FPSLREB Decisions

I. Issues before the adjudicator

1 This is a decision about two issues. First, did the Correctional Service of Canada (“the respondent”) have just cause to impose a four-day financial penalty against the grievors, James Stead and Vincent Weda, for wilfully or negligently making false statements in the performance of their duties? Second, was the "stepping down" in classifications of the grievors from the positions of CX-02 to CX-01, for the same incident as the incidents giving rise to the financial penalties, an administrative or disciplinary action?

II. Summary of the arguments

2 The respondent submits that there was just cause for imposing the four-day financial penalty. The grievors worked in the segregation unit of a maximum security institution in acting supervisory positions. Mr. Stead was the officer in charge at the time. As a result of an electrical failure that caused a problem with the cell locks during the grievors' shift, one inmate was allowed to enter the cell of another inmate and remain there for some time. One of the inmates ended up with physical injuries. The two inmates in one cell and the injury to one of them was discovered at the beginning of the shift after the grievors left work. At the end of their shift they had signed a document that stated that all inmates were present and that all doors and barriers had been checked and locked in accordance with standing orders. This required a formal count of inmates and a confirmation of the location of inmates and signatures of the officers doing the count. In fact, a count had not been done. The grievors signed the count slips knowing they had not been done to facilitate everyone getting home at the end of the shift. Mr. Weda signed a second count slip that he did not conduct the count for. According to the respondent, this justifies the four-day financial penalty.

3 With regards to the stepping down of the grievors, they had been working as acting correctional officers 2 (CX-02) with some supervisory duties. Following the incident with the count the respondent stepped them down to their substantive or regular position of correctional officers 1 (CX-01). The respondent submits that it was responding to immediate security issues and for administrative reasons. Since they were administrative decisions, according to the respondent, there is no jurisdiction under the Public Service Labour Relations Act, S.C. 2003, c. 22, ("the Act") for an adjudicator to interfere with them.

4 For their part, the grievors accept that they erred when they signed the count slip(s) knowing the count or counts had not been done. It is submitted on behalf of Mr. Weda that he worked a long 16-hour shift and he suffered from some personal issues that caused him stress, including post-traumatic stress disorder. In the case of Mr. Stead, he testified that he was subject to a no-contact direction from the respondent as a result of an unrelated threat from inmates. For that reason he could not go on the ranges or conduct a count. The grievors accept that some discipline is justified in the circumstances but they challenge the four-day financial penalty and the stepping down in classification. They submit that a one-day penalty would be an appropriate penalty.

5 In support of their submission that the penalties against them should be reduced, the grievors rely on their immediate acceptance of responsibility for their error with the count slips. Mr. Stead also took the initiative of asking for an immediate meeting with the warden for this purpose. During this meeting they accepted responsibility for the count slips and they apologized for their errors. The respondent acknowledges the significance of this.

6 With regards to the stepping down of the grievors, they point out that this took place immediately after the incident and they assumed that was the end of the matter. This was discipline, in their view, because it meant a loss in pay and a change in shift and rest days. The four-day financial penalties happened some months later and the grievors were surprised that they received this penalty as well as the stepping down. They consider the stepping down to be a disciplinary penalty and they object to being subject to it and the financial penalties.

III. Background

7 The respondent operates correctional services across Canada. The events giving rise to these grievances took place in the segregation unit at Kent Institution in Agassiz, British Columbia, on January 9, 2009.

8 Kent Institution is a maximum security institution and the segregation unit is where high risk inmates are kept. In the unit there is a correctional manager but he works during the days from about 0700 hours to about 1500 hours. There can be eight correctional officers on duty, as there was on January 9, 2009. There were four acting CX-02s on that day, including the grievors. Shifts can be 8, 12 or 16 hours depending on individual assignments and operational needs. A high level of security is the norm at all times in the segregation unit and there is one inmate in each cell.

9 Mr. Stead has been a correctional officer since November 2006 and he worked as an acting CX-02 from April 2008 until he was stepped down from that position to a CX-01 position in January 2009. Mr. Weda has been a correctional officer since August 2004 and he worked as an acting CX-02 from July 2007 to January 2009. He received a "Certificate of Appreciation" in April 2008 from the warden of Kent Institution when he was first on the scene to provide assistance when another employee's vehicle slid down an embankment. Neither grievor had any discipline prior to the discipline in this case. Both grievors testified that they had never been given any training as CX-02s and they had never been given or seen a job description for the position. On January 9, 2009, Mr. Stead had been directed by the respondent not to go on the ranges because of a security threat from inmates unrelated to this adjudication (and which occurred in the normal course of his duties).

10 Correctional officers are subject to a number of directives, policies and orders.

11 There is a "Code of Discipline" in the form of Commissioner’s Directive 060 (dated "1994-03-30"). I reproduce the relevant parts of that directive as follows:

…

PROFESSIONAL STANDARDS

Responsible Discharge of Duties

5.  Staff shall conduct themselves in a manner which reflects positively on the Public Service of Canada, by working co-peratively to achieve the objectives of the Correctional Service of Canada. Staff shall fulfill their duties in a diligent and competent manner with due regard for the values and principles contained in the Mission Document, as well as in accordance with policies and procedures laid out in legislation, directives, manuals and other official documents. Employees have an obligation to follow the instructions of supervisors or any member in charge of the workplace and are required to serve the public in a professional manner, with courtesy and promptness.

Infractions

6. An employee has committed an infraction, if he/she:

…

j. wilfully or through negligence, makes or signs a false statement in relation to the performance of duty;

…

12 Subsection 6(j) of the Code of Discipline was the basis of the respondent's decision to impose four-day financial penalties against the grievors in this case. That is, the respondent alleges that, by signing the count slips knowing there had not been a count, they had wilfully or negligently made a false statement.

13 There is an older document that discusses discipline, dated November 1994, and titled, "A Guide to Staff Discipline and Non-Disciplinary Demotion or Termination of Employment for Cause." Brian Zimmerman, President of the Kent Institution local of the Union of Canadian Correctional Officers - Syndicat des agents correctionnel du Canada - CSN ("the bargaining agent"), testified that he regularly and recently used this document in discussions with the respondent about discipline. He emphasized the reference in that document to "timely" discipline and that it states "[e]xcept in unusual circumstances, the disciplinary action should be taken within one month of the infraction." However, Diane Knopf, the warden at Kent Institution in January 2009, testified that this document had been discarded some time ago and she could not remember when it had last been used.

14 There is also an employer document of the respondent's titled "Global Agreement" and it is, according to the preamble, "… intended to clarify the application of certain provisions …" of the collective agreement in a number of areas including "Disciplinary Measures" (Part III). Division III-A is titled "Discipline" and it states that the respondent will apply a one-day financial penalty for a first offence, a two-day penalty for a second offence and so on. The grievors rely on this document for their submission that they should each receive a one-day penalty rather than the four-day penalty imposed by the respondent. On the other hand, the respondent points to another provision in Division III-A (section 3) that states the "graduated scale does not apply" in "the case of severe misconduct" and, in that type of case, the respondent may impose a four-day financial penalty.

15 There are "Post Orders" (KP08-24.01, dated "2008-10-28") that apply specifically to Kent Institution. There is a specific reference to segregation (previously the "J-Unit") as follows:

J-UNIT (SEGREGATION) POST

The officers assigned to duty at the J-Unit office under the general direction of the Correctional Manager (Units), Correctional Manager (Desk) and direct supervision of the CO-II in charge of Segregation Unit [sic]. The Correctional Officer II assigned to the desk is to be assigned as the “Officer in Charge” and is responsible for the completion of the security patrol/range walks and all compliance issues within segregation for the duration of their shift.

The CO-II in Charge of Segregation will immediately advise the Correctional Manager Segregation, or in his absence the Correctional Manager (Desk), should there be a potential for a use of force.

16  The Post Orders also state that a correctional officer is to "[e]nsure counts are conducted as required and in accordance with Kent Standing Order 566-4." The subject of "Standing Order 566-4" (dated 2008-11-19) is "Counting of Inmates" and it includes the following definitions:

…

DEFINITIONS

3. Informal Count: A process by which each inmate is counted individually without interference of activities in that area. A count slip may not be required and the count shall be confirmed by telephone.
4. Formal Count: A process by which each inmate is counted individually, with no movement allowed and results in an official record which is maintained. Two officers shall conduct a formal count together. A count slip signed by two officers is required.
5. Stand-To Count: Is a formal count which requires the inmate to present himself clearly to two officers by placing himself in a visible standing position on the floor within the cell facing the open door, which ensures that staff can visually identify the inmate and his physical condition. In certain cases, inmates may not be able to stand to for count due to medical conditions or physical limitations. These conditions shall be identified by the Chief of Health Services. A count slip signed by two officers is required.
6. Emergency Count: Is a stand-to count in which all inmates, regardless of work location or previous authorization, are returned to their respective living unit to be accurately identified by Name and FPS#. An emergency count slip signed by two officers, which indicates the inmates’ cell location and verification is required.

…

17 Standing Order 566-4 also sets out the following responsibilities of officers:

RESPONSIBILITIES

7. Under the direction of the Warden or delegate, the Officer-In-Charge of the institution shall ensure that all inmates, as listed on the count register, are accounted for and/or present.
8. A completed double-signed count slip must be presented to the Central Control Officer at the time of the count for all inmates, regardless of their location. The completed count slip shall then be attached to the master count slip to form a complete package. The completed package will then become part of the Correctional Manager (d) shift report.
9. Signatures on count slips must be legible, and if necessary, the officer’s name must be printed along with the signature.
10. The Officer-In-Charge shall ensure staff identify and count each inmate in their charge by verifying that only completed count slips are accepted at Central Control, bearing the signatures of two officers.
11. The Correctional Manager (d) shall certify that all formal, stand-to, and name counts are correct by tabulating the results before signing the master count slip.
12. Every staff member having inmates under his/her supervision shall account for those inmates at all times.

18 As well, Standing Order 566-4 includes the following directions about security patrols and range walks:

SECURITY PATROL/RANGE WALK

43. A security patrol/range walk is a controlled walk‑through of a specific area. The officer is required to be alert to: any and all unusual circumstances, the well being of all inmates and staff in the area, and ensures all security devices are functioning as per normal. Sufficient time is to be allocated to ensure that accurate observations are made. It is essential that staff ensure that they can identify a living, breathing body at all times. Where applicable, interior or exterior control posts shall be notified prior to commencement of the security patrol and these posts will monitor the presence of the officer conducting the security patrol.

44. A security patrol/range walk shall be conducted in all living units at the minimum of once per hour. All areas of the living unit, including common areas, program areas, and individual cells, are to be visually inspected.

45. Security patrols/range walks are to be done in an irregular manner that does not follow both a physical or timing pattern, which can be predicted as to when they will be done.

19 These orders and policies are the subject of training of correctional officers, including the grievors.

20 From time to time, security bulletins are issued by the respondent and sent to officers by email, or they are put in the mail boxes of officers or posted on bulletin boards. Sometimes more than one way of distributing bulletins is used and they can be the subject of oral briefings by supervisors as well. On June 24, 2008, the following bulletin was issued titled "CLARIFICATION to Rounds and Counts Bulletin" and it referred to a December 2007 bulletin (which was not entered in evidence). I reproduce the relevant parts of the 2008 bulletin as follows:

…

In relation to the Security Bulletin issued in December 2007 on the subject of Rounds and Counts, the bulletin serves to provide clarification.

Specifically, the December bulletin was not intended to prescribe timeframes to conduct range walks or to limit the staff member’s ability to conduct a proper range patrol with no latitude for other activities on the range.

The intention was to ensure that when range patrols and counts are conducted that you are satisfied the duties were conducted with due regard for the requirements to ensure a live breathing body is in the cell/unit and that the patrol also includes the elements listed in the bulletin.

It is my understanding that some sites have enlisted specific timeframes to conduct range walks and that was not the intent of this bulletin.

I trust this provides some clarity to the situation.

…

21 Mr. Stead testified that he "may have seen [the bulletin] before"; Mr. Weda testified that he had not seen it and it probably was sent when he was away from work.

22 It appears to be agreed that the counting of inmates is a very significant part of the daily responsibilities of correctional officers. Ms. Knopf, the warden of Kent Institution in January 2009, testified that counts were "fundamental" to the operation of a prison. As well, in order for counts to be effective it is important that their timing not be predictable for the inmate population. Therefore counts are not done at regular times. And, as described above in Standing Order 566-4, there are informal counts as well as stand-to counts. In addition, officers conduct range walks where they observe inmates but their observations are not generally recorded. The overall objective is to ensure that "… a living, breathing body is visibly seen, that the condition of the inmate is seen to be normal and that the identity of the inmate has been confirmed", as described in Standing Order 566-4.

23 A formal count of inmates is recorded on a count slip. Two signatures from correctional officers are required and the signatures are given with the following certification: "We certify that all inmates were present and all required doors, windows and barriers were checked and locked in accordance with Standing Orders." The grievors admit signing this document on January 9, 2009, knowing that a count had not been done and there was a second document signed by Mr. Weda. The practice is that once a count is completed, the slip is signed and the count is telephoned to a central desk where it is tabulated. The slips are also physically taken to the desk to provide a written confirmation of the count. Staff at the desk complete the task of checking all the counts from the different units and announce over the speaker system whether the count is good or not. If the count is good that means all inmates have been accounted for and the process is complete.

24 If the count is not good then it has to be re-done until it is correct. In some cases, as contemplated by Standing Order 566-4, there can be an emergency count that requires all inmates to return to their living units to be accurately identified. The last count of a shift is usually significant for staff because they are not able to go home until the count is correct and, as will be seen, that is an issue in these grievances.

IV. Events of January 9, 2009

25 On January 9, 2009, the grievors were working as acting CX-02s in the segregation unit at Kent Institution. Their shift ended at 22:40 hours that day. The regular routine of the shift included feeding and showering the inmates, managing legal calls, arranging interviews with doctors and lawyers, arranging for attendance at disciplinary hearings and other matters.

26 Mr. Stead was an acting CX-02 and the officer in charge of that shift with the responsibilities described in the Post Orders above. This meant that much of his time was taken up by paperwork in the segregation unit office. He testified that he had never seen a job description for the CX-02 position until this adjudication. Mr. Stead, as a result of a previous security threat unrelated to this adjudication (and in the normal course of his duties), was not entering or walking on the ranges. He explained in his evidence that he understood there had been a threat made against him and he was to stay off the ranges until it could be assessed. He was not told the details of this threat then or later.

27 Mr. Weda testified that he was also an acting CX-02 that day but he had never received any training for the position and he also had never seen a job description for the position. On January 9, 2009, he was working a 16-hour shift, from 06:30 to 22:40 hours. In his evidence he said that, as a CX-02, he "had no influence over other officers, if they had questions I would answer them." As well, in January 2009, he had been going through “some personal problems,” including some leave for stress reasons, because he had been involved in a situation where an inmate had harmed himself. He described this as post-traumatic stress syndrome that resulted after an incident when an inmate self-harmed. Mr. Weda believed he had not done enough to prevent it; in his words, it prevented him from “doing my duties fully.”

28 The critical events took place between 14:31 hours and 22:58 hours on January 9, 2009. These are described in detail below but, in summary, an electrician was repairing the electrical system in the segregation unit and this caused an error in the locking system. At least two cell doors inadvertently opened. The error had nothing to do with the grievors and they did not know about it at the time. I will identify these two cells as "Cell A" and "Cell B". When the doors opened, the inmate in Cell A left his cell and walked into Cell B, which was occupied by another inmate. There is no dispute this was a security problem and contrary to the safe operation of a maximum-security institution. The electrical error was repaired and the cell doors closed again after a short period of time, leaving the two inmates in Cell B.

29  A number of hours passed and the fact of two inmates being in one cell was not discovered. The records that are in evidence from the shift indicate that counts were done at 17:50 and 22:00 hours but neither count identified the two inmates in Cell B. A count slip was completed at 22:40 hours. Mr. Weda accepts that he signed the 17:00 hours count and the 22:00 hours count slips but he did not conduct the counts. Mr. Stead accepts that he signed the 22:40 hours count slip and he did not conduct a count. In cross-examination he explained that the slip already had one signature, "everyone was heading out the door" and "I just signed it." He agreed this was a serious offence and amounted to fraud. In cross-examination he also said that he believed that his role in the incident involving the two inmates was not serious.

30 The shift ended at 22:40 hours. At 22:58 hours a member of the new shift responded to a call from Cell B, where there was still the two inmates, instead of one. One of the inmates had puncture wounds to the abdomen and bruising in the face. At first the injuries were thought to be serious and, because the Health Services Department in the institution was closed at the time, the injured inmate was sent to an outside medical facility. In the end it was determined that the inmate did not suffer “serious bodily injury” as that term is defined in the respondent’s policies. In cross‑examination, Ms. Knopf agreed the injuries to the inmate's abdomen were "superficial." Further details about this incident are below.

31 The grievors testified that they were telephoned at home after they left work on January 9, 2009 and they were advised of the injury to the inmate in Cell B. Both grievors testified that they were very upset at this news. Mr. Stead said he was "horrified" and Mr. Weda said he "felt like he failed the service and my peers."

32 Mr. Stead took it upon himself to organize a meeting of the officers who had been on shift on January 9, 2009 with the warden at the time, Ms. Knopf. Mr. Stead testified that he realized that the warden “would want some answers” from the officers. He decided that the officers needed to tell the warden what they did “and offer ourselves up” as a way to communicate to the warden that they did not wish to see this repeated. The meeting took place on January 12, 2009 with both grievors and the other correctional officers in attendance. At the meeting Mr. Stead spoke for the officers and he said that he signed the slip for the 22:40 hours count and he admitted that he did not do the count. He assured the warden that he and the other officers understood the gravity of the situation, he apologized and he stated it would not happen again. At the officers' suggestion, there was no union representation present at this meeting.

33 On January 12, 2009 the acting assistant warden, Don Utley, wrote to both grievors as follows:

ADMINISTRATIVE ACTION

On January 9, 2009, two inmates, one of whom had sustained injuries, were found to have been occupying a cell in Segregation following two consecutive counts.

As a result of this incident, I am stepping you down to your substantive position as a Correctional Officer I, effective January 12, 2009, until the matter can be reviewed.

You will be placed back in the Correctional Officer I shift rotation.

If you have any questions or concerns, please do not hesitate to discuss them with me.

34 Mr. Utley testified that the decision to step down the grievors resulted from a conclusion by management staff that something had gone wrong in the segregation unit on January 9, 2009. The grievors were the acting CX-02s at the material times, the respondent was "not exactly sure what went wrong … but they were responsible for the area," as Mr. Utley put it in his evidence.

35 The grievors testified that they took the respondent's decision to step them down to be, as Mr. Stead put it, "a consequence of my actions" and "okay, I have been stepped down" for not doing the count and signing the slip. Mr. Stead considered it disciplinary and he believed that it ended the matter. Mr. Weda testified that he too thought that the stepping down was his "punishment" and the end of the matter. In cross-examination he was asked if there could have been any other reasons for the stepping down and he replied that "it did not seem feasible" that there were other reasons.

36 The grievors were re-assigned to their substantive positions as CX-01s. They point out that their duties in that position included counts and range walks and they were not subject to increased supervision or new training. In the case of Mr. Weda he was assigned to another acting CX-02 position for one day, in March 2009. He did not request this assignment and he completed the one day in the acting position satisfactorily, including counts and range walks. Pierre Bouvier, a corrections manager, testified for the respondent and said that he placed Mr. Weda in this position based on his seniority and he did not know that Mr. Weda was not to be assigned to acting CX-02 positions. The grievors submit that they could have been re-assigned to other CX-02 positions within Kent Institution, rather than being stepped down to the CX-01 level. And, the grievors submit that stepping down resulted in a financial penalty for them.

37 The respondent then put in place a process to investigate the events of January 9, 2009. Two senior members of the correction service from other institutions were assigned to conduct this investigation. On January 21, 2009, the grievors were advised of the disciplinary investigation and they were told that the reason for the investigation was as follows:

Disciplinary Investigation

This is to advise that a Disciplinary Investigation has been convened to establish the facts surrounding your contravention of CD 566-4, Post Order KP08-24-1, Standing Order 566-4, the Standards of Professional Conduct and the Code of Discipline on 09-01-09 by:

• Failing to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO 566-4.
• On 09-01-09 at 2300 hrs, JK staff informed the CM Office that two inmates were discovered in cell [number of cell deleted] when responding to a cell call. When one of the inmates was removed from [number of cell deleted] to be returned to his own cell [number of cell deleted], staff noticed blood stains on the back of his T shirt as well as some swelling on his face. The inmate was taken to outside hospital for assessment due to stab like [sic] wounds on his back.

The Investigating Officer will be contacting you.

An investigation hearing took place on January 21, 2009 and all of the correctional officers on shift on January 9, 2009 were interviewed.

38 The report of the investigating team is dated February 16, 2009. It was accepted by all parties as being an accurate description of the events of January 9, 2009, with some minor qualifications. For example, Ms. Knopf, the warden at the time, testified that the report did not provide great detail and it included some typographical errors, but it was otherwise accurate.

39 I reproduce large parts of the February 16, 2009 report as follows (I have anonymized the names of some individuals who are not directly involved in this adjudication and I have anonymized the numbers of the cells):

Introduction:

On January 9^th, 2009 at approximately 2258 hours staff responded to a cell call from [Cell B]. Upon arrival to [Cell B] two inmates, [X] and [Y] were observed in the cell. The floor walker immediately exited the area and confirmed on the count board that only inmate [X] should be in the [Cell B] and inmate [Y] should be in [Cell A] which was currently empty. Upon reviewing the video on the range it was discovered that inmate [Y] entered [Cell B] at approximately 1341 hours when both cell doors were inadvertently opened for a brief moment and closed.

After reviewing the video, and the 1750 and 2240 hour count slips, A/Deputy Warden [H] convened a Disciplinary Investigation on January 21^st, 2009, appointing [I] and [J] to the Board of Investigation.

The convening order directs the Board of Investigation (BOI) to establish the facts surrounding the allegations that on January 9^th, 2009, Correctional Officers; CX-01 [A]; CX-01 [B]; CX-01 [C], CX-01 [D]; CX-01 [E]; CX-01 WEDA; CX-01 STEAD and CX-02 [F],

• Failed to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO566-4 on 09-01-09

Interviews:

In order to investigate the allegations in the convening order, the following officers were interviewed:

• A/CX-02 [A], on 2009/01/30
• CX-01 [B], on 2009/01/30
• CX-01 [C], on 2009/02/03
• CX-01 [D], on 2009/01/26
• CX-01 [E], on 2009/01/30
• CX-01 WEDA, on 2009/01/30
• CX-01 STEAD, on 2009/01/30
• A.CX-01 [F], on 2009/01/30

Letters were provided to each officer, informing them of the interview with 48 hours advance notice (copies attached to annex). A letter could not be provided to Officer [D] in order to give 48 hours advance notice because he was leaving on vacation the next day and would be unavailable and delay the process. Thus, he agreed to be interviewed and waived the 48 hour notice, with Officer [G] as his employee representative from the union. Officer ZIMMERMAN was the employee representative for all the other officers interviewed. The BOI found the employee representatives to be very professional and helpful to the process. They also assisted the BOI in coordinating the interviews in a timely manner.

Documents:

The BOI reviewed the following documents and video surveillance data to gather information relevant to this investigation:

• OMS incident report 2009028731
• Count slips for J and K Unit dated 2009-01-09 1750 hours
• Count slips for J and K Unit dated 2009-01-09 2240 hours
• J/K Log Book dated 2009-01-09
• Post Order KP08-24-01
• Standing Order 566-4
• Electronic Round Activity Report, 09-01-09
• Video Surveillance (CD format) for K-201-207 for 09-01-09

Staff Profiles:

1. [A], A/CX-2

…

2. [B], CX-1

…

3. [C], CX-1

…

4. [D], CX-1

…

5. [E], CX-1

…

6. WEDA, CX-1
He was hired on 2004-08-28.
He has completed two acting CX-2 assignments. He was acting on 09-01-09.
Recent PER indicates objectives met or exceeded all of the time.
He does not have any discipline on file.

7. STEAD, CX-1
He was hired on 2006-11-25.
He was an acting CX-2 from 2008-09-09 through 2009-01-13.
Recent PER indicates objectives met most of the time.
He does not have any discipline on file.

8. [F], CX-1

…

Chronology:
2009-01-09

1342 hour	[Y] enters [X]’s cell, [Cell B] undetected.
1450 hour	The Segregation logbook shows a completed round. The Silver Guard data printouts show the last round was completed at 1450 hour. Video surveillance of the [name deleted] range shows Officer [B] conducting the round and delivering mail. He only looks in cells he is delivering mail to.
1545 hour	The Segregation log book shows a completed round. Video surveillance of the [name deleted] range shows Officers [E] and [C] looking in each cell including [Cell A] and opens the food slots. Officer [E] carries the data collector.
1645 hour	The Segregation logbook shows a completed round. The Silver Guard data collector printouts show the last round was completed at 1658 hour. Video surveillance of the [name deleted] range shows Officer [B] conducting this round. [B] walks down the middle of the range without ever looking in a cell.
1750 hour	The Segregation logbook shows the formal count completed at 1750 hour. The Silver Guard data collector printouts show the last round was completed at 1744 hour. Video surveillance of the [name deleted] range shows Officers [E] and [C] conducting the count and round. Officer [C] looks in all the cells. Officer [E] does not appear to look in any of the cells. The count slip is signed by WEDA and [C].
1845 hour	The Segregation logbook shows a completed round. The Silver Guard data collector printouts show the last round was completed at 1844 hours. Video surveillance of range [name deleted] shows Officer [B] conducting this round. [B] walks straight down the range and back without ever turning his head or looking into any cells.
1945 hour	The Segregation logbook shows a completed round. The Silver Guard data collector printouts show the last round was completed at 1948 hours and also indicates that the [name deleted] range was missed. Video surveillance of the [name of range deleted] range shows Officer [B] conducting this round. During this round [B] delivers mail to several cells including [Cell A]. He slides the mail under the door and never looks through the cell windows.
2040 hour	The Segregation logbook shows a completed round and indicates the data Collector was not available. The Silver Guard data collector printouts do not show a round for this period of time. (The range lights were not turned on during the round and Video cameras are not equipped with night vision. Subsequently the image is blacked out and unable to identify the officer doing the round or observe how it is being conducted.)
2130 hour	The Segregation logbook shows a completed round. The Silver Guard data collector shows that the last round was completed at 2130 hours. (The range lights were not turned on during the round and Video cameras are not equipped with night vision. Subsequently the image is blacked out and unable to identify the officer doing the round or observe how it is being conducted.)
2240 hour	The Segregation control post logbook shows the count correct. The Silver Guard data collector printouts show the last round completed at 2220 hours. (The range lights were not turned on during the round and Video cameras are not equipped with night vision. Subsequently the image is blacked out and unable to identify the officer doing the round or observe how it is being conducted.)
	Officer [A] confirmed to the BOI that he conducted this count by himself. He does not fill out or sign the count slip which is signed by Officers WEDA and STEAD.
2258 hour	The floorwalker responds to a cell call in [Cell B] and discovers another inmate, [Y] in the cell with inmate [X].

Policy:

Kent Institution’s Post Order, KP08-24-01 for Segregation Unit was reviewed and identifies the officer assigned to the desk as “In-Charge” and responsible for completion of the Security Rounds and all compliance issues.

The Standing Order #566-4 Counting of Inmates is the main document the BOI referred to regarding the policy for conducting proper range walks and Institutional Counts.

The following are key policy requirements from Standing Order 566-4 which the BOI is considering when assessing the allegations being made against the officers in the convening order:

Counts:

• “Formal Counts: A process by which each inmate is counted individually, with no movement allowed and results in an official record which is maintained. Two officers shall conduct a formal count together. A count slip signed by two officers is required.”
• “Two officers shall, together, conduct all formal counts.”
• “Signatures on count slips must be legible and if necessary the officers’ names must be printed along with the signatures.”
• “Officers shall independently complete their respective counts. They shall compare their tally, and if in agreement, complete the appropriate count form, and will phone in the count to Central Control. The appropriate count form is to be signed certifying that all inmates are accounted for and present.”

Rounds:

• “A security patrol/range walk is a controlled walk-through of a specific area. The officer is required to be alert to: any and all unusual circumstances, the well being of all inmates and staff in the area, and ensures all security devices are functioning as per normal. Sufficient time is to be allocated to ensure that accurate observations are made. It is essential that staff ensure that they can identify a living, breathing body at all times. Where applicable, interior or exterior control posts shall be notified prior to commencement of the security patrol and these posts will monitor the presence of the officer conducting the security patrol.”
• “A security patrol/range walk shall be conducted in all living units at the minimum of once per hour. All areas of the living unit, including common areas, program areas, and individual cells, are to be visually inspected.”

Analysis:

At approximately 1431 hours on January 9^th, 2009 an electrician was working on the control panel in the J/K control post and inadvertently opened cell doors; [Cell A] and [Cell B]. Inmate [Y] in [Cell A] exits his cell and walks into [Cell B] with inmate [X]. Officer [D], who was working the control post, noticed the lights on the panel indicating the two cell doors were opened. He immediately looks down the range and sees no inmates on the range and subsequently closes the cell doors. It is not until 2258 hours when a cell page from [Cell B] is received and staff are alerted to the situation.

Officer [F] was the “Officer in Charge” of the shift and in accordance with Post Order KP08-24.01 is responsible for the completion of the security patrol/range walks and all compliance issues within segregation for the duration of their shift. However, at approximately 1400 hours Officer STEAD was directed by A/CM [K] to run the desk because he was not to have inmate contact. Thus, for the time in question, Officer [F] has no accountability for the rounds and counts during that time. Officer STEAD was accountable and stated that he ensured that the rounds and counts were completed and recorded them in the log book. Officer STEAD and Officer [F] both stated that they cannot be accountable for the manner in which the rounds and counts are conducted by other officers when they are out of their line of vision.

In reviewing the video of the [name deleted] range for 2009-01-09 from 1400 hours to 2300 hours CX-01 [B] is observed conducting the rounds at 1645 hours, 1845 hours and 1945 hours. During these times he is observed walking directly down the middle of the range and does not look into any cell. When questioned by the BOI he stated he was having a bad day and could not offer any reasonable explanation, indicating that he was aware of the need to look into cells and ensure the well being of each inmate. CX-01 [B] admits his error and stated that this was not indicative of how he normally conducts rounds and will not repeat this error in the future.

In reviewing the video for the 1750 hour official count and round, officers [E] and [C] are observed doing these duties. Officer [C] is more visible in doing the count using a flashlight and kicking one of the doors, while Officer [E] is not seen looking directly in all the cells.

It was reported to the BOI that in many cases during counts and rounds the inmate is staring right out the door window and an officer can easily see the inmate without having to go up and look in the cell. However, on the video surveillance, it might look as if the officer is not counting the inmate. The BOI acknowledges this weakness when reviewing the video.

When interviewed about the count, Officer [E] stated that only one inmate was observed in [Cell B] and there was verbal confirmation of an inmate in [Cell A]. He indicated that the cell has a blind spot where the toilet is located which would explain why he couldn’t see an inmate sometimes. He admits that he made an error when doing the count and could offer no reasonable explanation. [E] was also under the belief that policy allowed for verbal confirmation in lieu of seeing a live breathing body. He is now aware that is not correct.

Officer [C] was very certain that he did a thorough and proper count at 1750 hours which is confirmed on the video surveillance. Officer [C] states that he must have made a mathematical error when tabulating the count which would have prevented him from discovering the inmate missing from [Cell A]. [C] insists he compared numbers with Officer [E] and suggests that [E] must have also made a similar mathematical error.

[C] signed the count slip with officer WEDA who did not do the count. Under the signature block of the count slip is a statement were “we” certifying that all inmates were present …”. [C] did not offer any reason why Officer [E] didn’t sign the count slip. The BOI is not satisfied with [C]’s lack of explanation or reason why he completed a count slip with a different officer, other than [E] who conducted the count. The BOI also questions if Officer [C] compared counts with Officer [E], given the unlikely chance of two errors, and that [E] didn’t sign the count slip. Furthermore, when errors in counts are made it is usually because an inmate is missed and not counted. Rarely are there counts submitted where an extra inmate is counted. Based on this information and the balanced of probabilities not being in favour of two Officers making the same mathematical error, the BOI concludes that the Officers, [C] and [E] did not properly compare their individual counts.

Officer [E] did not sign the 1750 hour count slip. In reviewing the 1750 hour count slip, there are two signatures noted on the form, neither signature is legible and after questioning staff it was determined that the signatures belonged CX-01 WEDA and CX-01 [E] Neither signature had their name printed along side, as outlined in Standing order 566-4.

Officer WEDA does not justify why he signed the 1750 hour count slip which he did not conduct. He did state that he has been tired lately and has been off on stress leave recently. He also mentioned that during this count he was busy with an inmate who was self harming and by the time the actual count was cleared he was in health care with the inmate. Officer WEDA also signed the 2240 hour count slip which he did not conduct. He offered no explanation for signing the slip but did suggest that sometimes staff will help out each other to get the paper work done quickly so the count can be cleared and they can go home.

Officer STEAD also signed the 2240 hour count slip which he did not conduct. He offers no reasonable explanation for this other than to suggest that he was running the desk at the time and it is sometime quicker to get the count slip prepared for the officers and ready to be sent to Central Control to clear the counts so they can go home sooner.

When interviewing Officer [A], it was learned that he conducted the 2240 hour count and completed it by himself. He was very candid during the interview and stated that he must have made an error and counted the inmate in his cell based in a verbal response from the inmate. He does not recall the actual incident. He also offered no reasonable explanation for not completing the count slip for which he conducted.

Findings

1. Officer [A] …
2. Officer [B] …
3. Officer [C] …
4. Officer [D] …
5. Officer [E] …
6. CX-01 WEDA signed the 1750 and 2240 hour count slip which he did not personally conduct. Therefore, the allegation that Officer WEDA failed to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO566-4 on 09-01-09 is founded.
7. Therefore, WEDA did contravene the Code of Discipline, Professional Standards, “Responsible Discharge of Duties”, specifically, “willfully or through negligence, makes or signs a false statement in relation to the performance of duty.”
8. Officer STEAD signed the 2240 hour count slip which he did not personally conduct. Therefore, the allegation that Officer WEDA failed to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO566-4 on 09-01-09 is founded.
   Therefore, STEAD did contravene the Code of Discipline, Professional Standards, “Responsible Discharge of Duties”, specifically, “willfully or through negligence, makes or signs a false statement in relation to the performance of duty.”
9. Officer [F] …

[Sic throughout]

[Emphasis in the original]

40 Ms. Knopf testified that she received the above investigation report on or about February 19, 2009. It was reviewed by her and other people and there were discussions within management of the respondent about what to do about its findings. She noticed some typographical errors in the report and she testified that she thought "it did not go into a lot of detail" but she decided to "accept it as written." She testified that she passed the report to national headquarters of the respondent and it took some time for the report to be vetted there. She described that delay as "not unusual" because of the "backlog" in Ottawa. The result was that she could not send a copy of the investigation report to the grievors until April 2009. Information that did not directly affect the grievors was removed and the redacted version was sent to the grievors. They submit that it was unfair not to receive the full report.

41 Ms. Knopf testified that she concluded that the investigation report warranted consideration of discipline. Disciplinary hearings were held on April 24, 2009. She and two other members of management conducted the hearing.

42 Mr. Weda appeared at the disciplinary hearing. Ms. Knopf said in her evidence that the panel discussed with him the January 9, 2009 incident and Mr. Weda said he "had been very tired." He also stated his pride in working for the correctional service and that he had "learned from his mistakes." Ms. Knopf testified that she "believed him." However, she also testified that the only explanation he could provide for signing the two counts he had not conducted was that he wanted to help other staff to "get home quickly," as she put it. Mr. Weda also said at the hearing, according to Ms. Knopf, that the stepping down to a CX-01 position "should be enough.” Ms. Knopf testified that she was concerned that Mr. Weda thought that the stepping down was a punitive decision by the respondent and she explained to him that it was not. Overall, Mr. Weda presented, in Ms. Knopf's words, as "taking responsibility for his actions" and "well aware of the responsibilities of his position." However, again, "except for exhaustion, there was no clear rationale for his actions." The hearing closed with Ms. Knopf advising Mr. Weda that the respondent would consult with Regional Headquarters about how to proceed.

43 At the disciplinary hearing for Mr. Stead the conversation proceeded in a similar way and he also took responsibility for his actions. According to Ms. Knopf, the importance of being vigilant all the time was discussed as was professionalism and the need for team work. The fact that Mr. Stead had organized a meeting (on January 12, 2009) between her and the officers on duty on January 9, 2009 was noted, as was the fact that he spoke for them and he communicated that they took responsibility for their actions. Those facts were to Mr. Stead's credit. Ms. Knopf testified that while Mr. Stead was leaving the hearing he made a comment that, "if he was on the floor, it would not have happened", in Ms. Knopf's words. She "took that to mean that he shifted the responsibility on to me [Ms. Knopf]" and that a cause of the problem was making Mr. Stead the officer in charge. During the interview, according to Ms. Knopf, Mr. Stead said he could not be responsible for what others did if they were out of his sight. This "concerned" her because he had a responsibility to mentor and coach new staff. The fact that he had to stay in the office for security reasons (unrelated to his grievance) was noted but "there was nothing to prevent him from stepping out of the office to monitor how staff did their counts and range walks."

44 Neither grievor gave evidence in the hearing before me about what was said at their disciplinary hearings before Ms. Knopf and her colleagues.

45 Ms. Knopf discussed with her staff whether any actions should be taken by the respondent and, if so, what they should be. She testified that she was "constantly being challenged by headquarters about why I had not terminated" the grievors. Despite this she decided not to dismiss them. She was "impressed" by the officers coming forward on their own to accept responsibility and she believed this indicated they could learn from the situation. She thought that "people have the capacity to change". As well, the grievors had three to five years of service, the respondent had made a significant investment in training and she was "reluctant to throw that away." As a general management issue, Ms. Knopf stated that officers made mistakes from time to time and the issue was how they respond to those mistakes.

46 In the end a decision was made to impose a four-day financial penalty on each of the grievors. Ms. Knopf explained in her evidence that Mr. Stead was the officer in charge and he falsely reported one count had been done when he was responsible for making sure it was done. Mr. Weda falsely reported two counts as being done. These acts were willful or negligent false statements prohibited by the Code of Discipline (subsection 5(j)), according to Ms. Knopf. She considered counts as the "cornerstone of good security practices" as well as a "fundamental function" of correctional officers, and it was "difficult [for her] to imagine a more serious transgression."

47 On May 7, 2009 Mr. Weda received a letter from the acting warden at the time (not Ms. Knopf), advising him that a four-day financial penalty was imposed on him. That letter is as follows:

On January 21, 2009, you were notified that a disciplinary investigation was convened to investigate the allegations that you contravened the Code of Discipline on January 9, 2009 by:

• Failing to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO 566-4.

On April 15, 2009, you were provided a copy of the completed disciplinary investigation report. I accepted the findings that you:

• Failed to conduct proper range walks and institutional counts as described in PO KP 08-24-01 and SO 566-4 on 09-01-09; and
• Contravened the Code of Discipline, Professional Standards, “Responsible Discharge of Duties,” specifically, “willfully or through negligence, makes or signs a false statement in relation to the performance of duty.”

The disciplinary hearing was held in my office at 0930 hrs on April 24, 2009.

You certified the 1750 hr and 2240 hr counts in segregation on January 9, 2009 as being correct by signing your name on the count slips when you had not actually conducted the counts. This was clearly not within policy and was fraudulent. You were one of the senior officers in segregation on January 9, 2009. The other segregation officers looked to you for leadership. As an experienced senior officer, I rely on you to ensure that counts are properly conducted.

Your negligence in signing count slips when you had not actually conducted the counts resulted in two inmates remaining undetected in one segregation cell and subsequently, one inmate suffering injuries. The two inmates are now in the process of court proceedings against the Correctional Service of Canada.

Your actions could have resulted in more serious consequences; an inmate could have died or escaped. I cannot stress enough the importance of conducting proper range walks and counts and how this relates to public safety and the professional image of the CSC and Kent Institution.

During the Disciplinary Hearing you admitted to signing your name to count slips when you had not conducted the counts. You took full responsibility for falsifying the count slips. You indicated that as a result of this experience, you are more diligent with your duties, and that you have learned from your mistakes.

When deciding upon an appropriate corrective action, I considered the findings of the disciplinary investigation, reviewed your disciplinary file, and considered your willingness to accept responsibility for your errors and your commitment to learn from your mistakes. I also considered the fact that you were experiencing personal stressors in your family life when you made these errors. Consequently, I have decided to award you with a four-day financial penalty equivalent to $640 or four (4) days of pay in accordance with Section 12(2) of the Financial Administration Act.

You are entitled, as outlined in the Collective Agreement, to submit a grievance relating to my decision.

48 Mr. Weda testified that he expected some discipline but he expected it to be progressive. His reasoning was that progressive meant he would receive something less than four days because he had no previous discipline. He also explained that he believed that the counts were done by other officers and he had only an indirect role in the problems leading to the inmate being injured on January 9, 2009. He questioned whether there was a strong link between doing the counts and the discovery of the injured inmate.

49 Mr. Stead received the same letter that was sent to Mr. Weda, except that it referred to only the count that took place at 22:40 hours and it did not refer in the penultimate paragraph to “personal stressors”. He testified that he was surprised to receive the four-day financial penalty because he believed he had been disciplined when he was stepped down from the CX-02 position in January 2009. He thought the respondent was "hanging us [he and Mr. Weda] out to dry … maybe because we were so forthright."

V. The grievances

50 The grievors each have filed two grievances.

51 On June 18, 2009, Mr. Weda challenged the imposition of the four-day financial penalty against him as being “…unwarranted, excessive and unfounded in facts and law.” He requested a number of corrective actions including cancellation of the disciplinary measure, removal of it from his files and essentially a make whole order. In a second grievance, Mr. Weda challenged the decision not to reinstate him in his acting assignment as a CX-02 because it “constitutes disguised discipline.” He requested that he be reinstated in his acting CX-02 position and that he be compensated for any financial loss, including interest.

52 Mr. Stead filed two grievances the same date, on the same issues, and they are very similar to those of Mr. Weda. Mr. Stead testified that the "whole point" of the grievance was to acknowledge that he deserved some discipline but not the four-day financial penalty as well as the stepping down.

VI. Decision and reasons

53 As above, there are two broad issues in these grievances. First, was the stepping down of the grievors, from acting CX-02 to CX-01, an administrative decision, as the respondent submits, or disguised discipline, as the grievors submit. And, second, did the respondent have just cause to impose a four-day financial penalty on the grievors?

54 I will deal with these issues in turn.

A. Stepping down from CX-02 to CX-01

55 The grievors submit that the respondent disciplined them when it stepped them down from CX-02 to CX-01 positions. They point to the loss of the value of working in a higher position, and they also submit that they suffered a loss of shifts as being strong evidence that the respondent's decision was a disciplinary action. If this view is correct then I have jurisdiction to review the respondent's decision. On the other hand, the respondent maintains that the decision to step down the grievors was not disciplinary. Instead it was an administrative decision and it was made to meet the immediate operational needs of Kent Institution, including the safety of the institution. If this view is correct, then I do not have jurisdiction to review the respondent's decision under paragraph 209(1)(b) of the Act.

56 I am required to look at the intention of the respondent at the material time (January 2009) in order to decide whether the respondent's decision was disciplinary or administrative. In one case the Public Service Labour Relations Board ("the Board") adopted a decision of the Federal Court of Appeal on this issue (King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45, citing Canada (Attorney General) v. Basra, 2008 FC 606. I reproduce the following from the Court's decision:

…

[19] In this case, the Adjudicator considered that the existence of a disciplinary investigation, and the fact that the applicant had been suspended without pay, was sufficient to give him jurisdiction over the matter under paragraph 209(1)(b) of the PSLRA. However, the Adjudicator did not consider, as he is directed to by the jurisprudence, whether the employer's intention, in suspending the applicant, was to punish him. Rather, it appears that the Adjudicator merely considered that, due to the length of time the investigation was taking, the suspension became disciplinary by default. Therefore, I conclude that this is a serious error, as the Adjudicator applied the incorrect test, which is sufficient in itself to warrant the intervention of this Court…

…

57 Notwithstanding these conclusions, the Court also noted that an administrative decision could become a disciplinary one with the passage of time (paragraph 18; paragraph 61 of King). The Federal Court of Appeal allowed an appeal of this decision (Canada (Attorney General) v. Basra 2010 FCA 24; King, para 61) on the grounds that the previous decision did not apply the correct test when considering an employer's intention. The result is that the inquiry remains one of intention.

58 Another decision makes similar but more general points (Canada (Attorney General) v. Frazee, 2007 FC 1176, at paragraph 20; citing Porter v. Treasury Board (Department of Energy, Mines and Resources), PSSRB File No. 166-2-752 (1974), at page 13:

…

The concept of "disciplinary action" is not sufficiently wide to include any or every action taken by the employer which may be harmful or prejudicial to the interests of the employee. Certainly, every unfavourable assessment of performance or efficiency is harmful both to the immediate interests of the employee and his prospects for advancement. In such cases, it cannot be assumed that the employee is being disciplined. Discipline in the public service must be understood in the context of the statutory provisions relating to discipline …

…

59 Further, although " … an employee may well feel aggrieved by decisions that negatively impact on the terms of employment, the vast majority of such workplace adjustments are purely administrative in nature and not intended to be a form of punishment" (Frazee, atpara 20). And, as described in a leading text Brown & Beatty, (Canadian Labour Arbitration, 4th Edition, at para 7:4210) the

… essential characteristic of disciplinary action is an intention to correct bad behaviour on an employee's part by punishing the employee in some way. An employer's assurance that it did not intend its action to be disciplinary often, but not often, settles the question.

60 Returning to the evidence in this case, the grievors were advised by letter on January 12, 2009 that, "as a result of" the January 9, 2009 incident involving the two inmates in the same cell, each was "stepped down to [his] substantive position as a correctional officer 1," effective the same date as the letter, "until the matter can be reviewed."

61 In its evidence and submissions the respondent submits that the decision to step down the grievors was a non-disciplinary, administrative action. As noted in the excerpt from Brown & Beatty above, this is of some significance, presumably because it means that the respondent is tacitly acknowledging that it cannot rely on an administrative action as part of an employee's disciplinary record.

62 In this case I note the seriousness of the situation following the January 9, 2009 incident. While the injuries to the inmate ultimately were not serious, the potential for serious injury certainly existed. That much was immediately obvious to everyone, including the grievors, as judged by their genuine shock upon learning of it; Mr. Stead testified he was "horrified" when he was telephoned at home after he left work on January 9, 2009. In these circumstances it was prudent to investigate what happened and, in the meantime, I conclude it was also prudent to step the grievors down from their positions in the segregation unit. I accept Mr. Utley's evidence that it was not immediately clear what occurred but the grievors were responsible for the segregation unit at the material times and the respondent decided to "… put them back into their substantive roles until we could find out what happened that day."

63 The grievors point to the financial penalty they suffered from being stepped down to support their submission that the step downs were disciplinary.  However, it is clear from the authorities discussed in this decision that a financial loss does not always reflect a disciplinary action. The grievors also express concern about the delay between the decision to step them down in January 2009 and the four-day financial penalty decision in May 2009. Their concern may be more directed at the May 2009 discipline than the January 2009 stepping down. In any event, it cannot be said that there was delay between the incident on January 9, 2009 and the stepping down of the grievors on January 12, 2009. The disciplinary decision is discussed below.

64 The grievors also note that they were stepped down to their substantive positions as CX-01s and their duties in the CX-01 position included range walks and counts. However, the respondent did not require them to undergo further training and nor were they subject to increased supervision. The result, according to the grievors, is that the respondent cannot in this adjudication take issue with their work in January 2009. That may be a fair point but the respondent has the right to assign staff in its best judgment and its decisions in this area are not a matter that can be reviewed by this Board, unless they can otherwise be considered disciplinary.

65 In summary, I accept that the respondent's intention in January 2009 was to address the safety issues that arose from the January 9, 2009 incident, pending a full investigation. Therefore, I am unable to find that the decision to step down the grievors involved disciplinary action and I do not have jurisdiction to review the respondent's decision of January 12, 2009.

B. Four-day financial penalty

66 The grievors accept that their conduct on January 9, 2009 warrants some form of discipline. However, they disagree that the four-day financial penalty imposed by the respondent is an appropriate level of discipline, especially in light of the stepping down in their positions discussed above. The issue to be decided, therefore, is what level of discipline is just and equitable in the circumstances of this case.

67 By way of general background, the authorities are clear that correctional officers are to be held to a higher standard of conduct than employees who do other work (McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 80). This is so because "[p]ersons who join the corrections service know that more is expected of them by their employer than would be expected of employees in other occupations" (Re Govt. of the Province of British Columbia v. B.C. Government Employees' Union (Larry Williams Grievance), [1985] B.C.C.A.A.A. No. 26 (Chertkow) (QL); cited in Government of British Columbia v. British Columbia Government and Service Employees' Union (Jaye Grievance), [1997] B.C.C.A.A.A. No. 813 (Hope), at para 28 (QL))

68 Looking at the grievors' conduct in this case, there can be little doubt that counting inmates is fundamental to the proper functioning of a correctional institution. Indeed, it would seem to be axiomatic that a correctional system cannot operate with any level of effectiveness without knowing that the population in its institutions is accounted for. The recording of this information is equally important. The most obvious example of the value of counts is to be able to deter or discover escapes. Another example, demonstrated by the facts in this case, is that counts will reveal if one cell is empty and another cell has too many inmates. Either circumstance is reason for concern and the combination of an empty cell and a cell with two inmates in a maximum-security institution only elevates the concern. The protection of the public depends in large part on basic procedures such as counts being in place and followed.

69 The grievors attempted in their evidence to minimize their failure to conduct counts as a factor in the injury to the inmate on January 9, 2009. It is true that the problem that started the incident was the electrical failure that somehow released the locks on the cell doors, and the grievors had no role in that failure. However, it is also reasonable to conclude that a proper and timely count or counts might have discovered two inmates in one cell, contrary to policy and good practice. This was not a responsibility that can be attributed to the correctional manager, as submitted by the grievors. That person was not on shift, the grievors were at work and they had some broad supervisory duties as CX-02s. Nor can a negative inference be drawn from the fact that the respondent did not call the manager as a witness, as submitted on behalf of the grievors.

70 Whether a count would have prevented the injury to the inmate, is obviously difficult to say. However, it can be said with some confidence that if a count was done it would have reduced the risk of injury, perhaps significantly reduced it. Again, this is why counts are done at all. The reason for the lack of counts and the signing of the slips without a count were that everyone wanted to get home at the end of the shift. In their evidence the grievors acknowledged the obvious: this is not an acceptable reason. That admission is to their credit but it is also a judgment that should have been made on January 9, 2009 before signing the count slips and leaving work.

71 It follows that I find that the grievors’ conduct was a serious breach of the respondent's policies, Post Orders and Standing Orders. Unfortunately, the grievors made a bad situation worse when they signed count slips that certified "… all inmates were present and all required doors, windows and barriers were checked and locked in accordance with standing orders." In fact, one inmate was not present in his cell.

72 I have also reviewed the following decisions on suspensions of correctional officers for guidance on the appropriate penalty in this case, and summarize them below in chronological order;

1. A 30-day suspension of a correctional officer was upheld following the escape from custody of two inmates. There had been a lack of inspections and checks, a deliberate flouting of count and log procedures. The grievor had a previous 60-day suspension for similar conduct (Government of British Columbia (Jaye Grievance)).
2. A 20-day suspension was upheld against a correctional supervisor who had breached a number of safety rules and procedures including security doors left open, logging in/out rules not followed, pat-down procedures not followed and a security camera rendered ineffective. Lesser discipline was given to other staff (Buchanan v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 91).
3. A four-day financial penalty was upheld in the case of a correctional officer who left his control post to intervene with some inmates while wearing his weapon on his belt. It was not established if the weapon was loaded, but the weapon itself constituted a threat to the officers and inmates present (Labadie v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 53).
4. A 5-day suspension was substituted for a 10-day suspension for a border guard who left a firearm unattended in an unsecure filing cabinet. The adjudicator found the incident was a single act of carelessness, not willful misconduct, and the grievor was remorseful. A 10-day suspension was neither corrective nor progressive while a 5-day suspension recognized the seriousness of the offence and took into account the grievor's supervisory role (Eden v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 37).

73 The above decisions reflect a range of suspensions from 4 to 40 days and I find that they involve circumstances that are broadly similar to the ones in the grievances before me. The one exception to this is that none of the above cases involved injury as a result of the misconduct of the correctional officers. I have found above that, in the grievances before me, the grievors actions contributed to a situation where an inmate was injured, albeit with superficial injuries. The primary reason for the injury was the electrical problem that caused the door locks to open. Overall, the above decisions are of some assistance in this case and they support the respondent's decision to impose four-day financial penalties as consistent with what other respondents have done in similar circumstances. In fact, the above decisions suggest that a more severe penalty could be justified.

74 I also note that discharge has been upheld in circumstances that are not dissimilar to the ones in the grievances before me. For example, dismissal was upheld in the case of two correctional officers who escorted an inmate to a medical appointment. The inmate was wearing leg shackles and handcuffs. While the inmate was being treated the officers fell asleep in the same room and this was witnessed by several people. The officers denied they were asleep and one alleged anti-union animus. The arbitrator found there was serious misconduct, she rejected the grievor's explanations and allegations and she concluded the officers had failed in their duties. (Management and Training Corp. of Canada (c.o.b. Central North Correctional Centre) v. Ontario Public Service Employees Union, [2006] O.L.A.A. No. 146 (Knopf)). For sure there are significant differences between that case and the grievances in the case before me (the immediate acceptance of responsibility by the grievors in this case is the obvious one) but the Management and Training Corp. of Canada case demonstrates the high standard of conduct expected of correctional officers. The following decisions are to the same effect: Courchesne v. Treasury Board (Solicitor General), PSSRB File No. 166-02-12299 (19820719); Renaud v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 42; Rivard v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 75; and McKenzie.

75  I next turn to the individual circumstances of the grievors to consider whether there are mitigating factors in this case. I adopt a list of potential mitigating factors taken from a leading case (United Steelworkers of America, Local 3257 v. Steel Equipment Co., [1964] O.L.A.A. No. 5 (Reville)) that are often used by arbitrators:

1. The previous good records and service of the grievors.
   
   In January 2009 Mr. Weda had about five years of discipline-free service, and Mr. Stead had about three years of discipline-free service. In addition Mr. Weda had received a certificate of appreciation from the respondent in 2008.
2. Was the offence an isolated incident in the grievors' history?
   
   I accept that the January 9, 2009 incident was an isolated incident in the careers of the grievors. As Ms. Knopf put it in her evidence, they understood that they had made a mistake, they accepted responsibility for it and they learned from it.
3. Was the offence committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses? Was the offence pre-meditated?
   
   Mr. Weda points to the 16-hour shift he was working on January 9, 2009, he submits that he was exhausted and that I should consider that as a mitigating factor for him. I accept the obvious effects of a very long shift but I am unable to find that this excuses the violation of such a fundamental aspect of corrections as taking and reporting counts. This is not the case of a junior employee trying to manage a new position but an employee with five years of service and working in a supervisory position, albeit on an acting basis. As well, Mr. Weda relies on what he described as post-traumatic stress disorder. Normally one would expect expert medical evidence to support a finding that an employee's judgment was impaired by such a disorder. In any event, the evidence does not support a conclusion that Mr. Weda was psychologically disabled in January 2009 to the point of not being able to perform his basic correctional duties.
   
   Mr. Stead relies on the fact that he was subject to a no-contact direction from the respondent because of a threat against him. For this reason he was not able to go on the ranges and conduct or supervise counts. However, that does not explain why he signed a count slip knowing the count had not been done. He was the officer in charge of the shift and he had three years of service in January 2009. I appreciate that the Corrections Manager has formal supervisory responsibility in the segregation unit but a CX-02, even an acting one, is expected to provide basic oversight and mentoring. And, as Ms. Knopf pointed out, there was nothing stopping Mr. Stead from stepping outside the segregation office to observe the ranges and counts.
   
   Looking beyond these explanations by the grievors, the offence occurred in the rush to get home early. That was perhaps a technical "spur of the moment" event but in this case it also reflects poor judgment and a misunderstanding of the basic responsibilities of correctional officers.
4. Did the penalties impose a special economic hardship on the grievors?
   
   The grievors lost the pay differential between their acting CX-02 rates and the rate of their substantive positions as CX-01s and some shift selections. However, their acting assignments as CX-02s were for a term ending January 13, 2009 in the case of Mr. Stead and later in 2009 for Mr. Weda.
5. Were the respondent's rules, policies and orders uniformly enforced or was there otherwise any form of discrimination?
   
   The grievors submit that they were, essentially, disciplined twice: once by the stepping down from their CX-02 positions and then the four-day financial penalty. However, as discussed above, the stepping down was not done for disciplinary reasons. As well, all officers involved in the January 9, 2009 incident were disciplined. Nor can the fact that the grievors were never given a copy of the job description for the CX-02 position be considered a mitigating factor. They had worked for, and as, CX-02s and they knew the duties of that position in broad terms. As well, it is true the grievors were not given a complete copy of the February 16, 2009 investigation report. However, it was redacted for the purposes of protecting the privacy of the other officers and it cannot be said that somehow the grievors were unable to understand how the report affected them.
   
   I am urged by the grievors to consider that there was unacceptable delay when the respondent made their disciplinary decisions in May 2009 for an incident that took place in January 2009. There was apparently delay at the headquarters of the respondent while the investigation report was "vetted", and I accept that better timeliness on the part of the respondent would have demonstrated a more effective disciplinary process. However, I cannot conclude that the time period between January and May 2009 was unduly long. I recognize that the 1994 document, "A Guide to Staff Discipline", states that discipline must be timely and a decision should be made within one month. It is unclear whether this document has any current validity but, assuming it is valid, it appears to be a guideline rather than binding policy or legal regulation.
   
   Finally, the evidence included the August 2008 bulletin that clarified how officers were to carry out range walks and counts. Mr. Stead, in his evidence, thought he "may" have seen this document and Mr. Weda testified that he had not seen it because he was away when it was released. As the bulletin states the information in it was a clarification and it is a consistent and logical interpretation of the respondent's policies and orders. That is, there is nothing in the bulletin that suggests that counts do not need to be done or that sanctions the false recording of counts.
6. Were there any circumstances negativing intent?
   
   There is no evidence the grievors misunderstood their responsibility to conduct counts and to not make false written statements about counts. They were trained in those areas and they knew the policies.
7. The seriousness of the offence in terms of the respondent's policies and obligations.
   
   As above, the grievors misconduct was very serious and it violated one of the fundamental elements of corrections policy, the counting of inmates and the proper recording of counts.
8. Are there any other circumstances that should be taken into account?
   
   It is of considerable significance that the grievors took immediate responsibility for their misconduct by asking for a meeting with the warden, Ms. Knopf. This was initiated by Mr. Stead and he spoke for his colleagues by saying, among other things, that the officers on shift on January 9, 2009 acknowledged their error and they accepted responsibility for it. In their evidence the grievors continued this sentiment although it was perhaps muted when Mr. Stead suggested he relied on the no-contact direction from the respondent to explain what happened. Similarly, Mr. Weda suggested that a 16-hour shift was at least a partial factor to explain why he knowingly signed a false count slip.

76 Considering the misconduct of the grievors in the context of similar cases and in light of the above discussion of any mitigating circumstances, I conclude that there was just cause for the respondent to impose four-day financial penalties against the grievors. Their misconduct was very serious and, while it was not the primary cause of the incident on January 9, 2009, it contributed to a situation where there was an increased risk of injury among inmates. This risk could have been lowered by the simple routine of doing counts of inmates. False statements that the counts had been done increased the seriousness of the grievors' misconduct. A four-day financial penalty is on the low end of sanctions in other cases. 

77 The grievors accept that they should receive some discipline but they submit it should be less than four days. They submit the circumstances warrant a one-day financial penalty as described in the Global Agreement. In my view the circumstances on January 9, 2009 involved "severe misconduct" as contemplated by that agreement. This finding moves the grievors' situations from the graduated scale of one-day penalty for a first offence to a four-day penalty, the maximum for severe misconduct under the Global Agreement.

78 I take the evidence of Ms. Knopf to be that a major factor in the respondent's decision was the grievors' initiative in meeting with her and taking responsibility for what happened or part of what happened. In fact she was urged by her superiors to terminate the grievors' employment. However, as Ms. Knopf put it, the grievors demonstrated their capacity to change and learn from their mistakes and a four-day financial penalty reflects that fact. I agree that the grievors' actions after January 9, 2009 reflect well on them and should be given weight in determining the penalty in these grievances. Put another way, without the grievors' immediate acceptance of responsibility the appropriate penalty would have been more severe.  This is consistent with a progressive approach to discipline for a serious offence.

79 In summary, the grievors' misconduct was serious but their immediate acceptance of responsibility in a formal and direct way is a mitigating factor that justifies the four-day financial penalty determined by the respondent and one which is on the lower end of penalties in similar cases.

80 For all of the above reasons, I make the following order:

II. Order

81 The grievances are dismissed.

August 14, 2012.

John Steeves,
adjudicator