An arbitration board has rejected a complaint by a union representing prison guards that overcrowding and staff shortages at a Toronto jail put the guards at risk.
The complaint, filed by the Ontario Public Service Employees Union against Ontario’s Ministry of Correctional Services, was thrown out. In July 2001 the union filed a grievance seeking that the number of staff be brought up to a full level. It also sought monetary compensation for the guards for the additional stresses and hazards they encountered.
What the union said
The union claimed overcrowding and staff shortages at the Toronto jail (also known as the Don jail) came about as a result of hastily-implemented policies of the provincial government. Between 1996 and 2001 the number of inmates housed at the prison increased from 525 to upwards of 700. During that time the number of staff was reduced by, the union said, 29 full-time and 11 casual officers.
This put a great strain on staff as even a small increase in inmates stretched the facility’s resources, the union said. For example, an inmate who needed to leave the jail had to be escorted by two guards. This was done by diverting guards from other duties, and could only be accomplished by canceling inmate activities, which increased tensions inside the jail, or by having the work performed by staff members as overtime.
It was conceded that compared to most other correctional institutions in Ontario the Don jail was a particularly noisy, smelly and unpleasant place to work, even when not overcrowded.
The union claimed the overcrowding subjected employees, especially the front-line correctional officers, to:
•high levels of job strain;
•increased risks to security; and
This resulted in some guards being exhausted, increased sick time and heightened tensions on and off the job.
This was a violation of Article 9.1 of the collective agreement between the union and the jail, which specified that “the employer shall continue to make reasonable provisions for the safety and health of its employees,” the union said.
What the employer said
Correctional Services did not dispute the jail had staff vacancies and high inmate counts, but said it responded to the staffing needs by offering additional work to guards as overtime. When there were insufficient volunteers it took measures to reduce the number of guards needed by, for example, canceling inmate programs or locking down parts of the jail.
It denied any of this created an increased risk to the safety or health of employees and claimed there were no other reasonable provisions it could have taken to make the situation better. It denied that guards working overtime resulted in security risks and said no such problems were ever reported to it by the union or by any individiual employee.
The board heard there had always been a core group of about 10 officers who worked a lot of overtime. They worked most of the overtime through the 1990s, and often put in 70 to 80 hours per week.
In 2001 four or five of them earned more than $100,000 as a result of their extra hours. There was even a competitive spirit among them – they’d try to outdo one another in numbers of hours worked and income earned.
There were, however, correctional officers who worked no overtime at all.
Chris Croisier, the president of the union local at the jail, said those who worked overtime had to work with those who didn’t. Those who did were often lazy, lethargic and tired at work, complaining of aches and pains and headaches and taking long breaks, he said.
This led to tensions between officers, and verbal altercations were regular occurrences.
It also led to “cutting corners,” a guard testified, and security lapses such as doors being left open which should have been closed.
Croisier said the motives of those who worked overtime were complex and varied and included “greed.”
Effects of excessive overtime – An expert opinion
Wayne Lewchuk, the director of the labour studies program at McMaster University, testified about the effects of overcrowding and understaffing on jail employees. He examined the long hours of work and health, reviewed a questionnaire put to all the guards and conducted a survey of 11 officers selected by the union, and concluded that:
•Correctional officers reported below average health status and high levels of hypertension and sleep disorders.
•The average guard worked more than 60 hours per week, with some working up to 80.
•There was a high probability that the reliance on overtime was adversely affecting the health of the officers, including those officers who worked normal hours.
•The culture of the workplace was such that it could not be left to staff to refuse working long hours –only if the employer increased staff would all posts in the jail be filled without recourse to overtime.
The board’s decision
The Ontario Crown Employees Grievance Settlement Board accepted some of Lewchuk’s general observations, but rejected most of his specific conclusions. He had not demonstrated that long work hours had caused adverse health, and had not considered such factors as genetics, family and overall lifestyle and its much more important role in determining an individual’s health, it found.
Lewchuk had not compared the health of Don Jail guards with those from other correctional facilities. There was thus no empirical evidence that reducing overtime would have reduced the risk associated with job strain by more than a marginal degree, the board concluded.
Moreover, Lewchuk’s survey results may have been skewed because 52 (out of 90) respondents may not have been a fair representation of the guard population. More importantly the guards would likely have known their answers were being sought for a study that could have resulted in increased compensation. Since they had an interest in the outcome, this may have biased their answers, said the board.
“Reasonable provisions” for the safety of employees do not require the elimination of all possible risks to health and safety. Some risks are necessarily inherent in the work or in the workplace, said the board.
In addition, “reasonable provisions” must be assessed in the context of the collective agreement in place at the time. That agreement allowed for double time (often double time and a half) for overtime work. The premium rate must be presumed to reflect what the parties considered was appropriate compensation for the additional exposure to the inherent risks their overtime entailed.
Even if working overtime was shown to be a
health risk there would still be the question of what reasonable provision an employer was obliged to take. In this case having made overtime voluntary was a reasonable and adequate step, it ruled.
The board added there was no doubt the working of overtime at the jail was voluntary. Some guards didn’t work any. After the overcrowding issue was dealt with the level of overtime work remained high as guards took over hospital escort work which had previously been contracted out to police officers.
Clearly there were some guards who welcomed the financial benefit of working overtime, it said. Working overtime increased officers’ control over the times when they worked and the assignments they drew. Combined with the extra pay it’s not at all clear that the net effect of overtime was an increase in job strain, the board said.
Decision not an endorsement of the employer’s actions
Inmate overcrowding at the jail had been eliminated by August 2003. The board made clear it did not approve of the actions of the Ministry of Correctional Services.
“This finding should not be taken as approval or endorsement of the Ministry’s having allowed the overcrowding to continue or of its having chosen to have so much work performed on an overtime basis by existing staff”, said the board.
The union’s grievance had been dismissed only because “on the evidence those choices were not precluded by Article 9.1 of the collective agreement.”
For more information see:
Ontario (Ministry of Community Safety & Correctional Services) v. O.P.S.E.U.
, 2005 CarswellOnt 6400, 140 L.A.C. (4th) 176
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.