HomeMy WebLinkAbout1986-0234.Dubowik.88-06-08Between: -------
Before: -----_
0234/86
0046/86
IN TAE UATTER OF RN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Befdre
THE GRIEVANCE SETTLEMENT BOARD
.OPSEU (F. Dubowik) Grievor
and
The Crown in Right of Ontario
(Ministry of Community & Social Services) Employer
R.L. Verity, Q.C. -Vice-Chairman
I.J. ThOlllSOIl Uember
W.A. Lobraico Member
For the Grievor: N. Coughlan - ------------- Grievance Officer
Ontario 'Public Service Employees Union
POT the Employer: R.J. Anderson _-------_~__---- Senior Solicitor
Ministry of Community & Social Services
Hearings : September 22, 1986 ------_- April 3, 13, 14, 15. 16. 1987
July 14, 15, 20, 1987
October 1, 2, 13, 15, 21. 1987
December 16, 17, 1987
February 1, 2, 1988
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DECISION
Francis J. Dubowik is a long service employee who at all
relevant times worked as a Residential Counsellor 2 at Huronia
Regional Centre (H.R.C.) in Orillia. His initial employment at
Huronia dates back to September, 1975 under a series of
appointments. His actual seniority date is August 17, 1'
term
978.
On January 24, 1986, Mr. Dubowik was suspended without pay
!
under s. 22(l) of the Public Service Act for suspected resident abuse
pending an investigation of his conduct. He was discharged on March
14, 1986 (retroactive to January 24) for "unacceptable behaviour" and
"abuse of residents". In two separate grievances, Mr. Dubowik alleged
that he was suspended and discharged without just cause. The remedies
requested were reinstatement with full remedial redress.
H.R.C. is a large provincial facility designed to serve
developmentally handicapped residents. With a staff of 1,200, the
facility provides residential accommodation, food, clothing,
programming and care for some 800 residents; Residents attend this
facility on a voluntary basis.
From January, 1984 until the date of his dismissal, the
grievor worked as a Residential Counsellor 2 on the third floor of "0"
Cottage. In 1985 and 1986 "O-3", as it was known, accommodated some
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27 multi-handicapped male residents who ranged from moderate to severe
levels of retardation. Many of the residents exhibited behavioural
problems which made them aggressive, unpredictable and difficult to
manage. The physical working environment on 0-~3 can best be described
as poor. Basically, the ward was an open concept with virtually no
privacy for either residents or staff. There is no dispute that the
23 staff on O-3 worked under difficult and unpleasant circumstances.
The Board held an exhaustive enquiry into the merits of
these grievances over 18 separate hearing days. In all, some 12
witnesses testified for the Employer, and 8 witnesses on behalf of the
Union. In addition, the Board took a view of 0 cottage on July 20,
1987, prior to the closure of the cottage as a residential facility.
InJanuary, 1986, O-3 Supervisor'Mrs. Bridget Sowieta,
became aware of staff complaints regarding the grievor's behaviour. -_ -.
Mrs. Sowieta insisted that these .complaints be reduced, to writing.
Apparently, the written complaints contained numerous allegations of
resident abuse and resident neglect. These allegations were promptly
brought to the attention of senior management.
On February 3, an internal Investigation Committee met to
review the allegations. Subsequently on February.27, H.R.C.
Administrator D. J. Cornish held a pre-disciplinary hearing. The
purpose of the hearing was primarily to consider the recommendations
of the Investigation Committee report. Both meetings took place in
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the presence of the grievor and a Union representative. The identity
of the accusers was not divulged. However, the Board is satisfied
that the Union was given sufficient information to comprehend the
nature of the allegations against the grievor.
Administrator Cornish terminated the grievor's employment on
the basis. of 12 separate allegations of misconduct. Some of the
allegations are indeed serious. The dismissal letter, dated March 24,
1986, (Exhibit 3) read, in its entirety, as follows:
"I have now had an opportunity to review the
allegations made against you which were discussed
at our meeting with you and your OPSEU
representative on February 27, 1986.
Thee allegations made againstyou are a8 follows:
l‘..
2.
3.
4.
5.
In the fall of 1985 you attempted to deprive
residents of their food by removing pork chops
from their plates..at supper time.
On or about January 17, 1986 you permitted
resident G.D. to put chicken bones in his
mouth, thus endangering his health and safety.
On or-about November 26, 1985 and on numerous
other occasions in the fall of 1985; you
directed and encouraged resident G.D. to
perform acts of gross indecency in the
presence of other staff and residents in
cottage O-3.
In early January 1986 you directed and
encouraged residents J.G. and G.B. to perform
a homosexual act in cottage O-3 in the
presence of other staff and residents.
On repeated occasions during 1985 you directed
resident J.G. to act as your bodyguard, for
the purpose of keeping other residents away
from you. On or about January 11, 1986 you
directed and encouraged resident J.G. to
6.
1.
8.
9.
.lO.
11.
physically push other residents away. from you,
thus causing resident H.K. to injure himself.
When Mr. K. became further upset, you failed.
to, assist other staff in placing Mr. K. in
restraints.
On numerous occasions during 1985 you
required, used and encouraged residents to
perform some of your work duties in relation
to washing and bathing and dressing of other
residents, cleaning up after meals and
cleaning up faeces and urine.
On or about January 17,. 1986 you required a
'number of residents to shower communally and
you required resident S.H.to wash the other
residents whilst you directed a shower hose at
them.
On several occasions throughout 1985 you left
the medication room in cottage O-3 unlocked
and required the resident J.G. to guard the
door in your absence. Additionally during
this same period you regularly left doors to
the kitchen unlocked.
.On several occasions during the fall of 1985
you have verbally abused the residents by
referring to them as 'filthy pigs' and have
told other staff to. 'get. the residents' filthy
feet off a staff bench'. .
On numerous occasions during the. course of
your work you have deliberately avoided
touching the residents in your care and have
thus neglected your duties to provide the
residents with appropriate personal care.
On repeated occasions over the last 3 months
you have harassed, provoked and teased the
resident G.W., by telling him to 'dig worms'.
On at least 'one occasion in this same time
period, you instructed resident G.W. to lie on
his stomach with face to the floor and his
hands behind his back. This caused the
resident to become even more upset. During the latter part of 1985 you have deliberately
given this same resident confusing directions,
thus causing the resident to become extremely
upset and agitated.
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12. YOU have in addition during 1985 repeatedly
been late for work, taken extensive lunch and
coffee breaks without the authorization of
your supervisors and you have also avoided
assisting with general duties and cottage
routines involving resident care.
I am satisfied that these allegations have.been
substantiated. 'Your behaviour is totally
unacceptable and you have contravened the Ministry's Standards of Conduct and Disciplinary
Guidelines, paragraphs 1, 3, 6 and 10.
YOU are aware of those standards covering
unacceptable behaviour and abuse of residents.
Indeed, when you were reprimanded on December 3,
1984 in respect of your unauthorized absence from
work you were provided once again with a copy of
the Standards of Conduct.
Given the circumstances and the facts of this
matter I have no alternative but to dismiss you
from your employment at the Huronia Regional
Centre effective January 24, 1986."
At the hearing, Counsel for the Employer attempted to
introduce additional allegations of misconduct not. teferred.to in the
dismissal letter. The Board has not considered any Luch additional
evidence. The Employer based its decision to dismiss the grievor on
the.12 allegations specified in Exhibit 3. It would be improper-i we
think, to permit the Employer to attempt to buttress its case during
the arbitration proceedings.
The standard of proof which the.Employer must bear is, of
course, the civil standard: namely, proof upon the balance of
probabilities. That standard is not inflexible and the probability
will increase with the gravity of the alleged misconduct and the
consequences flowing'as a result of an affirmative finding. In that
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regard, the Board accepts the'frequently quoted rationale of Denning
L-J., in Bater v Bater [1950], 2 All E.R. 458 at p. 459:
"The difference of opinion which has been evoked
about the standard of proof in these cases may
well turn out to be more a matter of words than
anything else. It is true that by our law there
is a higher standard of proof in criminal cases
than in civil cases, but this is subject to the
qualifications that there is no absolute.standard
in either case. In criminal cases the charge must
be proved beyond reasonable doubt, but there may
be degrees of proof within that standard. Maw great Judges have said that, in proportion as the
crime is enormous, so ought the proof to be
clear. So also .in civil cases. The case may be
proved by a preponderance of probability, but
there may be degrees of probability within that
standard. The degree depends on the
subj,ect-matter. A civil Court, when considering a
charge of fraud, will naturally require a higher standard of probability than that which it would
require if considering whether negligence were.
established. It does not adopt so high a degree
as a criminal Court, even when it is considering a
charge of a criminal nature, but still it does require a degree of probability which is
commensurate with the occasion.,"
Accordingly, where there are allegations of serious personal
misconduct, as there are in this case, the burden is upon the Employer
to satisfy the Board of the truth of its allegations upon the balance
of probabilities by clear and cogent evidence.
The grievor has denied the existence of most of the serious
allegations contained in Exhibit 3. Accordingly, credibility
determina-tions are of crucial importance. In making those
determinations, the Board is mindful of the rationale of-Mr. Justice
F
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i
O'Halloran of the British Columbia Court of Appeal in Faryna v. Chorny
119521 2 D.L.R. 354 at pp. 356-8 :
"The credibility of interested witnesses,
particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the
personal demeanor of the particular witness
carried conviction of truth. The test must
reasonably subject his story to an examination of
its consistency with the probabilities that
surround the currently existing conditions. In
short, the real test of the. truth of the story of
the witness in such a case must be its harmony
with the preponderance of the probabilities which
a practical and informed person would readily
recognize as reasonable in that place and in those
conditions. Only thus can a Court satisfactorily
appraise the testimony of quick-minded,
experienced and confident witnesses, and of those
shrewd persons adept in that half-hidden lie, and
of long and successful experience in combining
skillful exaggeration with partial suppression of
the truth. Again a witness may test.ify what he
sincerely believes to be true, but'he may be quite
honestly mistaken. For a trial Judge to say 'I
believe him because I judge him to be telling the truth' is to come to a conclusion on consideration
of only half the problem. In truth it may be
easily be self-direction of a dangerous kind..."
Similarly, in the resolution of contradictory evidence Mr.
Justice O'Hallaran made the followi ng note-worthy comments .in Weeks
v. Weeks 119551, 3 D.L.R. 704 at p. 709:
"In such cases a Court must look for the balanced
truth in the corroborative evidence if such
exists, and in any event measure all the evidence
perspectively by the test of its consistency with
the preponderence of probabilities in the
surrounding circumstances...."
5
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The grievor is alleged to have violated four separate
sections of the Ministry'i Standards of Conduct and Disciplinary
Guidelines (dated November, 1983):
_.
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The grievor testified that in his opinion there was a direct
connection between his dismissal and the events following a
residential outing to the Lindsay Fair on September 19, 1985.
Apparently on that d-ate, some eight residents accompanied by seven
Residential Counsellors attended the Lindsay Fair. The evidence
established that staff and some residents, including resident R.J.,
consumed a small quantity of beer in the beer tent during lunch.
The‘grievor was in charge of the day shift (commencing at
6:30 a.m.) on'september 20, 1985. Apparently, resident R.J. failed to
respond to a breakfast call and was obviously ill. The grievor
testified that Residential Counsellor Marcel Maurice advised him, in
referring to resident R.J., that "he would be okays- he was just hung
over". The grievor prompt.ly.called the Health Nurse shortly before
8:00 a.m. and shortly thereafter, R.J. was taken to the infirmary.
Several hours later, resident R.J'. died. He was 25 years of age and
in apparent good health. The grievor testified that within a week,
Residential Counsellor Harvey Barkley told him, "that R.J. had seven
or eight bottles of beer” at the Lindsay Fair. Barkley denies~ that
statement. The grievor acknowledges that he talked extensively about
the Fair episode and expressed strong criticism of staff conduct. In
the grievor's opinion, the staff, and in particular Residential
Counsellor Harvey Barkley, resented the betrayal of confidence.
Counsel for the Employer acknowledged that none of the
grievor's actions or omissions resulted in actual physical harm to any
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resident. However, Ms. Anderson argued that the evidence established
that the grievor was unfit for employment at H.R.C. due to violations
of the Ministry's Standards of Conduct by his repeated acts of abuse,
omission and resident neglect. Ms. Anderson. submitted numerous
arbitral precedents in support of her position.
The Union contended that on the alleged unsatisfactory
evidence adduced, the grievor should be reinstated and fully
compensated. Ms. Coughlan maintained that the grievor was the victim
of a conspiracy instigated by personal dislike and his actions
following the Lindsay Fair. Ms. Coughlan argued that the grievor must
not be disciplined for violations of improperly communicated standards
of conduct. In the alternative, she argued that the Board should
exercise its discretion in the substitution of a lesser penalty.
* In this matter, ; the Board makes no attempt to set out the
evidence of the 12 allegations against the grievor. Suffice it to say
that we have considered all of the evidence carefully and after much
deliberation. The.absence of timely Occurrence Reports makes it
imperative that the evidence be viewed with the utmost caution.
Indeed, no discipline was imposed on any of the grievor's accusers for
failure to file occurrence reports in a timely fashion.
There is no dispute that the grievor was not liked by many
of his peers, all of whom were bargaining unit members. However, on
the evidence adduced, there is simply no substance to the conspiracy-
I
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theory. Simply stated, the Board rejects the grievor's allegation
that the incident surrounding the Lindsay Fair played any part in his
ultimate dismissal. Nevertheless, in the absence of fresh occurrence
reports, the Board is unable to accept the evidence in its entirety of
either the Ministry or the Union witnesses. However, on all the
evidence, the weight of probative and relevant evidence weighs heavily
against the grievor.
The grievor's testimony is perplexing. He conveyed the
impression of a quiet, yet well spoken man. Obviously, he isolated
himself from most of the staff shortly after Mrs. Sowieta became
Supervisor in January of 1985. Until ~that point in time, the grievor
was regarded .as a satisfactory employee. The grievor became sceptical
of the numerous reforms introduced by Mrs% Sowieta to improve the
quality of, resident life on O-3. He disliked her management style and
satisfied himself that she played favourites. Nevertheless, he
participated in various forms of program delivery, took residents for
walks, and by all accounts was particularly successful in dispensing
medication. From his ownadmission, he begandrinking heavily in the
fall of 1985. In his own words: "I used to dread going into work".
The grievor's unwarranted criticism of staff conduct at Lindsay Fair,
his general unwillingness to perform unpleasant Residential Counsellor
duties and increasingly peculiar conduct further isolated him from his
peers. We accept the grievor's testimony that by the fall.of 1985 he I
had so isolated himself that he worked virtually alone on many
occasions in the north end of the ward.
i
However, when the grievor's version of the events is tested
against the probabilities, his evidence is not persuasive. If the
Board were to accept his testimony, we would be required to find that
Supervisor Bridget Sowieta, Shift Supervisors Mike VanNoort, and Doug
Leigh and Residential Counsellors Cathy Leblanc, Marcel Maurice, John
Vandemeer and Dennis Bond gave false and fabricated evidence. This we
cannot do.
In our opinion, the grievor's testimony is a mixture of
truth, partial-truths, and outright fabrications. In some respects,
the grievor has deliberately attempted to mislead the Board. For
example, the grievor was adamant. that he submitted a written request
for a transfer to Mrs. Sowieta in April 1985. .Mrs. Sowieta denies any
such request. There was no dispute that Mrs. Sowieta granted several
staff requests for transfer after advising staff that she intended to
institute changes. Had the grievor made a'transfer request as
alleged, in all likelihood.the request would have been granted.
Similarly, had the grievor's request been refused, in all probability
he. would have taken. further action. On the grievor's own evidence, he
took no action to pursue the transfer. The Hoard accepts Mrs.
Sowieta's evidence.
In connection with the R.J. incident, the grievor's account
of the events of the morning of September 20, 1985 failed to disclose
that he did not arrive at work as alleged prior to 7:00 a.m. The
Board accepts Marcel Maurice's evidence that the grievor arrived
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shortly before 8:00 a.m. In addition, we do not accept the grievor's
evidence that Barclay told him that resident J.R. had consumed seven
or eight bottles of beer at the Lindsay Fair. There was no reason for
Barclay to have made that statement when the facts were to the
contrary. .
The grievor failed to recall discussions with Shift
Supervisors Doug Leigh and Mike VanNoort, regarding difficiencies in
time keeping and work performance. The evidence of both Shift
Supervisors confirmed that such conversations did occur;- .,
The grievor maintains that he was never instructed not to
permit residents to perform the duties-of. Residential Counsellors.
The evidence of Mrs. Sowieta, Doug Leigh and to a lesser extent,
Michael VanNoort is to the contrary. The Board~is satisfied that the
grievor fully,understood the policy that residents were not to perform
staff duties.
.Having considered all of the .evidence, we reach the sad
conclusion that the grievor has fabricated much of his testimony in
the denial of many, if not all, of the most serious allegations
against him.
There is no dispute that some of.the residents on O-3 were
sexually active and that the practice of masturbation was apparently
widespread. In fact, there was no written policy at H.R.C. on
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resident sexual activity. However, there was at least a general
understanding that resident masturbation would~ be tolerated in private
areas on the ward including the bathrooms.
Perhaps the most damaging allegation against the grievor was
alleg.ation number 4. Residential Counsellor Harvey Barkley testified
in some detail that the grievor directed and encouraged residents
J.G. and G.B. to perform a homosexual act (anal intercourse) on an
unspecified date in January, 1986. According to Barkley's testimony, .
Residential Counsellor Dave Nichols is alleged to have witnessed the
event without making any attempt to stop it. Both the grievor and
Nichols denied that the incident occurred at all. Mr. Nichols
received a written reprimand for his alleged involvement. That issue
is currently under adjudication before a separately constituted Board.
After due consideration, the Board is not satisfied that the
standard of proof has been met. In our opinion, the uncorroborated
testimony of Mr. Barkley, repleat as it was with contradictions and
uncertainties, is .simply unreliable. When he testified on the first
occasion before this Board, Mr. Barkley was satisfied that the
incident occurred sometime in Januar'y, 1986. However, in reply
evidence he acknowledged that he told the Nichols arbitration hearing
that the incident took place on De.cember 26, 1985. Mr. Barkley
prepared no written report at the time of the alleged incident and
when requested to do so by Mrs, Sowieta, he delayed many weeks before
.submitting that report. The reportdated March 10, 1986 is incomplete
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and simplistic, to say the least. In an accompanying diagram prepared
by Mr. Barkley, a cleaner was alleged to have witnessed the incident.
The Board heard no evidence from the cleaner or for that matter from
any witness to corroborate the incident. While the incident may have
occurred, the Board is not satisfied that Mr. Barkley was a reliable
witness.
However, allegation number 3 is qu ite another matter. In
this regard, the weight of credible evidence is against the ~grievor.
The objective testimony presented by Residential Counsellors John
Vandemeer and Marcel Maurice, satisfied the Board that the grievor did
direct and encourage resident G.D., by words or ges,tures or both, to
masturbate in a ser'ies of incidents between May and December of 1985.
The weight of evidence satisfies us that the resident was sexually
active and capable of complying with the grievor's commands. Based .on
the evidence adduced, resident G.D. was not capable of understanding
the nature and consequences of his acts, nor of giving consent. In
these circumstances, the grievor's conduct in directing and
encouraging resident G.D. to masturbate in a public area of the Ward
and in the presence of other residents can best be described as a
marked departure from decent conduct expected of thee average Canadian
in general, and a Residential Counsellor in particular. On the
evidence, the Board is satisfied that the allegation of gross
indecency was established. The grievor's preoccupation with resident
G.D.'s sexuality was unwarranted, inappropriate and indeed peculiar.
.,
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Residential-Counsellor Cathy Leblanc was the sole witness to
testify on the first and second allegations. Allegation number 1
involved the alleged removal of pork chops from residents' plates.
The second allegation claimed that the grievor had permitted resident
G.D. to put chicken bones in his mouth. Essentially, the grievor
failed to recall either incident. The Board is satisfied that Cathy
Leblanc, a recent graduate of Georgian College, ,was candid,
forthright, and in general a credible witness.. Admittedly, she had.
one humiliatingencounter with the grievor shortly after her arrival
at H.R.C. in July, 1985 regarding the clipping residents' nails in the
medication room. However, we do not find that incident to have so
embittered Miss Leblanc that she was unable to give objective
testimony. Clearly, the grievor's practice had been to debone meat
and to remove any bones for his dog. In our opinion, the grievor may
well have been performing this task with the intention of returning
the meat to the residents' plates. Accordingly, the standard of proof
has not been met in allegation number 1. However, Miss Leblanc's
vivid testimony concerning the chicken bone incident is compelling.
The Board does not hesitate to accept her testimony that the grievor
gave chicken containing bones to resident G.D. and appeared to be
amused by the resident's apparent distress. We accept Miss Leblanc's
testimony that the resident" was blue in the face and was choking".
Resident G.D. has .had a long history of eating anything placed in
front of him. By his actions, the grievor has demonstrated a callous
disregard for the resident's health and safety.
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The fifth aflegation, in part, charges that resident J.G.
acted as a bodyguard for the grievor. We would disagree with the
characterixation of bodyguard. There is no dispute that resident
J.G. liked the grievor and followed him constantly. He was rewarded,
quite improperly we think, with cigarettes, cigarette butts and tea.
One of the grievor's acknowledged strengths was that he knew e,ach of
the residents and was quite able to look after himself. Resident
H.K. did sustain a minor injury as alleged on January 11, 1986, but
through no fault of the grievor. The Board does, however, accept
Cathy Leblanc's evidence that the grievor failed to assist her in
placing the resident in restraints following the injury.
The grievor candidly admits the sixth allegation that he
used residents to.perform unpleasant tasks such as cleaning up faeces
and urine. Similarly, the gri~evor used residents to wash, bathe and
dress other residents. Despite the grievor's denial, the Board is
satisfied that he was well aware of the policy that residents were not
to perform the duties of Residential Counsellors. The grievor,
however, persisted in this practice.
The seventh allegation involved communal showering of
residents which was admitted by the grievor, although he was unable to
recall the date. We do not believe this to be a serious allegation in
view of the fact that many of the shower stalls were not in proper
working order.
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The eighth allegation has been established - that on several
occasions in 1985, the grievor left the medication room door
unlocked. The irony of this allegation is that, while the grievor may
have left the medication room unlocked on occasion, he was, in fact,
generally recognised by most witnesses as one of the most proficient
employees in the dispensing of medication.
The Board is satisfied that the ninth allegation, namely the
use of derogatory language, was e~stablished. In that regard, the
Board accepts the testimony of Marcel Maurice and Mike VanNoort.
However, the grievor's denial of the allegation that he used.
derogatory terms in relation to the residents, does not enhance his
credibility.
On the evidence adduced, there is some truth.to the tenth
allegation that the grievor deliberately avoided touching residents.
In our opinion, he was unduly concerned with hygiene and avoided, to
the extent possible, any direct resident contact.
On the evidence of Mike VanNoort, the Board is satisfied in
the eleventh allegation - that the grievor did give conflicting
instructions to resident G.W. in 1985, the effect of which was to
agitate the resident. For some reason, the grievor appears to have
derived satisfaction in upsetting this particular resident.
The final allegation of repeated tardiness and extended
lunch breaks was established by the evidence of Residential
Counsellors Dennis Bond and Marcel Maurice. We accept the evidence of
both Residential Counsellors as being totally credible and reliable.
The Board is satisfied that the shift supervisors, both bargaining
unit members at the time, were well aware of these areas of misconduct
but made no attempt to correct the situation.
None of the witnesses called by the Union had direct
knowledge of any of the more serious allegations against the grievor,
with the exception of Dave Nichols. Mr. Nichols was not an impartial
witness. On occasion, he was evasive and not particularly objective.
It was Mr. Nichols who subscribed to the conspiracy theory. Other
Union witnesses gave general evidence from their various perspectives.
The Ministry definition of resident abuse as contained in
the Standards of Conduct and Disciplinary Guidelines merits
repetition:
Definition of Abuse
The unwarranted and/or inappropriate use of
physical force, psychological stress or sexual
involvement, or any unwarranted, inappropriate act of omission, (including action which leaves no
physical. scars, but results in emotional damage)
by staff interacting with residents, wards and
trainees.
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Resident abuse is a very broad and all-encompassing term.
Indeed, resident abuse may range from physical force to an act of
omission. It may include improper, unwarranted, or negligent conduct,
in dealing with residents. Inevitably, the facts will determine the
disposition of each case. In the instant dismissal grievance, the
grievor's conduct amounts to resident abuse despite the fact that
there was no evidence of actual physical harm to any resident.
To summarize, the Board makes the following findings of
fact:
(1) The grievor's actions constitute resident abuse and
inappropriate conduct in allegations 2, 3, 6, 9, 10 and 11
Of.Exhibit 3, contrary to Rule 10 of the Ministry Standards
of Conduct.
(2) The grievor has failed to comply with .the Ministry
policies generally, and in particular as outlined in
allegations 6, 10 and 12 of Exhibit 3, contrary to Rule 6 of
the Ministry Standards of Conduct.
(3) The grievor has failed to comply with the daily
punctuality requirements as in allegation 12, contrary to
Rule 1 of the Ministry Standards of Conduct.
i.
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(4) The Board finds that the Ministry did not establish
upon the requisite test, allegations 1 and 4 of Exhibit 3.
The grievor has no disciplinary record. However, on
December 3, 1984, he did receive a letter for failure to comply with
policy guidelines co-signed by H.R.C. Senior Manager Randy Hadley and
then Supervisor W. E. Smith. The letter resulted from an incident on
November 28 whereby the grievor and Dave Nichols were absent from work
for some five hours without obtaining proper authorization. The
letter specified that time off could only be granted by a Residential
Counsellor 4. The evidence established that the grievor and Nichols
had sought permission to be.absent from a Residential Counsellor 2.
In the result, the grievor lost five hours pay. Apparently, the
letterwas not placed in the grievor's personnel file. In the
circumstances, the letter can be properly characterized as a letter of
instruction intended to provide guidance as to acceptable conduct. In
our opinion, the letter is not a disciplinary response,
The rema
imposed. Under s.
ACt, the Board has
ning issue is the propriety of the penalty
19(3) of the Crown Employees Collective Bargaining
broad remedial authority to substitute a penalty
where the discipline imposed is found to be excessive in all the
circumstances. However , the discretionary power is substantially
limited by the inclusion of s. 19(4) of the Act which reads as
follows:
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Where, in exercising its authority under
subsection (3), the Grievance S'ettlement Board
finds that an employee who works in a facility,
(a) has applied force to a resident in the
facility, except the minimum force necessary
for self-defence or the defence of another
person or necessary to restrain the resident;
or
(b) has sexually molested a resident in the facility,
the Grievance Settlement Board shall not provide
for the employment of the employee in a position
.that involves direct responsjbility for or that
provides an opportunity for contact with residents
in a facility, but the Board may provide for the
employment of the employee in another
substantially equivalent position.
Under s. 19(5)(a)(ii) of the.Act, a "facility" is defined to
include "a facility. under the Developmental Services Act". Obviously,.
the f,acts before the Board do not involve the use of excessive force
within the meaning of 19(4)(a). However, in our opinion, the
grievor's active encouragement of resident masturbation is a form of
sexual molestation as contemplated by s. 19(4)(b) of the Crown
Employees Collective Bargaining Act.
On all ,the evidence, the grievor's conduct cannot be
characterized as momentary aberrations or transitory lapses.
Further, an arbitration board is rarely inclined to grant
any form of discretionary relief to a-grievor once a finding is made
that he has fabricated material portions of his testimony. .See, for
,
i i.24 _
example, Koch and Ministry of Health (Hamilton Psychiatric Hospital)
2/75 (Beatty); and Re Harris and Ministry of Community and Social
Services (Cedar Springs Psychiatric .Hospital) 7/75 (Beatty).
For the above reasons, the Board is not persuaded that this
is the appropriate case to substitute any form of lesser~ penalty.
The evidence and argument in these grievances were primarily
directed to the merits of-the gismissal grievance. In the
circumstances, we are satisfied that the Employer had just cause to
suspend the grievor as it did, on January 24, 1986 pending an
investigation of suspected resident abuse. Suspension is an
appropriate Employer response in circumstances where there are
allegations of resident abuse. In the result and for the reakons
given, the Board finds that the grievor was discharged for just
cause. Accordingly, both grievances are dismissed.
DATED at Brantford, Ontario, this 8th day ofJune, 1988.
R. L. VERITY, Q.C. - VICE-CHAIRMAN
“I dissent” (Dissent attached)
I. J. THOMSON - MEMBER
'.
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w. A. LOBRAICO -%&R
DISSENT
This has been a very difficult and lengthy hearing and I can appreciate the
difficulty the Chairman must have had in writing this Award.
However, I wish to disassociate myself from some of the remarks and conclusions
reached in the Award which are attributed to the panel who heard the case.
I am not saying that the Grievor should be held blameless for many of the events
that occurred, neither do I believe that he should bear the blame for matters
that were condoned by the Staff and tolerated by the Shift Supervisors.
He was accused and held~ responsible for allowing and using residents to pe.rform
‘some of the duties of the Staff. He testified, and so did’others, that this was
tolerated because there was a shortage of Staff. In addition, some of the
residents had been performing these duties when he came to “0 Cottage”.
The Staff stated that certain residents associated themselves with the Staff and
considered themselves as part of the Staff. The residents did not suffer any
harm in performing these duties even if it was against the ill-defined policy
which was not properly communicated to all the Staff by written directive.
There was a shortage of staff and the evidence was that the grievor worked many .
times the North end alone because some of the Staff did not care for his cqmpany.
I feel certain that some of the problems were a result of an unfortunate
incident. This occurred as a result of the trip to the Lindsay Fair and the
subsequent actions of the grievor in calling attention to the other authorities
what had occurred. It seems that this event acted as the catalyst in triggering
- 2 -
The evidence was that after this occurrence even some of the other Staff who had
been fairly friendly to the grievor, drew away from him.
.As for the evidence of the amount of beer that R.J. drank at the Fair, the
witnesses' testimony ranged from a couple of cups to seven or eight.
The grievor’s only objection to the incident was that he thought it unfair that
they should have neglected to advise the night shift of the fact that R.J. had
had something to drink at the Fair.
On page 13 of the Award in the first paragraph the Award states:
“If the Board were to accept his testimony we would be required to find that
Bridget Sowieta, Shift Supervisor Mike Van Noort and Doug Leigh and Residential
Counsellors Cathy Leblanc, Marcel Maurice, John Vandermeer and Denis Bond gave
false and fabricated evidence. This we cannot do.”
It also goes on to say in the second paragraph that ,the Grievor’s testimony is a
mixture of truths, partial truths and outright fabrications.
I am not saying that all their evidence were lies and false but I believe that as
in many situations like this, there are three sides to most stories; theirs, the
Grievor’s and the truth. I am not prepared to accept the testimony of any of the
witnesses as absolute truth.
When Shift Supervisor Doug Leigh was soliciting statements from the witnesses he
said “We have to show a solid front in this, Bridget wants this and it will go no
further.”
- 3 -
Some of the witnesses were reluctant to give statements put were told that it was
only being done so Bridget could move.the Grievor out of the Cottage.
When Supervisor Sowieta took charge, some of the Staff were transferred out and
she brought in a number of new Staff. For the first time in this Cottage, there
were female R.C.'s, many of whom had recently graduated from Georgian College.
It was only after this, that problems developed in 0 Cottage among the Staff.
Pridr, all P.D.R.' s of the Grievor .(Ex. 22) and even the. incompleted (Ex. 9)
showed the Grievor as '@Conscientious in his duties. Performs tasks well --
Improvement needed in areas of confidence, self esteem and independence for
duties of P.I.C."
EX. 15 thanked him for arranging and implementing a new direction for 03.
Marcel Maurice testified that the Grievor was in charge of his clients and was
good to them. He knew how to diffuse situations before they became
uncontrollable and it became necessary to use mechanical restraints. The Grievor
testified he did not like using restraints.
After the new Staff came, there seemed to be 'a change in the Ward. The,
Supervisor took great pride in the fact that she was known around H.R.C.. as the
'Iron .Lady'. Everyone was-'aware of this and governed themselves accordingly.
They hung around her office when she was on the Ward'and this is where many of
the new policies were discussed.. Since the Grievor and a few of the Staff were
not included in this group, they were not kept advised of changes. No written
directives were submitted in evidence regarding patient care or policy
procedures. I believe you had to be part of this group to be well informed.
The Shift Supervisors are primarily to blame for this and many other omissions.
Evidence was that no one ever spoke to the Grievor about his actions or short
comings. Much was made of the fact that the Shift Supervisors are part of the
Bargaining Unit and so were reluctant to take any action.
I do not agree with this. They are the first line of Supervision and as such have
a great responsibility to the residents and to the Staff. They are in charie of
a shift. This is .where the blame lies for this whole tragic situation.
No one on. Staff or the Shift Supervisors who condoned what the Grievor was
alleged to have done were ever disciplined for failing to perform their duty as
set out in the Standards of Conduet Ex. 6 #ll.
I am not going to go into each charge against the Grievor. S&e I have already
commented on and others are noi worth while.
Cathy Leblanc was so embittered at the Grievor that her evidence should not be
given too much credibility.
The accusation of leaving the door open in the Med. Room is hardly worth
commenting on. The evidence was that the drugs were in a separate locked
cabinet. Any-Y 1 if this was such a great concern why was he assigned to
dispensing medicine most of the time, by the Shift Supervisor. If this was such
a great concern it could have been easily corrected - just do not assign him
there.-
The lateness on lunch hours or the commencement of shifts was a common occurrence
by everyone and again this could have been easily corrected - advise him in
writing.
- 5 -
Reluctance to touch patients -These are frivolous allegations. Uncontradicted
testimony was that he was in charge of a program of personal hygeine to show
residents how to care for themselves. This could only be done by “hands on”
care.
As I stated at the beginning of this dissent I sympathize with the Chairman in
writing this Award. I’m sure it must have caused him many agonizing moments.
However I disagree with many of his conclusions and remarks.
I would have allowed the grievance and returned the Grievor to work under Article
19.3 of the Crown-Employees Collective Bargaining Act.
This is indeed a most tragic case with a very tragic conclusion.
I/ I.J. Thomson