Home Arbitration/Labour Relations Arbitrator blocks admission of past discipline records in firing of Ontario prison guard for excessive force

Arbitrator blocks admission of past discipline records in firing of Ontario prison guard for excessive force

by HR Law Canada

An arbitrator has upheld an objection by Ontario’s Ministry of the Solicitor General in a case involving the termination of a a corrections officer for using excessive force against an inmate.

The objection was related to the admittance of disciplinary records of a different employee than the one who was fired.

The incident in question occurred on Oct. 18, 2022, when the guard (the grievor) was alleged to have delivered no less than 10 closed-fisted strikes to an inmate’s head and facial area. The Ontario Public Service Employees Union (OPSEU) sought to introduce disciplinary records from a separate case involving another employee (“employee E”) to argue that grievor’s dismissal was inconsistent and discriminatory.

Union’s argument

The union aimed to demonstrate that the dismissal was excessive by comparing it to the discipline imposed on employee E. In December 2019, employee E received a seven-day suspension for instigating and engaging in inappropriate behavior with an inmate, including delivering a knee strike to the inmate’s upper thigh and/or groin area.

The union argued that if employee E received a suspension for a similar or more severe violation, the grievor’s dismissal was inconsistent and thus unfair.

Employer’s objection

Regina Wong, representing the Treasury Board Secretariat, contended that the disciplinary records of employee E were irrelevant to the grievor’s case due to the distinct nature of the incidents.

The employer emphasized that each case of excessive force must be evaluated on its own specific facts. Wong cited multiple precedents, including Ontario Public Service Employees Union (Jackson) v. Ontario (Children, Community and Social Services) and Tenaris Algoma Tubes Inc. and USWA Local 9548, to support the argument that significant differences in the nature of the incidents prevent meaningful comparison.

Arbitrator’s determination

Arbitrator Tatiana Wacyk agreed with the employer’s position, noting that the material facts of the two cases did not substantially conform. She highlighted that while both cases involved violations of the Use of Force Policy, the specifics differed significantly. In the grievor’s case, the alleged use of multiple closed-fist strikes to the head and face carried a higher risk of injury compared to a single knee strike in employee E’s case.

Wacyk emphasized that fairness and consistency are critical in discipline but noted that these principles do not necessitate identical treatment in dissimilar situations.

“While the common circumstances as pointed out by the Union are that both the grievor and employee E were disciplined for violation of the Use of Force Policy, and their service time were roughly the same, the similarities, by and large, end there,” said Wacyk.

The arbitrator concluded that admitting the evidence would unnecessarily prolong the hearing and require the employer to revisit an incident resolved years ago without grievance. Thus, the disciplinary records of employee E were deemed “not arguably relevant.”

For more information, see Ontario Public Service Employees Union (Beckford) v Ontario (Solicitor General), 2024 CanLII 52271 (ON GSB).

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