One-day suspension for correctional officer at height of pandemic upheld
An Ontario arbitrator has upheld the one-day suspension of a correctional officer for not following masking and distancing mandates at the height of the COVID-19 pandemic.
The worker was a correctional officer at the provincially run Ottawa Carleton Detention Centre (OCDC) in Ottawa.
On June 30, 2020, the deputy superintendent, administration, sent a memorandum to all staff at the OCDC that all Ontario correctional institutions were immediately implementing masking practices. All staff and visitors at the OCDC were required to wear a surgical mask at all times while working.
The memo also stated that employees would be provided with one surgical mask at the beginning of their shift that had to be worn at all times inside the institution, with the exception of breaks when eating and drinking, or when there was a requirement for another specific type of personal protective equipment (PPE).
Mask mandate
On Nov. 14, another memorandum went out reiterating the mask requirement and advising that employees who didn’t follow it “may be subject to performance management and/or disciplinary action, as this is a critical piece in our fight against the spread of COVID-19.” The memo specified that masks should be worn at all times, including when escorting inmates outside the OCDC, going for coffee or food, and in all common spaces and high-traffic areas.
The second memo added that masks were allowed to be briefly removed while “actively eating and/or drinking during a break,” but employees must stay six feet away from others while doing so.
The policies for Ontario correctional institutions followed the infection prevention and control policies of Ontario Public Health, which was of particular concern in those environments where many inmates and staff were in a closed area.
The OCDC reduced the number of chairs in the lunchroom and added two other eating areas to reduce the number of people in one area, and plexiglass barriers were installed. Food was to only be consumed in these three designated areas.
Video, photos of misconduct
An unrelated review of closed-circuit television video from Dec. 24, 2020, discovered footage of the worker not wearing a mask or staying six feet away from other staff. It took two photographs from the footage – one of the worker sitting at a desk with his mask off and hanging around his chin while sitting closer than six feet from another employee, and another with the worker turning to and facing that employee with his mask still off and another employee walking by closer than six feet with her mask off and not eating.
The photos were from the “A & D” area, an area of the OCDC that was too small with the number of staff required to avoid being within six feet of someone most of the time.
An allegation meeting was held with the worker, where he was told of the date and location of where he was observed without his mask. He wasn’t shown the photos or the video footage and he initially said that he didn’t remember the events of the specific day.
The worker believed he was eating at the time as he had something in his hands, but he argued that he was in the “A & D” area, where there was no scheduled breaks due to the unpredictability of inmate movement in and out of the facility. He also said those in the A & D area could not leave to eat and drink elsewhere because transfers could come at any time, so they ate and drank “on the go.” He added that he had seen other correctional officers eating in the A & D area.
However, the worker acknowledged that A & D staff at times consolidated their breaks into one-hour blocks if they weren’t too busy. On Dec. 24, he claimed that he hadn’t yet had an opportunity to take a break outside the A & D area.
The worker said that at the time he didn’t think he had done anything wrong, but he acknowledged that there were COVID-19 outbreaks at the OCDC and it was a “big deal.”
Suspension for policy breach
The worker was suspended for one day without pay for failing to wear mandated PPE in accordance with policies and procedures and for coming in close contact with other staff. The colleague who had been caught on camera walking close by without her mask on was also suspended for one day.
The union grieved the suspensions, arguing that the photographs only showed the worker eating without his mask, which he was entitled to do. The photographs also didn’t show whether anyone was within six feet of the worker when he first removed his mask to eat and whether he put the mask back on when he realized someone was within six feet, said the union.
The union also argued that the A & D area was big enough that someone could stand in a corner and maintain a six-foot distance.
In addition, the union contended that a one-day suspension was excessive, as the colleague who walked nearby without a mask on was also suspended for one day, and her misconduct was more serious.
No justification, remorse
The arbitrator found that the photos presented a reasonable case for misconduct that had to be explained, and there was no suggestion by the worker that he didn’t remove his mask within six feet of other staff and kept it off for some time. Since the A & D area was a small area, it was likely that someone would move within six feet, said the arbitrator, noting that the union’s argument that six feet could be maintained standing in the corner was irrelevant because the worker wasn’t in the corner.
The arbitrator determined that the worker did in fact fail to follow direction and policies requiring him to wear mandated PPE while in close contact with other staff. Given that this took place during a pandemic before vaccines were available and there was a high degree of infection risk in the OCDC environment, the worker’s misconduct had a significant risk, the arbitrator said.
In addition, the worker didn’t show remorse for his misconduct, but instead tried to justify it, said the arbitrator.
The arbitrator noted that the Ontario Occupational Health and Safety Act also required employees to wear the protective equipment mandated by their employers and the worker acknowledged that the outbreaks in the OCDC were a big deal.
As a result, there was no reason to substitute a more modest form of progressive discipline such as a warning, said the arbitrator in upholding the suspension. See Ontario Public Service Employees Union (Murphy) v. Ontario (Solicitor General), 2024 CanLII 8290.
