Ontario correctional officer reinstated after dismissal following inmate fight

An Ontario arbitrator has reinstated a correctional officer who was fired for not following lockup procedure after an inmate was assaulted.

Luke Gardner was a correctional officer at the Toronto South Detention Centre (TSDC), a maximum-security correctional facility for adult male offenders.

On June 17, 2017, an inmate was lured by two other inmates into a cell and attacked. The seriously injured inmate wasn’t found until another inmate raised an alarm almost three hours later, although Gardner and another correctional officer were supposed to have conducted an inspection prior to lockup. Gardner’s shift had finished, but he had left 20 minutes early without signing the logbook — officers often didn’t sign in or out with the logbook.

Correctional officers divided the duties of the lockup procedure — one moved the inmates to their cells and locked them in, another consulted a list to ensure that they were in the right cells and a third observed the process.

The written lockup policy required inmates to line up outside their cells. However, this was rarely followed and Gardner claimed he had never been counselled or disciplined in relation to it. On the day of the assault, Gardner was responsible for moving the inmates into their cells while a colleague checked that they were in their proper cells.

Video surveillance footage showed that Gardner was at the station desk in the unit reading a book and looking at his cellphone at the time of the assault — officers weren’t supposed to have cellphones or reading material in the unit. It also showed Gardner looking through the window of the cell where the assault took place during the inspection and later walking by when a cloth covered the window.

Gardner said that he didn’t see any signs of a struggle in the cell — one inmate was at the window and the injured one was lying on the bed — and assumed things were fine since his colleague had looked already. He also said that he didn’t think anything of the cloth covering the cell window, as it was common practice for inmates who wanted temporary privacy to use the toilet. However, he didn’t check back later, which was the standard practice.

Gardner explained that his daughter had been struck by a car the previous day and he had his cellphone so he could text her and a book to distract him from the stress. He also said he left 20 minutes early because he was anxious to get home to his daughter, but he acknowledged that he shouldn’t have left early.

The TSDC terminated Gardner’s employment for failing to properly perform his duties.

The arbitrator found that Gardner was aware of the policies against cellphones and reading. Breaching these policies, as well as leaving early and not following up on the covered window, were cause for discipline, said the arbitrator.

However, the arbitrator found that there wasn’t cause for discipline for not following the written lockup procedure or not signing the logbook, as neither were part of common practice.

“It is inappropriate for an employer to discipline an employee for breach of a policy that is routinely not followed, and for which other employees have not been similarly disciplined,” the arbitrator said.

The arbitrator also found that the TSDC couldn’t fault Gardner for not discovering the injured inmate. He checked the cell and didn’t notice anything amiss, and neither did his colleague or the next shift 30 minutes later.

The arbitrator determined that Gardner distracting himself with his cellphone and a book, along with not checking on the covered window and leaving early, were serious misconduct but not worthy of termination. Noting that Gardner expressed remorse and an understanding of the importance of following policies in the future, the arbitrator ordered the TSDC to reinstate him with a one-year suspension.