FPSLREB Decisions

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Gurpreet Manhas, is a correctional officer (classified CX-1) at Matsqui Institution in Abbotsford, British Columbia (“the Institution”). He has been employed with the Correctional Service of Canada (CSC or “the respondent”) since 2010, first at Kent Institution in Agassiz, B.C., and then at the Institution.

2        On August 19, 2013, the grievor received a financial penalty of $160.00 (one day’s pay) due to alleged performance issues as the officer in charge (OIC) during an armed medical escort.

3        On September 14, 2013, the grievor filed a grievance seeking the cancellation of the penalty, a reimbursement of the penalty with interest, and the destruction of all mention of the investigation and subsequent discipline in his personnel files.

4        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Background

5        On June 7, 2013, Officer Manhas conducted an armed medical security escort taking an inmate to Chilliwack General Hospital for a day-surgery procedure. The hospital is about an hour-and-a-half from the Institution. Officer Amanda Nelson, also a CX-1 correctional officer at the Institution, accompanied the grievor.

6        Officer Manhas was the OIC of the escort. It was his first such assignment. He testified that he was not a CX-2, had never before been assigned as the OIC of an escort, and had received no training or briefing on being an OIC.

7        The two officers and the inmate left the Institution at approximately 11:30 a.m. The officers checked the inmate into the hospital for the day surgery.

8        The officers agreed that the grievor would remain just outside the operating room door, to ensure continuous observation of the inmate during surgery. Officer Nelson took the grievor’s jacket, the inmate’s leg irons, and the Institution’s cell phone and went to the waiting area.

9        The evidence regarding the distance between the waiting area and the surgery room was not clear. However, certainly the waiting area was some distance from the surgical room, around a corner and not in the grievor’s direct line of sight.

10        As the surgery neared completion, the grievor was concerned that he might have to restrain the inmate alone, without the leg irons. Using his personal cell phone, he texted Officer Nelson several times on her personal cell phone. He did not receive an answer because her phone had been set to silent mode. He provided no explanation as to why he did not call the Institution’s cell phone, which he knew she had with her.

11        The grievor asked a nurse to find Officer Nelson so that she could bring him the leg irons. He then decided to leave his post outside the surgical room to find her in the waiting area.

12        At approximately 2:25 p.m., the surgery was completed. The grievor secured the inmate in leg irons before the inmate was moved to the recovery area. The nurse advised Officer Nelson that she could join the grievor in the recovery room so that they could both observe the inmate, who later awoke at approximately 3:30 p.m.

13        At approximately 4:10 p.m., Officer Nelson asked the grievor if she could take a cigarette break and get some food for herself and for him. He agreed.

14        At approximately 5:00 p.m., hospital staff advised the officers that the inmate was cleared to leave the hospital. They took the inmate to Pacific Institution in Abbotsford before returning to the Institution.

15        Before they arrived at the Institution, Officer Nelson asked the grievor to stop in the parking lot outside so that she could drop off her bag. The grievor stopped and let her out so that she could go to her car, but he did not wait for her to return. Instead, he left her there, which meant that she had no choice but to walk through the parking lot and the front gate while armed, which is contrary to regulations.

16        On the following day, June 8, 2013, the grievor spoke to his supervisor and brought forward a number of concerns about Officer Nelson’s conduct the day before. His concerns focused largely on allegations that she had been out of contact with him for an extended period, that she had given or had attempted to give a nurse the leg irons to return to him, that she had walked into the Institution armed, and that she had engaged in an inappropriate conversation with the inmate. The grievor felt that these issues raised security concerns with respect to Officer Nelson herself and with respect to other officers.

17        The Correctional Manager emailed those concerns to the Assistant Warden, Operations, Mark Bussey and to Officer Nelson’s supervisor.

18        On June 10, 2013, the grievor provided a written incident report outlining the allegations with respect to Officer Nelson’s improper performance of her duties during the medical escort (Exhibit 9).

19        In his report, the grievor indicated that while at the hospital, he had had no contact with Officer Nelson for almost two hours and that in his view, his life and the inmate’s were then at risk. He also identified himself as the OIC

20        On June 14, 2013, Officer Nelson also provided a written incident report on the medical escort events.

21        On June 18, 2013, an investigation was ordered in accordance with the CSC’s “Commissioner’s Directive 060 - Code of Discipline” and departmental policies with respect to allegations of duties being performed improperly.

22        On June 26, 2013, the inmate was interviewed by the Board of Investigation (BOI), and on July 3, 2013, both the grievor and Officer Nelson were interviewed.

23        During the interview, the grievor was given an opportunity to clarify or to add information to his written incident report. He asked why he was in trouble but said he was given no explanation as to why he was asked to clarify the information he had previously provided. As a result, he declined to provide additional comments.

24        On July 10, 2013, the BOI issued its investigation report. It determined that the grievor, as the escort’s OIC

• he had failed to abide by the Commissioner’s Directive and his post orders relative to performing his duties;
• he had failed to take the necessary and appropriate immediate actions to ensure the integrity of public safety;
• he had failed to take responsibility for not providing Officer Nelson with clear directions;
• he had made no attempt to contact the correctional manager of the Institution or the Institution itself via the Main Communications and Control Post despite his view that his and the inmate’s lives were at risk;
• he had failed to make a timely report of the policy breaches that had occurred during the escort, and
• he had failed to report information received from the inmate that impacted the security of a fellow officer.

25        The BOI concluded that the grievor’s omissions had violated the “Escort Briefing”, the Code of Discipline, “Commissioner’s Directive 560 - Dynamic Security and Supervision”, “Commissioner’s Directive 566-6 - Security Escorts”, “Commissioner’s Directive 568-1 - Recording and Reporting of Security Incidents”, and “Commissioner’s Directive 568-2 - Recording and Sharing of Security Information and Intelligence”.

III. Summary of the arguments

26        The employer argued that this case is very straightforward. The grievor failed to follow established procedures and policies and to make a timely report.

27        The grievor’s written incident report, which differs from Officer Nelson’s version of events, is self-serving and does not support his story. In it, he identifies himself as the OIC

28        The grievor felt that his life was at risk, yet he took no action to protect himself, the inmate, or the public.

29         He also failed to provide an incident report to his supervisor before the end of his shift and waited until the next shift to provide a statement.

30        Mr. Bussey, via the discipline, wanted to send a clear message to the grievor that he had failed in his responsibilities that day. Mr. Bussey believed that an oral or written reprimand would have been insufficient, given the grievor’s lack of understanding of the seriousness of the situation.

31        The grievor claimed that the evidence before me was unclear and that the issue of who was the responsible OIC

32        The grievor also pointed out that the employer did not explain to him why a disciplinary interview was convened, so he believed that he had the right to refrain from providing additional information.

33        The grievor assumed that he was the OIC

34        With respect to the grievor’s failure to follow the Institution’s policies and his failure to take appropriate action to ensure safety, he pointed out that hindsight is 20-20 and that these decisions are easy to fault after the fact, but at the time of the incident, he was focused on the inmate and his related safety concerns.

35        This was his first incident report, so the grievor wanted to speak to a supervisor before writing it, which is why he waited until the next shift to write it.

IV. Reasons

36        Despite some variance in the testimony, it is clear to me that the grievor was the OICOIC

37        It may be that the grievor’s partner engaged in conduct that challenged his ability to properly control the medical escort. It may also be that the grievor was not sufficiently experienced or trained to be an OIC

38        Be that as it may, the grievor was the OIC

39        The grievor indicated that he felt that his and the inmate’s lives were in danger, yet he made no attempt to contact the Institution, the police, or hospital security. He made no attempt to call his partner, who had the Institution’s cell phone; nor did he ask hospital staff to get her. He also did not attempt to get her attention by shouting down the hallway. Contrary to procedure, he attempted to contact her only by texting her personal cell phone. Because she had set it to the silent mode, she did not receive the text messages.

40        The grievor had many options that he could have taken to ensure safety. His failure to act is inexplicable. More importantly, when questioned by management, and then by the BOI, the grievor did not seem to acknowledge the seriousness of what he had failed to do; nor did he understand what he could and should have done differently. To an extent, the tendency to deflect blame and the failure to take full responsibility continued throughout this hearing. The grievor did little to provide the employer with assurance that this kind of conduct would not be repeated.

41        It is clear that the grievor failed to perform his duties properly. In the circumstances, I do not find the financial penalty of one day’s pay excessive.

42        For all of the above reasons, the Board makes the following order:

V. Order

43        The grievance is dismissed.

April 04, 2017.