Officer was able to work for months after incident; safety and trust weren't an issue
A Federal Public Sector Labour Relations and Employment Board adjudicator has overturned the firing of an Alberta correctional officer for leaving his post and failing to respond to an inmate altercation.
The worker was a correctional officer at the Edmonton Institution, a maximum-security penitentiary operated by the Correctional Service of Canada (CSC). Hired in 2011, he worked as a gallery officer in 2016 — a position that involved patrolling the observation galleries and watching inmate activities. He was required to wear a two-way radio and carry a rifle at all times while on the gallery post, and he wasn’t allowed to leave his area without authorization.
On Oct. 6, 2016, the worker was the only correctional officer on the gallery. He noticed that ear protection for use with a firearm was missing, so he emailed a manager to let them know.
At one point, the worker needed to take a “pee break,” so he checked all the cameras and patrolled the entire gallery before using the washroom that was on the gallery. Everything seemed quiet, so he felt it would be safe to go. He believed it was common practice for officers to use the bathrooms in the gallery post for a one-to-two-minute “pee break” if nothing was happening, although official CSC policy was that officers should never leave without authorization or someone else present.
As the worker headed to the washroom, an officer who was new to the institution opened the door between a range and the exercise area. Eleven inmates from the range ran into the exercise area and assaulted two inmates who were already there.
The worker heard about the commotion on his radio, immediately stepped out of the washroom, and checked the other units from the observation gallery. He saw a fistfight, so he went back to get a chemical spray. About 1.5 minutes after it all started, the invading inmates returned to their range and the incident was over before the worker could get there.
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CSC conducted investigation
CSC investigated the incident, including interviewing the worker. The worker said he didn’t try a verbal warning because it was too noisy and he didn’t fire a warning shot because he didn’t have ear protection. He said he felt that the spray was the best tool because it didn’t see any inmates with weapons.
CSC determined that the worker failed to respond to the inmate assault until it was over and he left his post in the gallery without authorization. In addition, he tried to deflect responsibility for his actions and a lack of ear protection wasn’t a valid reason for not using his firearm.
CSC terminated the worker on June 19, 2017, for actions that “were not in accordance with the behaviour expected of a CSC employee” and his failure to acknowledge the seriousness of the incident. The worker grieved the dismissal.
The adjudicator found that CSC didn’t condone short washroom breaks, so the worker’s actions in that regard warranted discipline. However, his immediate response demonstrated that is ability to respond was “minimally impaired,” the adjudicator said.
The adjudicator also found that the incident was caused by another officer’s actions and the radio communication didn’t indicate any weapons, so it was reasonable for the worker to consider using the chemical spray. However, chose to go back to get the chemical spray rather than use his firearm, which was not an appropriate response and was a failure to stop the assault at the earliest opportunity, the adjudicator said.
The adjudicator also noted that the worker was allowed to continue to work for several months until the termination decision was made, so there was no apparent loss of trust or safety concerns — particularly since the worker had several years of service with a good record.
The adjudicator terminated that termination was excessive and a 30-day suspension was more appropriate. See Ransome v. Deputy Head (Correctional Service of Canada), 2021 FPSLREB 138.
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