Three-month suspension sends message of serious consequences: arbitrator
A Nova Scotia arbitrator has reinstated a correctional officer and substituted a suspension after the officer and a colleague were fired for inappropriate and unprofessional conduct in front of an inmate and a social worker.
The employer in this case didn’t look at the overall context of the situation and the different roles each officer played in the misconduct, says Annie Gray, a labour and employment lawyer at Stewart McKelvey in Halifax.
“What seems to have happened here was grouping the two employees together, and that can happen sometimes where there is an incident in which a couple of employees are involved,” she says. “It’s clear from the decision that the other employee spearheaded the inappropriate and unprofessional conduct.”
Transport for medical treatment
The worker was a correctional officer at the Central Nova Scotia Correctional Facility operated by the Nova Scotia Department of Justice (DOJ) in Bedford, NS, since 2015.
On Dec. 2, 2021, the worker and a colleague transported an inmate to a hospital for medical treatment. In the vehicle, the inmate sat in the backseat with a plexiglass partition, which had a small opening so he could hear the two officers.
The two officers had a conversation in the vehicle with a substantial amount of profanity. They discussed another inmate as well as other correctional officers. They also discussed incidents with inmates when they were attacked and used physical force.
When they arrived at the hospital, they were met by a DOJ social worker. They had a casual conversation about basketball, as the social worker had played and coached at university. The worker’s colleague mentioned that he had played hockey and they had been in some of the same university classes, and the social worker said she didn’t remember him. The colleague replied that her face was all over campus, to which the worker said, “Yes, probably on the back of bathroom stalls.” The social worker thought that this was directed at her and she was embarrassed. She said “no” but didn’t say anything else.
When they reached the treatment room, the inmate was set up in a bed with an intravenous line of medicine with nurses returning periodically to replace the bag. The nurses were all young women and the worker’s colleague made a comment about there “being two nurses and he has two hands.” He also would look at a nurse when she entered, raise his eyebrows, and look at the worker, making them both laugh.
When the social worker returned from getting food, they were discussing another inmate whose conduct had caused lockdowns in the past. They also discussed incidents of using force against inmates and the colleague called one inmate a derogatory name.
While they were still at the hospital, the social worker emailed a complaint about the officers to her supervisor, saying that they were conducting themselves in an offensive and unprofessional manner.
After the DOJ received the complaint, a manager called to say the officers were being recalled early.
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Written statements about workplace incident
When the officers returned to the facility with the inmate, they were immediately placed on paid administrative leave and asked to prepare written statements. The DOJ launched an investigation by two deputy superintendents.
The DOJ’s immediate actions when it received the social worker’s complaint was a solid response to the situation, according to Gray.
“They received a complaint about things that were happening in real time, and a good way to de-escalate the situation is bring them back,” she says. “And they had them immediately record statements about what happened - because they were nearly contemporaneous with the events, they created good evidence.”
In his written statement, the worker acknowledged that it wasn’t appropriate to discuss another inmate in front of an inmate. He denied any sexual comments were made, although his colleague had said the nurses were attractive and he agreed. He didn’t recall using any profanities in the hospital.
The worker also claimed that the bathroom stalls comment was to his colleague about the colleague’s face, not the social worker’s, because he had played hockey at the university. However, he agreed that it was inappropriate and unprofessional. He concluded his statement by saying that he would “strive to be more professional while having conversations with inmates and co-workers.”
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Investigative interviews into conversations
The worker, the colleague, and the social worker were interviewed. The worker reiterated that the bathroom stall comment was directed at his colleague and the colleague initiated most of the inappropriate conversations, although he didn’t try to stop or correct him.
One of the investigators decided to review an audio recording that was made automatically in the inmate transfer vehicle. The recording revealed that, on the way back, the officers speculated that they were needed for a physical force intervention and made profanity-laced complaints about drivers and pedestrians. After they received a call to report to the deputy superintendent’s office, the speculated why they might be fired. All of this was in earshot of the inmate in the back of the vehicle.
The investigators prepared a report concluding that the worker violated several policies and codes by: not presenting himself in a professional manner while medically transporting an inmate; openly speaking about other inmates in the presence of an inmate, the social worker, and hospital staff; using inappropriate language; and engaging in inappropriate conversations.
The DOJ terminated the worker’s employment on Feb. 23, along with that of his colleague.
The union grieved, contending that dismissal was excessive and the DOJ failed to apply the principles of progressive discipline. The colleague’s grievance was later dropped.
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Grounds for discipline, termination
The arbitrator noted that the onus was on the DOJ to establish reasonable grounds for discipline and that termination was appropriate. There was no doubt that the first element was met, as the worker acknowledged and apologized for inappropriate and unprofessional conduct.
The worker had seven years of service as a correctional officer - which was fairly long given the difficulty in recruiting them - and he had conducted numerous medical transports of inmates without any prior complaints, the arbitrator said. In addition, other than his bathroom comment, his interactions with the social worker were cordial and professional.
The arbitrator found that it was possible that the social worker misinterpreted the bathroom comment, particularly since it was in response to the colleague’s statement and they were wearing masks due to COVID-19.
The arbitrator found that in most of the conversations and observations of the nurses at the hospital, the worker was a passive participant, but his lack of response was inappropriate and unprofessional.
As for the conversation in the vehicle, no one heard it other than the investigator who reviewed the audio recording, the arbitrator said, noting that correctional officers should be able to vent about their jobs as long as it’s in private.
However, the arbitrator also found that venting in the presence of an inmate was wrong and could potentially lead to weaponization of personal information by an inmate against other inmates or staff.
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Reinstatement with suspension
Given the worker’s service, clean discipline record, acknowledgement of his conduct, and “the relatively minor and fleeting nature” of his misconduct, the adjudicator found that the principles of progressive discipline should be followed. The adjudicator ordered the DOJ to reinstate the worker with a three-month unpaid suspension, which would be severe enough to send the to act in a professional manner.
Gray finds the length of the suspension surprising given the arbitrator’s characterization of the worker’s misconduct as minor.
“It’s a good lesson that having really clear rules and doing a detailed investigation is really important and can lead to some really serious consequences,” she says.
It’s also important to consider the entire context of the situation, including the workplace environment along with the extent of the worker’s involvement, says Gray.
“There was evidence about how hard the workplace environment was because of all the turnover and how hard it was to recruit people, so in light of that the arbitrator viewed this guy's seven years of service as pretty long service in a workplace where it was so hard to retain people,” she says. “Taking that contextual approach in terms of how does this misconduct stack up against this employee's record, specifically in their circumstances, is important.”
