision reviews two ‘Form 1-Application’ complaints filed by the Complainant with the Board.

2The Complainant is employed as a Sergeant at the Employer’s Maplehurst Correctional Complex (“MCC”) in Milton, Ontario. MCC is a maximum-security facility that houses approximately 1000 inmates.

3On September 17, 2018, the Complainant filed a ‘Form 1 – Application’ complaining that the Employer had wrongfully suspended him for 1 day (8 hours) for an incident that occurred at the workplace on December 25, 2017.

4The Board assigned ‘File P-2018-1986’ to this complaint.

5On September 17, 2018, the Complainant filed a second ‘Form 1-Application’ complaining that the Employer had improperly suspended him for 3 days ( 24 hours) for an incident that occurred on February 23, 2018.

6The Board assigned File Number P-2018-1987 to this complaint.

7The Employer filed a ‘Form 2 – Response’ with the Board with respect to both complaints on November 1, 2018.

8The Board scheduled a mediation session between the parties for November 22, 2018. The parties attempted to mediate both complaints. Unfortunately, the parties were unable to resolve the issues in dispute at mediation. As a result, the Board scheduled an arbitration hearing for both complaints on March 1, 2019.

B. The March 1, 2019 Arbitration Hearing

9At the March 1, 2019, hearing the Board received evidence and heard submissions with respect to both complaints. The Board initially dealt with complaint P-2018-1986, the one day suspension, and, subsequently, the evidence surrounding the three day suspension, complaint P-2018-1987.

10The Board elected to hear the evidence of the complaints separately as there was no intermingling or overlapping of the evidence between the two incidents. The parties further acknowledged that if the allegations against the Complainant were proven the only question left for the Board to determine would be the appropriateness of the penalty assigned to each complaint. The parties further acknowledged that I had the jurisdiction to modify the penalty or penalties imposed upon the Complainant.

11The Board received a number of documents into evidence. The parties agreed that these documents were relevant to the complaints. The documents were described as follows:

i) General Local Investigation Report, December 28, 2017

ii) Occurrence Reports – January 1 and 22, 2018

iii) Warrant of Committal –December 1, 2017

iv) Intermittent Sentence Agreement – December 1, 2017

v) Client Profile, December 28, 2017

vi) Letter Newhook to McIntosh, July 25, 2018

vii) Local Investigation Report, February 23, 2018

viii) Email, Marshall to Nash, Seguin, Cumming, February 23, 2018

ix) Occurrence Reports, February 23, 25 and March 9, 2018

x) Employee Information Report, July 25, 2018

xi) Letter, Serre to McIntosh, June 18, 2018

xii) Allegation Meeting Notes, June 18, 2018

xiii) Letter, Serre to McIntosh, July 25, 2018

xiv) Correctional Services Statement of Ethical Principles, #10

xv) Standing Orders, December 2015

xvi) Ontario Correctional Code of Conduct and Professionalism

xvii) Inmate Incident Reporting Manual

xviii) Correctional Services Statement of Ethical Principles, #1-8

12As discussed in paragraph 2, above, the Complainant is employed as a Sergeant at the Employer’s Maplehurst Correctional Complex. At the time of the hearing, the Complainant had been employed with CSCS for twenty-two years. He has been employed as a Full-Time Sergeant since 2017.

B. The One-Day Suspension – Complaint File P-2018-1986

I. Agreed Facts

13The parties agreed that the significant facts underlying the one-day suspension were not in dispute. They are described below.

14On December 25, 2017, the Complainant volunteered to work a shift that had been previously assigned to a co-worker. The Complainant agreed to work this particular shift in order to allow his colleague to spend Christmas day with family.

15The Complainant commenced his shift as the supervisor in the ‘Admissions and Discharge Department’ at 0700 hours and was scheduled to conclude at 2200 hours.

16As the Admissions and Discharge Supervisor, the Complainant was assigned the responsibility of overseeing the admission and discharge of all inmates returning to and departing from the MCC during the course of his shift.

17The parties agreed that the normal routine for the Supervisor in Admissions and Discharge would be to first review the “intermittent list”. The intermittent list describes the identities of those inmates who are either required to return to the custody of the MCC or, conversely, those inmates who were to be released from custody on that particular day.

18The Parties agreed that during the course of the Complainant’s December 25, 2017, shift a particular inmate identified on the ‘intermittent list’ failed to return to the MCC. This particular inmate was serving a sentence, which required him to return to the custody of the MCC at specific dates and times until his sentence was completed. In this instance, this inmate was required to return to the MCC by 0900 hours on the morning of December 25, 2019, two hours after the Complainant commenced his shift.

19The Complainant concluded his shift at approximately 2200 hours. The inmate scheduled to return was still absent from the MCC. The Complainant admits that he failed to alert anyone in a supervisory role that the inmate in question had failed to return to the MCC. Further, the Complainant failed to file a written report that indicated that the inmate remained ‘unlawfully at large’.

20The MCC only became aware of the inmate’s absence on December 27, 2017 while another Sergeant was preparing for his release on the mistaken belief that he was still present at the MCC. Peel Regional Police subsequently returned the inmate to the MCC on December 27, 2017. During the three days while ‘unlawfully at large’, the inmate allegedly committed a series of criminal offenses in the community.

21On December 28, 2017, while at home the Complainant received a telephone call from his supervisor Staff Sergeant Jones. Staff Sergeant Jones reviewed the situation with the Complainant and advised him that he had failed to notify any person in a supervisory role at the MCC that the inmate had failed to return to the MCC on December 25, 2017. Staff Sergeant Jones instructed the Complainant to file a report on the incident. The report was completed and filed with the Employer on January 1, 2018.

22After reviewing the report and concluding their investigation the Employer imposed a one day (eight hour) suspension upon the Complainant. The Employer stated that the Complainant’s failure to report the inmate as missing violated a number of workplace policies and the workplace Code of Conduct. The Employer added that the Complainant’s culpability was exacerbated by the fact that the inmate had allegedly gone on to commit a number of criminal acts while unlawfully at large.

23The Board reviewed documentation dated July 25, 2018, that formally advised the Complainant that because of the “seriousness of his misconduct” he was to be suspended for 1 day (8 hours).

II. The Submissions of the Complainant

24The Complainant did not deny that he failed to advise any one in a supervisory role that the inmate had failed to return to the MCC as required on December 25, 2017. His evidence at the hearing reflected the written report that he filed with the Employer on January 1, 2018.

25The Complainant stated that on the morning of December 25, 2017, he was “distracted from his normal duties” by a telephone request by Peel Regional Police to prepare certain documents for a “Bail Prior to Trial”. This involved an inmate who was to be transported from the MCC to the local court office for a bail hearing. The Complainant stated the telephone request came from the police at approximately 0745 hours. The Complainant testified that he was obligated to organize a number of documents that the attending police representative required to assist the court with the accused bail hearing.

26The Complainant further stated that the “bail documents” were not filed in the appropriate location in the MCC. This further complicated his ability to respond to the “last minute” request by the Peel Regional Police. In his evidence, the Complainant stated that the search for these documents further “altered his routine”. The process of locating and organizing the documents took the better part of the morning and only concluded when the inmate was released to the custody of Peel Regional Police at 1100 hours.

27As mentioned above, the Complainant’s shift concluded at 2200 hours. The Complainant testified that for the balance of the day he attended to managerial matters. He stated that his attention to several of these responsibilities was delayed because of the prolonged search for the bail documents. There was no evidence that suggested he took the time to review the ‘intermittent list”.

28Throughout his evidence, the Complainant acknowledged that he failed to notify the appropriate authorities that the inmate had failed to return to the MCC as required on December 25, 2017. He stated that he was “slightly more than embarrassed’ not simply about his reporting error but also because the inmate had allegedly committed additional crimes while unlawfully at large and, finally, that the Peel Regional Police were required to arrest him and return him to custody.

29However, the Complainant also attributed his oversight to an admissions and discharge system that he believed was “broken’. He did not elaborate on how or why the “system was broken” or how it lead to the inmate being unlawfully at large.

30Finally, the Complainant submitted that the one-day suspension imposed upon him by the Employer was too harsh. In the submission of the Complainant given his length of service, the absence of an outstanding discipline record and the mitigating circumstances surrounding the events of December 25, 2017, specifically the complicated search for the bail documents, a written warning would be an appropriate penalty.

II. Submissions of the Employer

31In response, Counsel for the Employer submitted that the imposition of discipline was justifiable given the circumstances surrounding the conduct of the Complainant. It was Counsel’s view that the facts the Complainant admitted to constitute a breach of a number of workplace policies and the Code of Conduct. These admissions alone, in the submission of Counsel, were sufficient to warrant discipline.

32As previously mentioned the Employer agreed to the essential facts as set out by the Complainant. However, there was one exception. It was the evidence of the Employer, based upon the report dated December 28, 2017, that Property Officer Delay had advised the Complainant at some time on December 25th, 2017, that the inmate in question was due to return to the MCC on that date. The Complainant did not recall that such a conversation took place.

33The Employer did not accept the Complainant’s reliance upon such factors as his attendance to the release package for the departing inmate, to excuse his “misconduct”. The Employer viewed his response as an attempt to minimize his responsibility.

34The Employer further stated that the one-day penalty, in their view, was more than fair and reasonable. In Counsel’s opinion, the Employer would have been well within its right to impose a far greater suspension upon the Complainant than the one day applied in this matter.

35Counsel submitted that a higher standard of conduct is expected of an individual in a supervisory role. As a Sergeant responsible for overseeing the admissions and discharge of inmates, identifying and immediately reporting an inmate that is unlawfully at large to one’s supervisor is an uppermost priority. Failure to do so is cause for discipline. In this instance, the Complainant only filed an Incident report after being instructed to do so by his supervisor some time after the inmate had been returned to the custody of the MCC.

36Counsel stated that the Complainant’s misconduct constituted a breach of several policies and Codes of Conduct to justify the imposition of discipline. These included the, the “Inmate Incident Reporting Manual” and the “Ontario Correctional Services Code of Conduct and Professionalism”. In addition, the Employer was not convinced that, despite his acceptance of responsibility, that the Complainant fully understood the gravity of his error.

37Finally, the Employer further submitted that the Complainant’s failure to report the inmate as unlawfully at large in a timely manner enabled the inmate to engage in an alleged series of unlawful acts, which in turn posed a security threat to the community. Counsel submitted that this brought the public and local police forces’ opinion of the professionalism and reliability of the MCC in to disrepute.

38Based on all of the above the Employer requested that the Board dismiss the complaint.

39The following authorities were submitted for consideration: Bazger v Ontario (Community Safety and Correctional Services), 2017 CanLII 25423 (ON PSGB); Dyson v Ontario (Community Safety and Correctional Services), 2014 CanLII 8245 (ON PSGB); Eden v Treasury Board (Canada Border Services Agency), 2011 PSLRB 37; Novenco Canada Inc. and USWA, Local 2931, Re, 1992 CarswellOnt 5493.

II – Decision – One-Day Suspension – Board File P-2018-1986

40Based upon the evidence presented to the Board by both parties it is undeniable that the conduct of the Complainant warrants discipline. The question now before the Board is whether the one-day suspension imposed upon the Complainant was adequate or excessive.

41It is the opinion of the Board that the one-day suspension imposed upon the Complainant is reasonable and fair given the totality of the facts. This was not simply a case where the Complainant failed to complete some requisite paperwork or some of other administrative function.

42As the ‘Admissions and Discharge Supervisor’, the Complainant was designated with the responsibility of ensuring that all inmates departing or scheduled to return to the MCC were accounted for on that particular day. He clearly failed to discharge those responsibilities with respect to the inmate that remained unlawfully at large. He failed to turn his attention to an essential element of his responsibilities on December 25, 2017. The necessary information regarding the inmate, the ‘intermittent list’, was readily available to him. Had he taken a few minutes to review its’ contents he would have been able to conclude that the inmate had not returned to the MCC at the time he was required to do so. Secondly, his failure to alert a supervisor as to the inmate’s absence thus enabled the inmate to remain unlawfully at large, who in turn resulted in that inmate allegedly committing a series of criminal offences in the community.

43The Complainant initially assigned part of the responsibility for the situation to a system that was “broken’. However, he was unable to provide any concrete examples of how the “the broken system” contributed to the inmate remaining unlawfully at large. It should be noted that the Complainant did not contest the existence of the various policy manuals, directives and Code of Conduct listed in paragraph 10, above, nor did he suggest that he was unaware of their contents.

44The Complainant, while acknowledging his error at the hearing, did not satisfactorily demonstrate that he appreciated the gravity of his conduct. He attempted to minimize the possible consequences that his lapse of attention caused and appeared to suggest that this could happen to anyone in his position. Finally, he attempted to mitigate his responsibility by suggesting that other tasks assigned to him that day distracted him from attending to such critical duties as reviewing the intermittent list.

45The inmate’s behaviour while at large only serves to exacerbate the negligent conduct of the Complainant. The fact he allegedly committed certain criminal offences is truly unfortunate. The Complainant failed to appreciate the nexus between his oversight at the MCC and the inmate’s ability to commit criminal offences while unlawfully at large.

46The authorities provided to me did not address the specific behaviour of the Complainant. Counsel for the Employer submitted that the authorities stood for the general proposition that the penalty imposed in this matter was extremely fair and reasonable given the circumstances. Counsel contrasted the fact situations set out in the authorities against those surrounding this complaint. In the submission of Counsel, the Employer in this matter could have easily justified a more significant disciplinary penalty, up to and including discharge.

47It is my determination that while the authorities provide some guidance the fate of the complaint can be determined exclusively on the conduct of the Complainant. The Complainant’s explanations and excuses are insufficient to exempt him from responsibility. He has violated a number of workplace policies, most importantly the “Standing Orders dated December 2015 – Requirements for Reporting Incidents” and the “Inmate Incident Reporting Manual”, both of which require a Sergeant to immediately report a situation where an inmate is at large and to file a report before the end of the shift. His failure to respond to the situation where there has been an “Escape, Unlawfully at Large” of an inmate has no defence. The consequences that resulted from his oversight while serious could have had far greater negative ramifications throughout the community. Therefore, the penalty of a written warning as requested by the Complainant is not an appropriate response in this matter.

48I agree with the submissions of Counsel or the Employer. Given the totality of the facts surrounding the December 25, 2017, incident, it is my opinion that the one-day discipline imposed upon the Complainant was more than reasonable and fair.

49I therefore dismiss the complaint and uphold the one day (8 hour) suspension.

C. – The Three-Day (24 hour) Suspension – Board File P-2018-1987

I. Agreed Facts

50On July 25, 2018, the Employer imposed a three-day (24 hour) suspension upon the Complainant. The suspension arose out of an incident that took place on February 23, 2018 involving the Complainant while he supervised Unit 10C Wing at the MCC.

51On February 23, 2018, the Complainant attended at the MCC to work the 0800 to 2000 hour shift. The Complainant was assigned to supervise Units 10 and 11. At approximately 1135 hours, the Complainant received a call that the inmates in Unit 10C Wing were refusing to return to their cells and requested to meet with the Complainant.

52The Complainant met with a representative of the inmates. The Complainant was advised that there was a dispute about the use of a phone. After discussing the matter with the Complainant, the inmates agreed to return to their cells.

53Commanding Officer Dale spoke with the Complainant after he returned to his office. Commanding Officer Dale informed the Complainant that she had observed Commanding Officer Emery sharing his personal cellular phone with an inmate.

54The Parties agreed that the Employer prohibits the use of personal cellular devices in all secured areas of the MCC. There are no exceptions to this policy and any employee of the MCSCS who violates it is subject to discipline up to and including dismissal. The parties informed the Board that for his infraction of the policy Commanding Officer Emery received a twenty-one day suspension.

55After speaking with Commanding Officer Dale, the Complainant discussed the matter with Commanding Officer Emery. Emery admitted he had allowed an inmate to use his cellular phone. The Complainant instructed both Dale and Emery to file Occurrence Reports. These were promptly completed and reviewed by the Complainant later that day.

56The Complainant completed his shift at approximately 2030 hours.

II. The Submissions of the Complainant

57The Complainant submitted that the imposition of a three-day (24 hour) suspension was unjust and excessive. As described below the Complainant took the position that he had complied with his managerial responsibilities and requirements with respect to every aspect of the situation that arose on February 23, 2018.

58On February 23rd, 2018, the Complainant attended at the MCC to work the 0800 to 2000 hour shift. The Employer assigned him supervisory responsibilities for Units 10 and 11. At the hearing, the Complainant took the position that it was unusual for him to oversee two Units in one shift. The responsibility of overseeing two units, in the submission of the Complainant, added extra stress and administrative work to an already difficult job. He further submitted that the responsibility of overseeing two Units contributed to the results that lead to his three-day suspension.

59At approximately 1130 hours, the Complainant received a call that he was required to attend at Unit 10C Wing. According to the Complainant, the inmates in this unit refused to return to their cells and wanted to speak to a “white shirt”. The Complainant stated that a “white shirt” is a term employed by the inmates for someone in a managerial position. He submitted that where disputes arose between an inmate or inmates and a Commanding Officer it was practice for an inmate to request the presence of a “white shirt” to intervene or otherwise mediate the dispute.

60In this instance, the Complainant responded to resolve a dispute that involved an inmate request to use a phone. According to the Complainant when he arrived at Unit 10 he was required to untangle a dispute involving at least two inmates and potentially two Commanding Officers. He met with a spokesperson for the inmates who he described as a ‘Unit Server’.

61Initially, there was some confusion as to what the dispute involved. The Complainant was confronted with an allegation that the inmates were refusing to return to their cells because Commanding Officer Dale had refused to let an inmate use the phone to cancel a medical appointment. The Complainant initially believed that the inmate was referring to the phone on the wall that is made available to every inmate.

62The Complainant explained that he found the alleged decision of Commanding Officer Dale perplexing. The wall phone located in the Unit is, aside from time restrictions, available to inmates to contact their lawyers, family members and other individuals.

63Following further discussions with the Unit Server, the inmates returned to lock up in their cells. According to the Complainant, the Unit Server stated that they agreed to return to their cells for lunch as their grievance had been heard. In the view of the Complainant, the matter was resolved.

64However, after the inmates returned to their cells the Complainant was approached by Officer Dale. She described a different situation than what the Complainant believed he had dealt with that morning. Dale informed the Complainant that she had observed Commanding Officer Emery “standing with an inmate” outside of Unit 10C Wing. The inmate was allegedly using Officer Emery’s cellular phone, which is prohibited and considered a serious violation of policy.

65According to the Complainant, he instructed Officer Dale to file a report about the incident. The Complainant acknowledged that the allegations against Officer Emery, if true were very significant. He agreed that it was a very serious offence for anyone, Officer or Supervisor, to allow an inmate access to a personal cellular device.

66After receiving Officer Dale’s verbal report, the Complainant approached Officer Emery. According to the Complainant, Emery did not deny that he had allowed the inmate access to his personal cellular phone. However, he claimed that he did so out of sympathy for the inmate whose attempts to cancel an appointment for his cancer treatment had failed earlier that morning. He further claimed that he did not allow the inmate to dial the phone and the conversation was conducted over the speakerphone.

67Finally, he instructed Emery to file an Occurrence Report with him immediately. Both Emery and Dale filed a report with the Complainant at different times during the afternoon of February 23, 2018. The Complainant concluded his shift at approximately 2030 hours.

68The Complainant stated that during his February 23rd shift he made Staff Sergeant Graham aware of the situation in Unit 10C Wing. According to the Complainant, he spoke to Staff Sergeant Graham and advised him about the matter including the fact that Emery had allowed an inmate access to his personal cellular device. The Complainant further stated that he left the reports of Emery and Dale and an incident report of his own with Graham at or near the end of his shift.

69On February 24, 2018, the Complainant received a telephone call at his residence from Staff Sergeant Jones. Jones apparently instructed the Complainant to file an Occurrence Report addressing the following issues:

i) That the Complainant did not contact Staff Sergeant Jones about the incident involving Dale and Emery

ii)That the Complainant did report his “interaction” with the inmates on Unit 10C

iii)Why the Complainant hung up the phone on Staff Sergeant Jones on February 24th, 2018.

70In response to Staff Sergeant Jones’s enquiry, the Complainant stated that he refrained from filing his formal Occurrence Report on February 23, 2018, because he wanted to take time to reflect on the situation before coming to any conclusions. The Complainant used the same language in his evidence as he did in his subsequent report to Superintendent Frankovich when he stated that he “didn’t want to jump the gun...without any evidence or facts”.

71He stated that he only received the first report from Dale at 1530 and the second one from Emery at 1900 hours. He stated that he began to draft his ‘report’ at that time. Once completed, he forwarded a report at 2015 hours, to his supervisor Staff Sergeant Graham.

72Further, the Complainant claimed that he did attempt to contact Staff Sergeant Graham on February 23, 2018 and advise him about the situation. He acknowledged that Graham might not have received or understood his message due to the Complainant’s “case of laryngitis”.

73With respect to “hanging up” on Staff Sergeant Jones, the Complainant stated that Jones’ demeanour during their multiple conversations was “harassing” and otherwise “inappropriate”. The Complainant claimed that he did not “hang up” on Staff Sergeant Jones. He claimed that the battery on his phone died during the course of the third conversation between himself and Jones.

74The Employer went on to conduct its investigation. On July 25, 2018, the Employer forwarded written correspondence to the Complainant in which they advised him that as a result of his failure to report the incident that took place in Unit 10C Wing in a timely way he was been suspended for three-days (24 hours). The Complainant disagreed with the imposition of discipline in this matter.

75The Complainant submitted that he is undeserving of discipline in this matter. He submitted that he followed all proper procedures in this matter. He pointed to the fact that after interviewing Dale and Emery he immediately instructed and received reports from both of them. He submitted that he was using his discretion as a supervisor to gather all the facts and review them thoroughly before writing his Occurrence Report. In the alternative the Complainant submitted that the three day (24 hour) suspension was excessive and a lesser penalty in accordance with the principles of “progressive discipline should be substituted”.

76The Complainant submitted that the initial reports of Emery and Dale were in the possession of Staff Sergeant Graham by 2015 hours on the day of the incident. He also stated that he had already spoken with Graham to make him aware of the situation at Unit 10C Wing. He stated that Graham might not have understood what he was reporting because at the time he had been suffering from a case of laryngitis.

77Finally, the Complainant attributed his attendance to a “medical emergency” later in the day in Unit 9 as a factor that distracted him from completing the reports and ensuring the appropriate supervisors were made aware of the matter. This, the Complainant stated, was one of the outcomes that come with having to supervise two Cell Units.

78The Complainant stated he disagreed with the Employer’s assertion that he was “incompetent” or otherwise incapable of exercising his “professional judgement”. The Complainant stated that he had been forthright and had taken responsibility for the incident that occurred in Unit 10C Wing. He submitted that he “takes his job seriously and does it well.” He did not believe that he had violated any of the Ministry or workplace policies or the Code of Conduct.

79Given all of the above, the Complainant requested that the Board rescind the discipline levied against him and that he be compensated for the three days that he forfeited. In the alternative, the Complainant submits that a three-day suspension is excessive and that the Board should substitute a lesser penalty in keeping with the principles of progressive discipline.

II. The Submissions of the Employer

80The Employer submits that the Complainant’s behaviour in this matter warranted discipline and, as a result, the three-day suspension is fair and reasonable. Counsel for the Employer stated the Complainant’s failure to report the events of February 23, 2018, was a breach of his responsibilities as a Sergeant.

81Counsel submitted that the Complainant should have immediately filed a report with his superiors with respect to his meeting with the Unit Server on Unit 10C Wing.

82Counsel further stated that the Complainant should have also immediately filed a further report with respect to Commanding Officer Emery’s violation of the cellular phone policy. He did not respond as required thus potentially placing the MCC in jeopardy.

83Counsel for the Employer stated that Emery’s decision to allow an inmate access to a cell phone could have resulted in a number of potential security breaches. Firstly, the inmate could have used the phone to communicate with outside parties for nefarious reasons. Secondly, the security of other inmates or supervisory personnel may be comprised if certain information was passed on during the phone conversation. Finally, upon seeing one inmate receive a ‘special privilege’ other inmates in the Unit could respond in an aggressive manner thereby compromising the health and safety of all those in the secured unit.

84Given the extremely serious nature of the situation, Counsel stated it was imperative for the Complainant to verbally advise his Employer immediately or, at the least, submit a formal report in an “expeditious and timely manner” to his supervisor. This requirement, Counsel submitted, is a Ministry requirement that is clearly communicated to those employed in a managerial position including the Complainant.

85However, in the opinion of the Employer and in contrast to the evidence of the Complainant, he failed to adhere to his reporting responsibilities. The Employer submitted that the evidence demonstrated that the Complainant did not immediately file the requisite Occurrence Report during or at the conclusion of his shift.

86The Employer challenged the Complainant’s submission that he reported or made efforts to report the incident on February 23, 2018. The Employer submitted that there was no email chain between the Complainant and Staff Sergeant Graham on February the 23rd, which purported to report the incident. Counsel submitted that even if the Complainant had somehow informed Graham of the situation that notice would not alleviate the Complainant from his responsibility to file a properly completed Occurrence Report in a timely fashion.

87As in the previous matter involving the one-day (8 hour) suspension, the Employer stressed there is a significant responsibility placed upon those in Management to report incidents, particularly those that involve serious misconduct, immediately. In this instance, Officer Emery had committed a serious violation of policy by allowing an inmate access to his personal cellular phone. The Complainant did not take the necessary steps to alert his supervisors about the nature of the incident. Further, he failed to file an Occurrence Report until directed to do so by Staff Sergeant Jones on the day after the incident.

88Counsel for the Employer stated that the Complainant did not demonstrate that he understood the severity of the situation and therefore discipline was required. A three-day suspension was well within the reasonable range of penalty given the Complainant’s breach of his reporting requirement. Again, Counsel submitted that the Employer would have been well within its rights to impose a far more severe penalty.

89Finally, Counsel submitted that the Complainant’s behaviour in this matter concerned the Employer for another reason. Counsel submitted that the Complainant’s delay in filing the Report might be construed as an attempt to “cover up” Emery’s behaviour. The Employer expressed a concern that this might represent the invocation of what is referred to as the “Code of Silence” that allegedly appears when the discipline of an Officer or Officers arises. The theory is that staff will delay or obfuscate reporting the infractions of fellow staffers in order to “protect them” from discipline. Discipline, therefore, in this matter was necessary in order to send a message to the workplace that such behaviour will not be tolerated in any manner.

90For all of the above the Employer submitted that the Board dismiss the complaint.

91The following authorities were submitted for my review: Bazger v Ontario (Community Safety and Correctional Services), 2017 CanLII 25423 (ON PSGB); Dyson v Ontario (Community Safety and Correctional Services), 2014 CanLII 8245 (ON PSGB); Eden v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 37; Novenco Canada Inc. and USWA, Local 2931, Re, CarswellOnt 5493.

III. - Decision - Three Day (24 hour) Suspension – Board File P-2018-1987

92The Complainant submits that the three-day (24 hour) suspension imposed upon him by the Employer is undeserved. The Complainant submits that he followed the workplace policies with respect to submitting an Occurrence Report with respect to the February 23, 2018, incident at Unit 10C Wing. The Board disagrees with the position of the Complainant for the reasons discussed below.

93Having reviewed the submissions and the documents provided by the parties I must agree with the decision taken by Employer. The seriousness of the incident combined with the Complainant’s failure to report the matter in a timely manner to his superiors warrants a three day (24 hour) suspension.

94The Complainant knew, or should have known, that a potentially serious situation existed when he was first called to meet with the ‘Unit Server” at Unit 10C Wing. The inmates had refused to return to their cells because of a dispute about a ‘phone’. Although the Complainant believed that the “confusing incident” had been resolved, he was still required to file a report describing his interaction with the inmates. The requirement to file a report is set out in the “Correctional Services Statement of Ethical Principles”, the “Standing Orders – Requirements for Incident Reporting” and the “Inmate Incident Reporting Manual”. These are all policies and directives that the Complainant is familiar with in his role as a Staff Sergeant. The absence of a report quickly became a contentious issue when Staff Sergeant Jones telephoned the Complainant at home. Jones enquired as to why no report had been submitted on the previous day about this encounter and specifically demanded that one be submitted forthwith.

95The Complainant certainly was aware that the matter was extremely serious when Officer Dale revealed that she had observed Officer Emery allowing an inmate access to his personal cellular device. The Ministry Policy guidelines, at Part C, states:

6.1 All Correctional Services employees, visitors, volunteers and contractors are prohibited from possessing and/or using personal electronic devices within the secure area of an institution.

96As Counsel for the Employer submitted, the use of a personal cellular device by an inmate in a secured area could result in extremely negative outcomes. The security of the institution could be compromised or intimate information about other inmates or staff could be passed on to outside sources. The Complainant, in his evidence, acknowledged that the potential for such a result did exist.

97The seriousness of the situation was heightened by the fact that the cellular phone used by the inmate was the property of Commanding Officer Emery. Officer Dale identified Officer Emery to the Complainant as the individual who provided the inmate with the cellular device. The Complainant interviewed Emery who he instructed to complete an Occurrence Report that he completed later that day. Officer Dale also filed a report and forwarded it to the Complainant.

98The Complainant acknowledged that he received both reports from Dale and Emery at different times during the afternoon. He also submitted that he forwarded a report to Staff Sergeant Graham. He further submitted that he left a message with Graham but conceded that Graham might not have been able to understand the message because the Complainant had a case of laryngitis at the time. The Employer denies that any written report allegedly authored by the Complainant reached Graham for his review. Further, the Employer denies that Sergeant Graham received an oral report of the situation from the Complainant.

99I prefer the evidence of the Employer to that of the Complainant with respect to this factual dispute. The Complainant was unable to provide the Board with any evidence as to an email chain between himself and Staff Sergeant Graham. As for the alleged telephone message, I find that the Complainant’s explanation surrounding the oral message problem. However, even if either or both of the assertions were true reporting to Sergeant Graham does not diminish from the fact that he failed to follow the established process for filing a timely Occurrence Report to the designated authority.

100The exchange between the Complainant and Staff Sergeant Jones on February 24, 2018 and the Complainant’s uncontradicted interview summary with Superintendent Frankovich on February 25 and March 9, 2018, establish that the Complainant did not file an Occurrence Report with his supervisors on February 23, 2018. He did not file an Occurrence Report until ‘prompted’ to do so by his supervisors. This delay in filing clearly violates the Ministry Policy that places a heavy responsibility on Supervisors to expeditiously file an Occurrence Reports in matters such as the one before the Board.

101Ministry Policy clearly sets out the reporting requirements of the current factual situation before the Board. These fall within the “Standing Orders” and are defined as Priority 1 or Priority 2 Incidents.

102It is clear that, at the very least, that the MCSCS’s “Requirements for Incident Reporting” required the Complainant to file an Occurrence Report by the end of his shift. He did not do so. The failure to do so constitutes a violation of the Policy and subjects him to potential discipline.

103The “Requirements for Incident Reporting” do not, contrary to the Complainant’s statements, provide for any “managerial discretion” as to when a Sergeant might file a report. His suggestion that he wanted to take some time to review the situation and ensure that there was no rush to judgment was, at best, a flawed and misinformed exercise of judgment. He was required to follow policy and alert his Superiors in a timely fashion but failed to do so.

104The Complainant failed throughout the proceedings to demonstrate an appreciation of what his responsibilities as a Sergeant were in this situation that arose on February 23, 2018. He adapted an informal approach to the application of his workplace responsibilities. He chose not to comply with policies that as a Sergeant he was aware of at the time. I agree with Counsel for the Employer that this behaviour falls below the standard expected of a Sergeant.

105I have reviewed the authorities provided to me by Counsel for the Employer. They collectively speak to the proposition that the penalty imposed upon the Complainant was reasonable and, further, that the Employer would have been well within its right to impose a far more significant suspension.

106I disagree with the Complainant that it would be appropriate to substitute a lesser penalty because the Employer has failed to apply the principles of progressive discipline. The behaviour of the Complainant in this matter was such that a three-day suspension is reasonable and fair. His failure to report in a timely manner was a significant breach of Ministry Policy. The Employer is not obliged to impose arguably the lowest form of discipline, for example a written warning, when the behaviour in and of itself is so egregious.

107I would, in conclusion, turn to the Employer’s concern that the workplace “Code of Silence” might be in play in this matter. While I appreciate the submissions made on this issue and why some of the evidence surrounding this incident is cause for concern, I cannot conclusively determine that the behaviour of the Complainant was motivated by an attempt to “cover up” for Emery.

108The Complainant should appreciate that the response of the Employer is a strong signal that he must comply with all reporting requirements in the future. Failure to do so will only result in a more significant form of discipline.

109For all the above reasons I dismiss the complaint.