Archived - Decision 05-044 Canada Labour Code Part II Occupational Health and Safety

This appeal made pursuant to subsection 129 (7) of the Canada Labour Code was decided by Katia Néron, Appeals Officer.

Appearances

For the applicant
Michel Bouchard, Advisor for the Union of Canadian Correctional Officers, UCCO-SACC, CSN Ontario Union

For the respondent
Brian Joyce
Assistant Warden, Management Services, Millhaven Institution, Bath, Ontario

Health and Safety Officer
Chris R. Mattson
Human Resources and Skills Development Canada, Labour Program, Toronto, Ontario

[1] This case concerns an appeal made on February 13, 2005, by Blair Pond, under subsection 129 (7) of the Canada Labour Code, Part II.

[2] The appeal was made as a result of the decision of absence of danger rendered on February 10, 2005, by health and safety officer (HSO) Chris R. Mattson following B. Pond's refusal to work.

[3] According to HSO Mattson's investigation report, on February 9, 2005, an inmate reported to a nurse who was working at the Millhaven Institution, in Bath, Ontario, that he had been assaulted with a sharp object by another inmate in the recreation area of the gymnasium of the Institution. The inmate's injury was described as a large open slash type wound on his side. The nurse believed that the assault probably happened on February 8, 2005, about 24 hours prior to treating the inmate. At the time of the assault a large number of inmates from all the Millhaven Assessment Unit (MAU) ranges, including the victim, were gathered in the recreation area. As a result of this incident, a search was conducted in the recreation area and the inmates range.

[4] On February 10, 2005, B. Pond was informed that the attacker remained unknown. He therefore refused to perform his normal duties as a correctional officer which included close contact with the inmates because no exceptional search was conducted in all the MAU ranges and, as a result, he believed that a weapon could have been hidden anywhere within the MAU. Based on this, he believed that his safety as a correctional officer as well as the safety of his other colleagues was not protected to an acceptable level of risk and therefore constituted a danger for himself and the other employees.

[5] To support his refusal to work, B. Pond referred to Section 53 of the Correctional Conditional Release Act (CCRA) which states that an exceptional search should be done when contraband which could be dangerous to human life is known or suspected to exist.

[6] However, based on the information available at the time, the Warden of the Institution decided to conduct an exceptional search under section 53 on the morning of February 10, 2005. This second search was conducted only on the range of the injured inmate.

[7] Following the employer's unsuccessful effort to resolve the matter, HSO Mattson investigated on February 10, 2005, into B. Pond's continued refusal to work.

[8] HSO Mattson decided that a danger did not exist for B. Pond and his colleagues because:

• during the search conducted in the recreation area and the inmates range on February 9, 2005, blood was found in the cell of the inmate and on the bed sheet in the cell of another inmate on the same range but no evidence of an assault, ie. blood, was found in the recreation area;
• as a result of this first search, the Institution Special Police (ISP) and the Deputy Warden believed that the evidence they found indicated the attack occurred in the inmates range;
• since the suspected time (8 February, 2005) of the injury, normal operations within the Institution were conducted without incident;
• however, at about 08:00 on February 10, 2005, the Warden decided to conduct an exceptional search under section 53 of the range of the injured inmate only and no weapon was found;
• at the time of HSO Mattson's investigation, the inmates did not appear to be in an agitated state.

[9] HSO Mattson confirmed his decision of absence of danger in writing on February 10, 2005.

[10] On October 24, 2005, Michel Bouchard, advisor for the Union of Canadian Correctional Officers, UCCO-SACC, CSN Ontario Union, on behalf of B. Pond, wrote to withdraw the appeal. On October 28, 2005, B. Pond also wrote to confirm his request that the file be closed.

[11] I hereby accept the employee's withdrawal, and confirm that the file is closed.

Summary of Appeals Officer's Decision

Decision No.: 05-044

Applicant: Blair Pond

Respondent: Correctional Service of Canada
Millhaven Institution
Ontario

Keywords: Decision, refusal to work, refusal to perform the duties as a correctional officer which included close contact with the inmates, no exceptional search was conducted in all the MAU ranges following an assault between two inmates, a weapon could have been hidden anywhere within the MAU

Summary:

The applicant appealed a decision of no danger issued by a health and safety officer following his refusal to work. The applicant withdrew his appeal and the appeals officer closed the file.