Jail guard permanently benched due to back injury, forced to swap jobs

While the general population typically tries to stay out of jail, one correctional officer is trying to get back in.

Barred from his job at the Fraser Regional Correctional Centre near Maple Ridge, B.C., former correctional officer Douglas Pearson filed a grievance with the provincial government after he was relocated to accommodate a permanently disabling injury.

To make matters worse, that debilitating injury prohibited Pearson from performing the core element of his job. Pearson suffered an off-duty back injury and ended up having to go on the Ministry of Justice’s short-term illness and injury plan, and the long-term disability plan after that. After undergoing surgery and rehabilitation, Pearson began his gradual return to work in 2005.

But his doctors cautioned against any contact with inmates, stressing he was in danger of injuring himself. He had been diagnosed as "totally disabled — own occupation."

When he returned to the correctional centre, it was in a new role at the control centre — one of the only positions not requiring inmate interaction.

Then in 2009, during the annual rotation, Pearson indicated he preferred the control centre job, but was instead offered alternate employment as an employment and assistance worker at the Ministry of Social Development.

Though his salary remained the same, there were several adverse financial consequences. For instance, he would lose the ability enjoyed by other correctional officers to take early retirement without penalty under the government pension plan.

As such, the British Columbia Government and Service Employees’ Union (BCGEU) filed a grievance against the Ministry of Justice, arguing Pearson should have remained at the control centre rather than moved to another ministry.

As the BCGEU saw it, Pearson’s relocation was not warranted under the circumstances. He should have been allowed to keep the control centre position permanently. Essentially, the justice ministry could and should have done more to help Pearson to transition following his injury.

"The union submits that the employer cannot establish undue hardship and asserts Pearson’s placement in the employment and assistance worker position through the rehabilitation committee process was neither the correct, nor a sufficient mechanism for accommodation in the circumstances," the union said in the decision. "The appropriate accommodation was obvious — Pearson should have been maintained in his control posting on a permanent basis."

Putting Pearson at another job in a completely different ministry caused him undue hardship, the union said. In some cases, reasonable accommodation may very well involve dealing with an employee who can no longer perform a core duty of their job.

Therefore, the correctional institute was guilty of violating the collective agreement and provincial Human Rights Code.

The BCGEU sought damages with respect to lost wages and benefits as well as the reinstatement of Pearson to his former position as correctional officer at Fraser’s control centre.

The problem, however, was that the justice ministry requires all its correctional officers to come into some contact with its prisoners.

"At the Fraser Regional Correctional Centre, and at the other correctional centres, all of the posts to which correctional officers are assigned have the requirement for inmate contact as an essential core duty of the job," the Ministry of Justice argued at the hearing. "The purpose of the position is maintaining the security and the safety of inmates within their care pursuant to established branch or centre policies, procedures and standards."

Or, as one ministry witness put it, "to be the secure and safe custody of inmates."

That includes resolving conflicts between inmates, assisting them to cope with their problems, counseling them during stressful periods, controlling hostile and aggressive behaviour, applying appropriate levels of force during physical restraint and responding to emergencies as required.

From the employer’s perspective, job replacement options were limited simply because of the nature of the position themselves.

Take the Fraser correctional centre for instance, where only two jobs exist that are completely removed from the inmates. But the warden said assigning one of those roles permanently to one officer would not be fair and could pose a risk to other employees.

"I have two posts which can be used for temporary accommodation — and I’m uncomfortable with that," the warden said during the hearing. "And those posts are filled regularly with persons returning to work. I rely on those posts to get people back to work...We can allow one post only at control for accommodation, and we have recently sent people home on the short term injury and illness plan because they were pregnant and the positions were filled."

While the BCGEU argued the jail had accommodated other employees in similar scenarios in the past, the Fraser centre deemed that case irrelevant.

Save for one exception dating back to the mid-1990s (in which one employee was permanently accommodated), the arbitrator ruled the justice ministry had a long track record of refusal to keep them on staff after a no-inmate contact restriction.

In his decision, arbitrator John Hall decided that, if Pearson were to permanently hold the control centre position, it would be unfair to other employees who might happen to go on short-term disability, as it is the only position available which does not require direct and immediate contact with the prisoners.

"I accordingly conclude that placing an employee with a permanent no inmate contact restriction in Control on a long-term and indefinite basis would cause a direct and significant interference with the rights other employees to be accommodated for temporary disabilities," the decision reads. "It would similarly impede the legitimate objective of returning disabled employees to the workplace as quickly as possible."

Had the Fraser centre offered Pearson a full-time position at the control centre, it would have negatively impacted the health and safety of its other workers.

"In terms of the expected duration of any accommodation, it is important to recognize some of the reasons why inmate contact is a core function of the correctional officer position. Among other factors, it is an inherent aspect of the direct supervision model, and allows staff to have an ear to the ground for potential problems," Hall explained in his ruling. "If you take away contact, you are not a correctional officer and if you are in (the control centre) you become a computer operator... moreover, a correctional officer with a no inmate contact restriction is obviously precluded from rotating through positions in other areas of the facility."

However, despite the fact the union’s grievance was dismissed, Hall ruled the justice ministry breached the procedural aspect of its duty to accommodate Pearson.

But because neither the employer or the union made recommendations should such a decision be reached, Hall gave both parties an opportunity to do so — and will address the outcome during a future hearing.

Reference: Ministry of Justice and the British Columbia Government and Service Employees’ Union (BCGEU). Sole arbitrator – John B. Hall. N. David McInnes for the Employer. Andrea L. Davis for the Union. June 14, 2013.