FPSLREB Decisions

File: 166-2-26569 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN BRIAN PAXMAN Grievor and TREASURY BOARD (Solicitor General - Correctional Service Canada)

Employer

Before: Louis M. Tenace, Vice Chairperson For the Grievor: Chris Dann, Public Service Alliance of Canada For the Employer: Patrick Bendin, Counsel Heard at Calgary, Alberta, January 18, 1996.

Decision Page 1 DECISION At the commencement of the hearing, the representatives of the parties presented me with the following agreed statement of facts:

The grievor, Mr. Brian Paxman, is a Correctional Officer II at Drumheller Institution. The position classification is a CX 2. He was taken on strength effective January 26, 1987 as a CX COF 1. Mr. Paxman has no previous disciplinary record.

On November 2, 1994, Mr. Paxman had inmate X on a Temporary Absence for program purposes. The inmate had an appointment with a Psychologist in Calgary.

Following the appointment Mr. Paxman asked the inmate where he wanted to eat. The inmate said he would like to eat at the Red Lobster.

Mr. Paxman and the inmate went to the Red Lobster, and were seated.

Mr. Paxman looked around to see where the washroom, exits and the Main door were.

After being seated, coffee being served, and their dinner order being taken, the inmate proceeded to the washroom. It was following this that the grievor lost sight of the inmate, and he escaped.

As a result of this incident, the grievor was assessed a financial penalty of $100. which he grieved. The grievor is requesting that the financial penalty be rescinded and that he be reimbursed accordingly.

Summary of the Evidence Robert Repas has been a Unit Manager at Drumheller Institution for the last seven years. The grievor has been reporting to him for the last two years.

Mr. Repas testified that inmate "X" was given permission to leave the institution through an Escorted Temporary Absence (ETA) to attend a medical appointment (Exhibit E-1). Inmate "X" was not considered to be a high security risk and, therefore, it was not necessary to place him in any restraint equipment (i.e., handcuffs, leg irons, etc.). Mr. Paxman was assigned to accompany inmate "X" on the ETA. Following the medical appointment, Mr. Paxman asked inmate "X" where he

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Decision Page 2 wanted to have lunch. He indicated that he wanted to go to the Red Lobster. They did so. While at the Red Lobster, inmate "X" said he wished to use the washroom. Mr. Paxman permitted him to do so. It was at this point that inmate "X" escaped. According to Mr. Paxman, as inmate "X" left to go to the washroom, a waitress came between them about five feet from their table and he lost sight of inmate "X" for about ten seconds. When Mr. Paxman went outside, he could find no sign of him. Mr. Repas testified further that he obtained the details of this incident from Exhibit E-3, which was Mr. Paxman's written summary of what had occurred, as well as from an interview he held with Mr. Paxman. He noted that in Mr. Paxman's written account of the escape, he made no mention of how long inmate "X" was out of his sight. It was during the interview that Mr. Paxman revealed that inmate "X" was out of his sight for some ten seconds.

Mr. Repas testified that Mr. Paxman violated the Escort Briefing rules by allowing inmate "X" to be out of his sight, hearing and supervision (Exhibit E-2). Mr. Repas was quite familiar with the restaurant in question and, in his opinion, it was simply not possible to lose sight of a person for ten seconds who left to go to the washroom from the table at which inmate "X" and Mr. Paxman were seated. According to Mr. Repas, inmate "X" escaped because of Mr. Paxman's negligence. This constituted a violation of the Correctional Service Canada Code of Discipline (Exhibit E-4) which stipulates on pages four and five as follows:

An employee has committed an infraction if he or she: through negligence, permits an inmate to escape.

Mr. Repas testified further that in arriving at his recommendation to assess Mr. Paxman a $100. financial penalty, he also took into consideration the fact that Mr. Paxman had failed to mention in his report that he had lost sight of inmate "X" for some ten seconds, also, Mr. Paxman showed no remorse for his actions. Mr. Repas noted that inmate "X" remained at large for about one month until he was recaptured.

During cross-examination, Mr. Repas acknowledged that Mr. Paxman had always been a satisfactory employee and that he had performed many ETA's without incident. He also acknowledged that officers volunteer for ETA's.

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Decision Page 3 Timothy Fullerton is the Warden of Drumheller Institution, a post he has held for about seven years. He testified that although he did not determine the penalty imposed on Mr. Paxman, he was satisfied that it was warranted because Mr. Paxman had violated standards of professional conduct. According to Mr. Fullerton, correctional officers are trained extensively both before they assume their duties and also during their careers. Before an ETA takes place, the officer in question is briefed. Mr. Fullerton testified that he did not consider a fine of one hundred dollars excessive in this case. He considered it important for an institution such as Drumheller to be able to engender trust and confidence in its programmes as well as a feeling of public safety. Correctional officers have standards of professional conduct and they must demonstrate that they are able to adhere to them.

The grievor's representative did not call any witnesses. Argument Counsel for the employer submitted that Mr. Paxman was disciplined because he was negligent in performing his duties. He lost sight of inmate "X" for about ten seconds which led to his escape. Mr. Paxman failed to mention in his written report that he lost sight of inmate "X". He only did so during the interview with Mr. Repas (Exhibit E-5). Counsel submitted further that it was not reasonable for Mr. Paxman to have lost sight of the grievor for about ten seconds if he was following him, some five feet behind, to the washroom. The grievor was negligent and the penalty imposed was appropriate. In counsel's view, there was no reason offered to mitigate the penalty based on the evidence.

The grievor's representative submitted that the penalty imposed was punitive rather than progressive. The grievor has had an unblemished record before and since this incident. The escape happened because of unavoidable circumstances and not because of anything done or not done by the grievor. The employer has not proved that the grievor was negligent. The grievor's representative submitted further that the employer had not shown that there was any harm to society or to the institution resulting from the grievor's actions. Moreover, it was up to management to decide if there was a danger that inmate "X" might escape and to place him in restraint equipment accordingly. He also submitted that the ETA rules were unreasonable and probably never followed to the letter. Public Service Staff Relations Board

Decision Page 4 In support of his submission, the grievor's representative referred me to the following: Veilleux and Cagiotti, (Board files 166-2-15247 and 15248); Juteau and Therrien, (Board files 166-2-23564 and 23565); Bukovy, (Board file 166-2-21514).

Reasons for Decision After reviewing the evidence and the testimony, I am satisfied that the grievor was negligent in the performance of his duties and that the penalty imposed was not excessive under the circumstances.

There is no dispute that Mr. Paxman violated the ETA rules. There is no dispute that he lost sight of inmate "X" for about ten seconds which led to his escape. It may have been a few seconds more or a few seconds less. Ten seconds is a long period of time in a situation such as the one in this case. Also, five feet is a very short distance. It is difficult to conceive of one person following another at a distance of five feet and losing sight of that person for about ten seconds. However, because the grievor did not testify, I do not have the benefit of any clarification he might have provided. I am left with Mr. Repas' testimony and the grievor's written statement. The grievor's representative submitted that the penalty imposed was excessive yet he offered no substantial reason for me to mitigate it. It is not sufficient to make a bald statement to the effect that the ETA rules were unreasonable and were probably never followed. That would have to be demonstrated with cogent evidence which was not done in this case.

For all of the reasons outlined above, the grievance is denied.

Louis M. Tenace, Vice-Chairperson.

OTTAWA, February 5, 1996.

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