'It seems like everyone was complacent, so having a protocol and training… is important'
“Any time you've got a protocol in place, the worst thing you can do is have it and then not actually follow it.”
So says Warren Whiteknight, a partner at Bergeron Clifford in Kingston, Ont., after the Ontario Grievance Settlement Board found that an employer didn’t fail to ensure a worker’s health and safety when the worker was injured after not following workplace safety procedures.
The now-63-year-old worker was a registered nurse at the Elgin-Middlesex Detention Centre (EMDC), a correctional facility in London, Ont. She spent 20 years working in hospitals before taking the position at the EMDC in the fall of 2018, which was her first experience at a correctional facility.
The worker’s job was in the EMDC’s admitting and discharge department, which involved assessing the health of incoming inmates after they were photographed, identified, and subjected to strip searches in a cell. Assessments if female inmates were done on a bench in a shower area with a window for correctional officers to view the proceedings.
It was required procedure for a correctional officer to stand beside the worker during the admission process so they could assess any escalation or unusual behaviour. A second officer would stand on the other side of a counter doing paperwork and could quickly come around the counter if needed.
Pushed back on safety procedure
However, on a couple of occasions, the worker pushed back on the procedure, as she told the correctional officers that she was discussing confidential medical information. She tried to move the officers farther away, after which a sergeant told her that a correctional officer must be close by for her own safety and the safety of the inmate, to ensure they don’t take anything from the medical assessment cart and to deter violent behaviour.
If an employer becomes aware that an employee isn’t following a protocol, it should ensure they’re educated about it, with the conversation documented in the employee’s file, says Whiteknight.
“There had been some conversations in the past, but it struck me as more anecdotal in [the sergeant’s] evidence, as opposed to documented,” he says. “Ultimately in this case it didn't matter, but the gold standard would be to make sure that those interactions and occurrences are documented in writing to the worker’s file and signed by the employee to acknowledge the protocol.”
On Feb. 1, 2019, the worker was summoned to admit a female inmate in the shower area. The worker was told that the inmate had been convicted for three attempted murders.
Before the assessment, the worker went to the office overlooking the shower area and asked the correctional officers for the information sheet on the inmate. The officers told her that the sheet wasn’t ready but the inmate had been co-operative.
Safety protocol not followed
The worker left the office and went to the shower area to meet the inmate without discussing which of the officers would join her, assuming that someone would follow her and join her for the assessment. However, no one followed her.
The worker entered the shower area and started the admission process with the inmate, as even though there were no correctional officers present, she could see three of them in the office.
The admitting process went smoothly until near the end 15 minutes later. The inmate asked a question about the worker’s family and, when the worker responded, the inmate made a reply and punched her in the face.
The worker fell backwards, hit the wall and some crates, and had a laundry tub fall on top of her. She believed she briefly lost consciousness. Correctional officers ran into the room and the inmate was restrained while three nurses arrived and escorted the worker to the EMDC’s health care area.
The worker was asked if she wanted to call the police and lay charges, to which the worker agreed. A workers’ compensation report was completed and the correctional officers observed that she was lucid with only a swollen and bloody lip. The police were called, and the worker chose to wait for them before going to the hospital for medical care.
Workplace injury
A female correctional officer drove the worker to the emergency department of a nearby hospital. The worker said that she had a headache and possibly a loose tooth, but she was otherwise fine. After being treated, the worker called for a ride and a correctional officer took her back to the EMDC and dropped her off at her car. The worker drove home without any problems.
The worker didn’t return to work, first receiving workers’ compensation benefits and then long-term disability benefits. She filed a grievance alleging that her employer and operator of the EMDC, the Ontario Ministry of the Solicitor General, failed to ensure her health and safety at work, violating the collective agreement and the province’s Occupational Health and Safety Act (OHSA).
The union argued that the employer failed to take reasonable precautions to prevent the assault, there was an undue delay in taking the worker to the hospital for proper medical care, and no one ensured she could safely drive home before dropping her off at her car.
The board noted the worker didn’t wait for the inmate’s assessment sheet to be completed and decided to proceed without a correctional officer present. This was her own choice and contrary to the employer’s safety procedures without any direction to do so, said the board, adding that the worker was familiar with the proper procedure and had been cautioned about it.
The board found that the worker acted contrary to required safety practices by proceeding alone and the assault was “a result of the contravention by the [worker] of institutional policies or procedures, and not because the employer failed to have in place reasonable provisions or precautions to guard against assault by an inmate.” There was no contravention of the OHSA or the collective agreement by the employer, the board said.
Oral reminders of protocols
“One of the most important factors was that one of the witnesses, the sergeant, had a specific recollection of having discussed this sort of thing with the worker previously,” says Whiteknight. “The adjudicator preferred the evidence of the sergeant who had the specific recollection.”
“The employer was really helped by the fact that there was helpful oral testimony,” he adds. “It was almost a bit of luck for the employer, that [the sergeant] had that recollection - you don't want to rely on that, you always want to have a more permanent record.”
Although it worked out for the employer, the conduct of the experienced correctional officers who had a line of sight to where the incident occurred could have been an issue, according to Whiteknight.
“The worker was found responsible because she proceeded without following the protocol, but I thought there was still some risk based upon the officers who were present who would have been aware of the protocol,” he says. “It’s not just that there’s a policy, but if you see someone else contravening the policy, you shouldn't just let it happen, you should go talk to them in that moment.”
The board also disagreed that there was an undue delay in taking the worker to the hospital, as she chose to wait to provide a statement to police prior to going to the hospital. The employer acted reasonably in providing for the worker’s health following the assault, said the board.
Reasonable precautions after workplace injury
As for the employer allowing the worker to drive herself home after being discharged from the hospital, there was no evidence that she requested alternative transportation or assistance or that the hospital had indicated she was unable to drive home, the board said, adding that the employer had no obligation to prevent her from driving home.
The board determined that the ministry met its obligations under the OHSA and the collective agreement by taking reasonable precautions and providing necessary support for the worker following the assault. The employer’s responsibility was to make “reasonable provisions” rather than guarantee a completely risk-free workplace, said the board in denying the grievance.
The case underscores the importance of having safety protocols and ensuring all employees are trained on them, according to Whiteknight.
“Nearly all the people involved in this were experienced, and sometimes employers get complacent that the training only needs to be done with the new people,” he says. “But sometimes it's people who've been there for longer who periodically need to be reminded even of basic things, because this incident clearly wasn't on anybody's radar – the worker put herself in danger and the other employees were available, but they just weren't there.”
“It seems like everyone was kind of complacent during the incident, so having a protocol and training, even with your senior people, on a regular interval is important.”
See Ontario Public Service Employees Union (Grievor) v. Ontario (Solicitor General), 2024 CanLII 106424.
