HomeMy WebLinkAbout1986-0918.Chan.87-11-26IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (John Ghan)
Before:
For the Grievor: J. Ford.
For the Employer:
lit?Z.riflgS:
and
The Crown in Right of Ontario
(Ministry of Health)
G. .J. Brandt
J. McManus
E. ksini
Vice Chairman
Member
Member
Grievance Officer
Ontario Public Service Employees Union
L. McIntosh
Law Officer
Crown Law Office Civil
Ministry of the Attorney General
January 15, June 29, July 09,
July 22, 1987
Grievor
Employer
. L
DECISION
This case concerns 2 grievances of. Mr. John Chan, a
Psychlatrlc Nurslng Asslstant, who was, until his discharge
effective July 31, 1986, employed by the nlnlstfy of Health at
the Queen Street Mental Health Centre.
As a result of an incident which allegedly occurred on July
28, 1986, in which lt was alleged that the grievor had sexually
abused 9 female patient, he was suspended on July 31 wi’thout pay
pendlng an lnvestlgatlon. Followlng the investigation the
Employer decided, on August 29, 1986, to discharge the grievor
effective July ~31st. The letter of discharge recites that the
Employer, in the,.pe~rson of Jane Taylor, the Administrator of the
Centre,. concluded that the grlevor had. “sexually assaulted” a
female patient and that he should accordingly be discharged. .
The grievances agalnst the suspension and the discharge are
now before the Board. It was agreed by the parties that the
matter would be heard in two stages; that ls, that the Board
would lnltlaly determine what, lf anything, happened on July 28,
1986 and, pending Its flndlngs on,that issue, would remaln selsed
of the question as to what penalty, If any, should be lmposed on
the gr lever .
On or about September 15, 1987 the Board lssued an lnterlm
award setting out its general findings of fact. That was done In
response to a~ request from the parties who were concerned to know
what general flndlngs of fact the Board Intended to make without
havlng to walt for the final award whose preparatlon would take
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some time. The award which follows 1s the full and complete
award concerning the first phase of these proceedings. It does
not touch on the subject of penalty. Nor does it dispose of the
grievances one way or the other for the simple reason that the
Board has not yet heard argument as to what consequences should
flow from its findings of fact. It 1s thus an award which sets
out In detall the evldetice and our conclusions thereon without
any conclusions as to how the grievances should be
The Queen Street Mental Health Centre 1s
hospltal consisting of. 4 unlts one of which
locked 14 bed crisis unit
for assessment and early
,.~
of patients in the units
dlsposed of.
a psychiatric
Unit 1-l) Is a
to which patients are directly admitted
treatment. The average length of stay
S 1 days after which they are elther
discharged out of the Centre or into other programs or unlts of
the Centre. The Head Nurse 1s ‘Us. Gail’Papple who reports to I&.
Anna Kutty., the Nursing Co-ordinator.~ Ms. Kutty in turn reports
to the Assistant director of Nursing (Opertlons), Joyce Rainville
who In turn reports to the Assistant Administrator (Nursing) Dr.
Wary Rakoczy.
On the evenlhg shift (3-11:30 p.m.1 on July 28, 1986 the
staff On duty were Raymonde (Ray) FlOOd, an'm who was the nurse in
charge, Elizabeth Peter, a graduate nurse, John (Carlos) Labodia,
a Hospital Attendant, and the grievor. The grievor had been
employed at the Centre since November 1972 and had been in Unit
l-l since August of 1983.
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On that evenlnq an lncldent alleqedly occurred lnvolvlng the
grlevor and a female patlent (who shall, In the lterests of
protecting her privacy, be referred to throughout this award as
DS). she was a young woman admltted into the ward on the
preceding Frlday. The medical records filed In evidence lndlcate
that she was “sexually obsessive. The records also lndlcate
frequent instances when she was observed in the nude and in bed
with other male patlents. She had also made some overtures oi a
sexual nature to female staff members.
The pr lnclpal witness for the Employer at the hearing was
Mr. Labodla. DS did not testlfy. The ,Board was advlsed that the
Employer had been In contact with her and had lntervlewed her on
the matter and ieqdested her to attend. However, she did not
attend at any of the 5 diys of hearing In thls matter. Subpoenas
w@re issued compelling her attendance but the Employer. found it
lmposslble to’serve them on her as she had moved from her address
and a new address was not known.
Mr. Labodla 1s a pre-med student who was working at the
Centre in the summer of 1986 as a Hospital Attendant. One of his
duties was to conduct 915 rounds, i.e. a check on the location
and well being of patients every 15 minutes. One of the patients
for which he was responsible on July, 28 was DS. When he was
doing the 5.30 p.m. check he could not find her In. her room or in
other parts of the unit and ultimately he decided to check the
female washroom which Is used by patients.
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What follows 1s an account of the evidence of Mr. Labodia AS
to the events which occurred from 5.30 p.m. to the end of the
shift. It will become apparent that, as regards the incident
itself, his evidence differs fundamentally from that offered by
the gr levor .
Hr. Labodla stated that he opened the door a crack (2
inches 1, was able to hear .falnt male groaning sounds, and called
out the name of DS. He received no answer and swung the door
fully open - but did not enter. He saw the grievor and DS both
facing ‘the mirror (with their backs to him) the grievor standing
directly behind DS and in contact with her. He stated that the
grievor was about 3’ from him and that nelther of them were at
the sink. . .
He observed that DS’ pyjama bottoms were on the floor around
her ankles and that she was, wearing her pyjama top which was
open. He stated that the grievor had his left hand on the left
hip of DS and that his.right hand was between his body and that
of DS and that he appeared to be fumbling with something, that he
appeared to be adjusting his trousers at the front. He stated
that he could see the grievor’s trousers moving at the back. He
did not see whether or not the grievdr’s fly was undone and he
did not see the grlevorls penis exposed.
He further stated that he observed what he described as a
“sexual motion”, a “swaying cf the hips forward and backward”,
“pelvic thrusts” of the grievor’s hips. The grievor and DS both
turned their heads and saw Mr. Labodia but nothlng was said by
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either of them or by Mr. Labodia., He stated that he was very
upset at thls point and felt that he had to leave. He estimated
that some 8-10 seconds passed from the time that he opened the
door to the tlme he closed it and left.
During the time that he was in the wash room he could hear
no water running, could see no paper towels on the floor or in
the grievor’s hands, and .that he could neither smell nor dld he
see any fetes on the floor or on DS’ pyjamas.
After he left the washroom he returned’ to the nursing
station slowly as, in hls words, he was in a state of shock as to
what he had just seen. He arrived back at the nursing station in
about half a minute and when he got there the grlevor was already
there. Present also at the nursing station were Ray Flood and
Elizabeth Peter. As soon as he arrived the grievor said *carlos,
next time you clead [DS1 up”. I4r. Labodla asked what was meant
by that and the grievor responded that DS had~dlarrhea and that
he was cleaning her up. ‘In evidence Mr. Labodla observed that he
thought that the grievor was, by this comment, setting up a
defence.
Ur. Labodla did not immediately report the matter to Ray
Flood as he was shocked, unsure of the procedure to ‘follow, and
concerned about how Us Flood, whom he regarded as noplnlonated”
would react. Instead he telephoned a frlend of his, Dr. Mark
Lowry, one of the attending psychlatr lsts at the Centre, and
who was hospitalized as a patient at Mount Sinai Hospital for advise.
He related the incident to Dr. Lowry who advised him that he should
report it to the head nurse, Ms. Papple. Mr. Lobodia
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next went to speak to IX and asked her what It was he saw in the
washroom. DS sald that she “had sex with a Chinese Doctor”
indicating that it was the grievor who was standlng. at the
nursing station and in view of them. (It mlght be noted here that
the grievor is Chlnese). Iri cross-examlnatlon Ur. Labodla denied
that he had questioned DS in a way which could have suggested a
particular response in the’ mind of a sexually obsesslve
patient.
There then followed a fire code which Hr. Labodla and Ms.
Peter answered. On thelr way back to the unlt .he told Peter,
whom he thought was the acting charge ~nurse, what he had seen In
the washroom. She testified that she couldn’t recall e~xactly
what he had sald but that the essence of It was that the grievor
and DS were having sex. She stated that Mr. Labodia sald that he
wasn’t sure If they had interco&s,e but that he had asked DS if
the grievor had pen&ated her and she had replled that he had.
He then conducted a ,search of the ward, the laundry bags and
DS’ room fbr soiled linen etc. and found nothlng which would
indicate that DS had had .a problem with dlarrhea.
He took his dinner break at approximately 6.30. When he
returned the grlevor was on his break and Mr. Labodia decided to
report the lncldent to Ms. Flood. Us. Flood was upset and asked
him why he didn’t go in to the washroom to stop what was going
on. He replled that he was shocked and didn’t know how to
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;
respond to the sltuatlon. Ms. Flood then conducted a search of
the ward and the
At approx
grievor wlth his
wash room and lntervlewed the patient.
:lmately 9.00 p.m. nr. Labodla confronted the
accusations ln the presence of Us. Flood and Ms.
Peter, He asked the grievor what It was he had seen In the wash
room and the-grievor replled that DS was dirty, that she had had
dlarrhea,that she had soiled herself and that he,was cleaning her
UP. The grievor denied any kind of sexual contact with the
patlent. He said nothing as to how he had cleaned her up or as
to where he had put the dlrty linen and when told that the ward
had been searched and nothlng found he offered no response other
than to deny shaving had sex and to repeat his claim that he had
been cleaning her up.
MS. Peter also testlfled as to her knowledge of these
elenti. She stated that she had been in the nursing statlon
around 5.30 p.m. when the grievor reported that DS had had a
bowel movement in the wajh room. She asked him if he wanted. her
to clean the patient up and he replied that he al?eady had. ir.
Labodla arrived at the statlon and the grievor said to him “Next
time It Is your turn, Carlos”. She couldn’t recall whether or
not carlos made any reply. The gr levor then made a comment to
the effect that he didn’t know why they serve the patients hot
food in the summer tlme as it gives them dlarrhea.
She then attended to the fire code wlth Mr. Labodia at which
time he told her of the events In the washroom. She stated that
Mr. Labodla appeared to be very upset, that he stated that he was
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afrald to report it for fear that he mlght not receive protection
from the grievor In the future in the event that he,Labodla, was
attacked by a patient.
Hs. Peter spoke to DS and asked her what had happened wlth a
male nurse In the washroom. DS appeared not to know who she was
referrlng to but when the grlevor was described to her she sald
that they had “had sex’. When asked to be more speclflc she sald
that “he stuck a finger up my ass and my vagina.” When asked if
he had done anythlng with his penis she said that he had
not.Further she reported that’she ‘ms not upset by the incident.
Ms. Peter retur~ned to the nursing statlon and was there when
Mr. Labodla reported the lncldent to Ms~. Flood. She was also
there for parts of’ the conversation around 9.00 p.m. between Mr.
Labodla and the grlevor . She’stated that the grlevor.malntalned
his position that he was cleaning the patient up. When told that
no solled llnens or disposable gloves haabeen found the grievor
stated that he had used paper towels and flushed them down the
toilet. Ms. Peter stated that the proper nurslng procedure for
cleaning up a patient who had solled herself In this way would
have been to use gloves and wash cloths and towels and that paper
towels should not be used unless the amourit of fetes was mall.
Us. Peter further stated that at this meeting the grievor
had said that the reason why he was standing so close to the
patient was that he was holding her arms up so she couldn’t touch
him with her hands which were covered with fetes.
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Later that night Ms. Peter spoke agaln with DS who told her
that she had ngt had a bowel movement or dlarrhea.
Thls compJetes the evidence from the Employer wlth respect
to the lncldent itself. The Unlon called as wltnesses, the
grievor, Us. Flood and Dr.Don Proud, a cllnlcal psychologist, who
testlfled as tb the rellablllty of any statements that may have
been made by ‘the patlent pertalnlng to thls matter. In view of
the fact that.fhe statements made by DS were hearsay in nature we
do not ‘intend to rely on them to support our conclusions.
Consequently, ;it 1s unnecessary. to set out the evidence of Dr.
.Proud In conn&tion with thelr reliability.
We turn Ahen to the evidence of,Jls. Flood. She stated that
about 5.15 p.f.‘th@ grievor told her that he “smelled shit ~a11
over the pla;e” and was going to look for It, that he returned
and stated that he had found DS in the wash room In’ the.nude with
shit all ovei her and on the floor. At ~approxlmately 5.30 p.m.
DS came to hef and asked.her for a bath. The grievor was present
and said “youl:see she must be feeling dirty if she wants a bath”.
Us. Flood tolh the grievor to turn the shower on and she went to
the llnen robm for clean pyjamas and a towel. At some point she
told MS. Pete,r, who was responslble for charting for DS, of the
lncldent. H’owever, nothlng appears on the chart for DS which
would indlcaie elther that she had a bowel movement or dlarrhea
or that she (ad experienced some form of sexual assault.
Some tinje later In the nursing statlon she heard the grievor
I
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say to Mr. Labodla “next tlme Its your turn to clean her up,
Carlos”, to which nr. Labodla made no reply.
At approximately 8:30 p.m. nr. Labodla reported to her what
he had seen, statlng that the grievor was elther having sex or
sexually abusing the patient. She asked hlm .lf he was sure of
what he was saylng and why he hadn’t told her earlier to which he
replied that he wanted some advice as to what to do. The two of
them went to the washroom and Mr. Labodla told her that he had
seen the grievor with his left hand on the patient’s left hip,
that he could not see the grievor’s right hand, that he saw no
thrusting of the hips and that the.grlevor did not turn around
when he opened the door..
Ms. Flood &a&d that she then went, in the company of Ms.
Peter and Mr. Labodla, to talk to the patient. She asked DS
whether “John Chan fucked you?” The.patlent replled that he had
not and when pressed as to what had occurred she said that he
“had his hands in a few places*. According to Ms. Flood, Ms
Peter then stated that this is what the patient had told her.
However, In her wrltten statement ‘It would appear that Ms. Flood
had not gone to see the patlent in the company of Ms. Peter,.for
she states that “1 returned to the nursing station to Carlos and
Elizabeth, Andy told them what the patient had said” and that
Carlos replied that she said the same to Elizabeth, a fact which
Ellzabeth Peter confirmed.
MS. Flood told Mr. Labodla that she found it impossible to
belleve what she was hearlng and that she wanted him to face the
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grlevor and tell hlm what he had told her. She reminded hlm of
the serfous implications in his accusations and lndlcated that
she hoped he would be prepared to handle everythlng that was
entailed by his claim. In her vlva vote evidence she stated that
Carlos had said that he would be prepared to drop the matter.
However, nothing of that appears In her written statement which
she gave to l4a. Kutty on July 30th. Nor was any reference to such
a statement by Hr. Labodla made by Us. Flood on the first
occasloti that she met with counsel for the Employer. It was not
until the second meeting with counsel, after which time she had
met with the Union representatives who were advising the grlevor,
that she made reference to a statement of Ur. Labodla that he
would be prepared ~t’o drop the matter.
When the grievor returned from hls break Ms. Flood walted
for Ur. Labodla to brlng the subject up but he appeared reluctant
to do so. Finally Ms. Flood intervened and told Mr. Labodla to
tell the grievor what he had told her. Mr. Labodla said “you
knew there was no other feinale ‘patient on the ward and this 1s
why you dld what you did” to which the grievor replied ‘Did what?
- so you don’t approve of how I was cleaning the patient”. Us.
Flood told Mr. Labodla to be more speclflc as she was.not sure
that the grlevor understood what he was talklng about, 1-e. that
Mr. Labodla was accusing the grlevor of having sex with DS.
At this point the grievor said “Is this your interpretation?
- you must be crazy, Ray, It Is a good thing I reported thls to
YOU”. In her written statement Ms. Flood said that the grievor had
‘i
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also sald: “Do you believe I would choose .the washroom to molest
a patient . ..these patients come In and they are dlrty...how do I
know what she 1s carrying . ..do you think I am crazy” to which Mr.
Labodla replied that he saw what he saw.
Ms. Flood tried to call Us. Papple, the Head NULSC, who was
on bereavement leave. She was unable to’reach her that night and
tried to call her twice the next day but wlthout .success. On
July 30 she was called to Ms. Kutty’s offl,ce and asked about that
matter. News of the incident had reached Us. Kutty from Ms.
Papple who in turn had been told of it by one Natalle Sllvlnskis,
a friend of Mr. Labodfa who apparently heard of lt from hlm. Ms.
Kutty tasked her why she had not reported the matter to the
Nursing Supervl&.~~ ‘She replied that she had a problem with the
validity of the claim made by Wr. Labodla, that Labodla had. not
* accused the grievor when he confronted him, that the grievor had
denied. it and the patient had denied having sex with the
grlevor.(In her evidence before the Board she stated that~ the
patient’s report of the grievor having had his hands “In a few
places” was, in her judgment, consistent with his provldlnq the
patient with perineal care)
Consequently, she made a judgment that the matter had been
resolved at ward level and that there was no need to report lt.
MS. Kutty told her that it was not for her to make those
decisions and she was “counselled” for her fallure to report the
matter.
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We turn at last to the evidence of the grievor. It may be
noted at the outset that hls evidence 1s~ substantially at
variance wlth that of all of the other witnesses, lncludlnq that
of Ms. Flood who was called to testlfy on his behalf.
He stated that he was dolng rounds on the afternoon of July
28 and he observed DS in her room wlth her pyjama tops on but
open and no bottoms. She had some fetes in her right hand and
there was some on the floor, a “finger mark" as If she had picked
it up from the floor. He denied that there was any smell of fetes
in the award and that he had told Us. Flood (as she testlfled)
that he was. going to look for the source of a smell. The fetes
which the grievor had was, in the grievor’s estimation “well
formed” and he denied ever describing it as “diarrhea”.
When he found DS in her room he’ looked out the door for some
female staff member’ to care for her but could see no one. The
grievor told DS to go to the washroom to clean herself off. He
stated that he had some’concern that she might intend to eat the
fetes (as’ he had had experience of this kind with other
psychiatric patients). Notwithstanding that concern he directed
her to qo to the washroom while he went to a washroom in the
nursing station to get some toilet paper to wipe the fetes of the
floor lest someone might come lnto the room and walk on It.
As for his judgment In choosing to attend to the fetes on
the floor before ensurlnq that the risk which he perceived that
the patient mlqht eat her fetes was mlnimized he stated that he
felt that by having establlshed “eye contact” wlth the patlent,
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and having told her to qo, to the washroom he had averted any rlsk
that she mlght nevertheless eat her fetes.
When he was in the nursing station getting the toilet paper
he did not see any other staff around, nor dld he call out for
any asslsstance from a female staff member. He knew that DS was
a sexually obsesslve patlent but stated that It did not occur to
him that he ought to find a femaJe staff membe: to attend to a
matter of personal hyglene for such a patient.
Having cleaned up the floor and used some air freshener
which he obtained from the nursing station he picked up the
pyjama bottoms and went to the wash room where he found the
patlent~ against the wall in a corner. He stated that another
patient, one AM~Va;S in the room using the sink. He hung ,the
bottoms on a cubicle door near the sink and went -into a cubicle.
to dispose of the fetes and toilet paper which he had In hls
hand. He washed his hands and used paper towels to dry them and
put them in the qarbaqe..He did not use disposable gloves as
there was no need for any physical contact with the patient.
When he came out of the cubicle DS approached him and he
reallzed that she had too much fetes In her hand to wash In the
sink so he told her to go Into the cubicle and wipe off her hands
first before washing them In the slnk. At this point, before DS
.had gone lnto the cubicle to dispose of the fetes, Mr. Labodla
opened the door. The grlevor stated that he was standing by the
dooz of the cubicle
facing DS, who was at the cubicle entrance
and one foot away from him. Mr. Labodla pushed the door open
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about S-10 Inches, looked at them, sald nothlng and left. The
grievor estimated that the tlme thls took was approxlmately 5
seconds. During this time the other patient, A& was St111 at
the slnk although, In the grievor’s estlmatlon, llr. Labodla would
not have been able to see her having only pushed the door open
sllghtly. The grlevor denied that the door was fully opened
since, if that were the case, it would, in hlq opinion, have, hlt
him considering where he was standing. The grlevor also denied
telling Ms. Peter and Ms. Flood that he was holdlng DS’ hands at
her side so she would not touch him. It was hls evidence that
there was no physical contact at all with him and he disputed
entirely the account given by Mr. Labodla of the events in the
washroom. Specifically he denled that there was any sexual
actlvlty between them.
After Hr. Labodla left the grievor washed his hands, DS went
lnto the cubicle, disposed of the fetes, and came out and washed
her hands. The grlevor .told her to put on her pyjama bottoms and
to button up her top anh left both DS and AU ln the washroom to
go to the nurslng station. When asked why he would leave her
alone considering his earlier fears about her he stated that he
had given her lnstructlons and she had followed them before. He
denied that he has In a hurry to leave the washroom after havlng
been observed by Mr. Labodla.
He went to the nursing station and told Ms. Flood what had
occurred although he apparently made no mentlon of the fact that
he had been observed there by Mr. Labodia. In hls testimony he
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disagreed with the estimation 02 Z".r. Labodla that he arrived back
at the nurslng station some 20-30 seconds after he had been
observed. He estimated that it was more of the order of two
minutes.
Later Mr. Labodla arrived at the nursing statlon and asked
what had happened to DS in the washroom. The grievor told him
that she had fetes on her hands and he was telllng her what to
do. There was no comment from Mr. Labodla. The grlevor denled
volunte&ing the lnformatlon that he was cleaning up DS and,
stating that “next time its your turn Carlos*. He stated that he
did not regard Mr. Labodlals question as to what had happened as
an accusation. Indeed he stated that no one made any accusations
that nlqht at al~l.
He stated thai for the rest ‘of the evening he attended to
his dutles and spent a routine evenlnq. He denied that there was
any conversation between himself, Flood and Labodla around 9.00
p.m. when he was confronted by Labodla (albelt reluctantly) with
the claim that he had been seen having sex with DS.
He worked the next day from 3-11:30’and was off on July 30
and 31. When he returned to work on August 1 he was asked to
report to l¶s. Kutty’s office where he was informed that he was
being suspended wlth~out pay for sexual molestation of a patient.
He was angry and questioned both Ms. Kutty and Ms. Papple as to
why no one had sought his slde of the story before a declslon was
taken. He was informed that no final decision was taken but that
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there was to be an lnvestlgatlon and that it would be better If
the lnvestigatlon was conducted whlle he was off the premises.
Subsequently he contacted hls Unlon and met on 3 occasions
with nanaqement concerning this matter. On no occasion did the
grievor offer any explanatfon of the events. On the advice of
his Union he chose to remain silent. In particular no mentlon
was made at any time of the presence of a third person in the
washroom, A& at the crucial tlme. That was flrst ralsed when
the grievor gave vlva vote evidence before this Board.
In due couze the lnvestlgatlon was completed and the
Employer came to the declslon to~dlscharge the grievor effective
July 31, 1986.
It 1s clear ftom the evidence set out above that there l?‘a
subs.tantial.and irreconcilable conflict between the evidence of
the grievor and that of the eyewitness, nr. Labodla, as to what
occurred in the washroom on July 28, 1986. If the evidence of Ur.
Labodla 1s accepted there can be little doubt that some form of
sexual activity took place although the precise nature of that
activity cannot be clearly determlned. Indeed the grievor
admitted in his evidence that the facts as testified to by Hr.
Labodla, the accuracy of which he denied, were consistent wlth a
conclusion that sexual actlvlty had taken place. On the other
hand if the evidence of the grlevor 1s accepted It must be found
that the basis for his discharge, that 13, sexual assault or
sexual abuse of a patient, has not been made out, While
questions may arise as to whether or not his very presence In the
19
washroom alone with a sexually obsessed female patient, albeit
for the reason of attending to a’matter of personal hygiene, are
grounds for some disclpllnary action, that issue is not before
us.
Therefore, the questlon before us comes down to a choice
between accepting the evidence of the grievor or that of Mr.
Labodla.. The choice which we make of necessity requlres us to
conclude that one or the other’ gave false testimony before the
Board. The extent of the discrepancy between the two accounts of
the incident 1s .such that lt cannot be explalned in terms of
different ways of petcelvlng or lnterpretlng the event.
Our task would have been much more dlfflcult If the grievor
had come before us ind testlfled that he was cleaning the patlent
Up.
Itmay be’ recalled that/according to the evidence of Mr.
Labodia, Ms. Peters and Ms. Flood, that was hls explanation
offered on the night in question. ,Such an account would have
explained the fact of his having had physical contact with the
patient as Mr. Labodla testified. We would then have been obllged
to determine whether or not Ur. Labodla may have been mlstaken In
what he saw. However, the grievor did not testify to that‘effect.
Rather he completely denied any such contact. Given that denial
we are not faced with the dlfflculty of characterizlng the
activity which Mr. Labodla testified to. AS stated above, If
that account 1s accepted, the gr levor engaged In a sexual act
with a patient; if it is not, and the grievor’s evidence is
accepted, he did not engage in such an act.
.-
20
We begln wlth an assessment of the evidence of tir. Labodla.
It may be noted at the outset that he had an unobstructed view of
the grlevor and the patlent and sufflclent tlme to clearly
observe and comprehend what he saw. The Board took a view of the
washroom and, although it 1s a still washroom, we are satisfied
that it 1s sufflclently large to have permltted Mr. Labodla to
swing the door open fully, as he says he did, and observe the
gr 1 evor . To this extent we do not accept the submlsslons of
counsel for the Unlon to the effect that'the dimensions of the
washroom were such that the door could not have been swung fully
open without hitting the grievor. That 1s certainly the case if
we place the grievor at the edge of the cubicle (which 1s where
he said he was '~ &en the door was opened). If the grievor. is
placed in front of the sink (where Mr. Labodia said he wasI it is
also probably the case that the door could have been swung fully
open. Hr. Labodla stated that, when he opened the door, the
grlevor was 3 feet away from hlm and not up to the sink. The
distance from the doorway to the sink Is 5 feet, sufflcfent in
our judgment to permit Mr. Labodla to swing the door open fully
without hitting the grievor.
J4r. Labodla gave his evidence In a straightforward manner
and was not slgnlficantly shaken in hls evidence on cross
examination. Moreover, in so far as hls account was quite
expllclt In matters. of detail It was vulnerable to attack on
cross examlnatlon. Yet, as indicated, hls account held together
notwlthstandlng a vlgorous and lengthy cross examlnatlon.
21
counsel for the union argued that the rellablllty of Hr.
Labodla’s evidence should be called lnto questlon In view of his
own conduct lmmedltely following he alleged lncldent. Thus, it
was suggested that hls failure to Intervene and prevent an attack
if one was occurring, his failure to say anything at all to the
grievor and DS, his fallure to report the matter to Ms.Flood
until approximately 3 hours after the incident occurred and,
finally, hls reluctance to directly confront and accuse the
grievor when they met at 9.00 p.m. all point to the conclusion
either that nothing of any significance was wltnessed in the
washroom and that Mr. Labodia got “carried away” wfth his own
imagination.
While. we regard these factors as troublesome we are not
persuaded that they point to the conclusion suggested. It was
his evidence that he was shocked and upset by what he saw and
that hls first instinct was to close the door Andy leave to
collect- his thoughts. -Although hit must be stated that the
activity which Mr. Labodia testified to was reprehensible,
nothing of wha’t he saw suggested that DS was in any danger and In
need of assistance. Indeed, the medlcal‘records introduced as to
her behaviour during the brief time that she was ln the unit,(to
which reference has been made above) would Indicate that If
anything DS was a willing participant if not the instigator of
the incident. Perhaps wlth the beneflt of hlndslght it should be
said that he ought to have intervened. However, in all of the
circumstances, his fallure to lntervene at the tlme, does not
22
lead us to conclude that he saw nothlng of a sexual nature
occurring.
Slmllarly, his fallure to report the matter when he returned
to the nursing statlon is explicable, although perhaps not
excusable. By his evidence, as soon as he returned, he was met
with what he regarded as an attempt by the grievor to establlsh a
defence, that is, the defence of cleaning the patlent. He could
have engaged the grievor in debate at that point but determined
not to’. A part of hls reason for that had to do with his
reluctance to raise the matter wlth Ms Flood without the beneflt
of further advice. He regarded her as someone who was
@opinionated” and “difficult to approach*. Having had the
opportunity to ‘ob~s’erve ns. Flood as a witness, we are able to
understand and accept nr. Labodla’s explanation for his fallure
to raise the matter at that time. She 1s clearly a person with
strongly held views and a dkmlnant personallty, one which
contrasts markedly with what we regard as the more quiet,
reflective bearlng of -Mr. Labodla.
;n any event it should be noted that Mr. Labodla did not slt
idly by and do nothing following the incident. He first
telephoned Dr. Lowry to report on the matter and seek his advice.
Why, one wonders, would he do thls If nothlng of significance had
happened? He had not yet reported the matter to anyone on the
unlt and was thus not In a posltlon of havlng to call In ald the
assistance of someone else to support him in his alleqatlons.
Hls call to Dr. Lowry was clearly a call for advice and we doubt
23
that he would have made It if he had not seen something which he
regarded as very sensltlve and requlred some action.
Similarly, he related the matter to Ms. Peter, whom he said
he regarded to be the nurse in charge. Whlle he was clearly
mlstaken In that vlew, hls conduct In reporting it to her
indicates a concern on his part that a serious matter needed to
be reported.
Further, there 1s his attempt to ascertain what happened.by
talking to the patient. That does not.lndicate to us that he was
not sure whether or not he had seen any sexual actlvlty. Rather
what It Indicates is that he was not sure precisely the extent of
the activity he’had seen. .In particular he was not sure whether
or not an act of sexual intercourse had taken place and.he wanted
to .clarify that. Agaln, one must ask why.Ur. Labodia would go to
the patient and ask her these questions if nothlng at all
improper had occurred In the washroom.
Finally in this regard. mention may be made of his personal
search of the ward to determine whether or not there was any
dirty linen or dirty pyjamas which would support the grievor’s
claim, as advanced back at the nursing statlon, that he was
cleaning the patient up. If had no doubt that the grievor was
cleaning the patient up he would not, in our judgment’, have
conducted this search. His having conducted the search before
reporting the matter to Ms. Flood polnts to hls good faith. He
had heard what he regarded as the grievor’s defence. What he
observed was somethlng which he regarded as qulte different but
24
at the same time somethlng which, In a bizarre way, mlght
conceivably be construed as cleaning the patlent. Consequently,
before golng public with his accusation, he attempted to verlfy
the accuracy of the grievor’s account.
All of this conduct, the consultation with Dr. Lowry and Us.
Peter, the dlscusslon with the patlent, and the search of the
ward, demonstrates to our satlsfactlon that the Mr. Labodla had
observed a ser lous Incident which had to be reported. However,
because of its seriousness not only to the grievor but also to
him in the event that hls accusation was without foundatlon, he
felt it necessary to seek advice and be sure of the validity of
his claim. Had he observed an incident of the kind described by
the grlevor none of this conduct would make any sense.
Can It be said that Mr.. Labodla dellberately gave false
testimony .before ‘the Board? In connection with this matter we
would .flrst observe that his conduct wou~ld be equally bizarre on
thls hypothesis. Why would he seek advice from Dr. Lowry or Ms.
Peter, or talk to the patient If he was determined to use this
event as an opportunlty to cause harm to the grlevor? One would
expect he would go directly to Ms. Flood and report the matter.
In any event the evidence before us simply does not
establlsh that Hr. Labodla had any motive to make such a serious
claim as that advanced here. The only admissible evidence which
would suggest that there was some bad feeling between the grievor
and Ur. Labodla concerned an incident involving a dlsaqreement
over whose responslblllty It was to clean up an incontinent
25
pat lent at which time Hr. Labodla 1s alleged to have made a
threat that he would @lget” the grlevor. In cross examlnatlon Mr.
Labodia, somewhat angr lly, characterlzed this suggestion as
“absolutely false”. The grlevor, In hls evidence In chief, did
not testlfy as to thls lncldent. Thus, on the evidence, we must
conclude that it dld not occur.
Ther.e was 9 ome other evidence led through Ms.Flood wlth
respect to an lncldent lnvolvlng an altercation between the two
men following a flood in Ms. Kutty’s office which Mr. Labodla
considered the grievor to have caused and following which he was
alleged to have said that he was “going to get” the grievor.
However; as this incident. was not put to Mr. Labodla In cross
examinatlon it ” 1s’ inadmlsslble and to be dlsregarded:In any
event, .Hs. Flood, who was called as a wltness on behalf of the
grievor, testlfled that the two of.them got on “fairly well”.
There 1s thus no .evldence before the Board which would
justify a finaing that Mr. Labodia had any motive for fabricating
the claim ‘which led to the discharge of the grievor. In these
circumstances we are at a loss to understand why Mr Labodla would
so act. He certainly is not the klnd of person who would set out
gratultously and without motlve to destroy the career of a fellow
worker.
We are therefore left with reliable eyewitness evidence
which establishes that the grlevor engaged in a sexual act with a
patient. We must now assess the evidence introduced on behalf of
26
the grlevor with a vlew to determlnlng Its rellablllty~and
ultimately the disposition of this case.
At the outset we would note what is perhaps obvlous, that
1s. that the grievor, unlike Ur. Labodla, has very good reasons
for give false evidence before the Board. He la faced not only
with loss of hls employment but also stands to lose hls licence
to practice his professlon if the College of Nurses, before whom
we understand parallel proceedings are belng taken, falls to
accept his account of the incident.
There are a number of dlfflcultlas associated with accepting
the evidence introduced on behalf of the grlevor. First, his own
account of the events which led hlm to be discovered in the
female washroom’with the patient 1s somewhat lmprobable. He
stated that he discovered the patient In her own room with fetes
in her hand and that he was concerned that she might eat it.
Yet, rather than take lmmedlate steps to retrleve the fetes ln
order to prevent that from occurring, he sent her to the washroom
with lnstructlons to dispose of it. One would have expected
that, in view of his fears, he would not have left her out of hls
sight and would elther have accompanied her dlrectly,to the
washroom, or preferably, walt untll he could flnd a female staff
to attend to the matter.
On his evidence his attempts to locate a female staff person
appear to have been rather limited. He appears to have simply
looked In the dlrectlon of the nurslng statlon and made no
attempt to call out for assistance. Other evidence would
27
lndlcate that at around thls tlme there were other staff members
present. Moreover, the unit is relatlvely small and a call for
help would have been easlly heard and, one assumes, acted upon.
Having sent the patient to the washroom his next step was
not to follow her there to supervise her cleaning herself up.
Rather, he chose to clean up what he described as a @finger, mark”
of fetes on the floor. We are at a loss to understand why, in
view of his expressed fears about the patlent eating her own
fetes, he would have elected to give the cleaning of the floor a
higher priority than attendlng to the patient.
Finally, after Mr.. Labodia had witnessed the two of them In
the washroom, the grievor , rather than wait to see whether or not
the patient, who tias nude from the waist down at the tlme of Mr.
Labodla’s entrance, had dressed herself, proceeded .qulte quickly
to the nursing station. When it is considered that the patient
Was known to be sexually obsessl\re and one who frequently had had
to be told to put her ‘clothes back on, one would have expected
that the grievor would have seen to it that she was dressed
before leaving her. His quick departure from the washroom and
return to the nursing station is’ not easily explalned if his
presence in the washroom with the patient was as innocent as his
evidence would suggest.
His conduct back at the nursing station lends some further
support to thls view. It may be recalled that, on the evidence
of all other witnesses except for the grievor, he stated to Hr.
Labodia that "next tlme it's your turn to clean [the patlentl
28
,I3 own up.” That is somewhat difficult to reconcile with h
account of the 1
washroom to ensure
account he was not
ncldent whereln he was slmply present in the
that the patient cleaned herself up. By his
personally involved In cleaning her up at all.
Yet it 1s qulte consistent with the event as observed by Mr.
Labodia. That could .posslbly, although not without some
difficulty, be Interpreted as N.cleanlng the patltnt up’ and the
grievor’s statement could be regarded as an explanation of why he
Was found in what might otherwise appear to be a compromising
situation. However, given the grltvor’s account of what
occurred, which Is not compromising, save for the f~act of his
presence at all in the washroom, the statement made to Mr.
Labodia upon hls (Labodia’s) return to the nursing station makes
less sense.
There are a number of other areas where the grievor’s
evidence 1s lnconslstent wlth that of other witnesses. Chief
among these is his denial of any of the evidence which would
suggest that he had inltlally taken the, position that he was
observed in the act of cleaning the patFent up. As noted above
he denied the *next time its your turn” statement. He also denied
telling Ms. peter that he was holdlng.the patient’s hands at her
side as they were covered with fetes. nost signlflcantly, he
denied entlrely the conversation, to which all witnesses attested
( lncludlng Ms. Flood), which occurred at around 9.00 p.m. when he
agaln explalned his conduct In terms of cleaning the patient up.
29
We are compelled to find on the evidence that he did
lnltlally take the position that he was cleaning the patient up.
Why then would he deny that at the hearing? It is our conclusion
that he reallzed, by the time that he gave his ttstlmony, that
there was absolutely no evidence that the patlent had an
naccldentn which required any cleaning up. There was no evidence
of any soiled llnen etc. Nor was there any evidence in the
charts that she had suffered such an accident. That required hlm
to take the position that no cleaning up was required. However,
to take that posltlon would fly In the face of the original
position which he took on the night in question. Hence, he
denied any convtrsatlons which would suggest that such a position
was taken.
We turn now to what is perhaps one of the more puzzling
aspects of this cast. That.is the matter of the presence of a
third person in the washroom at the time of the incident. The
Union sought to make much of this in argument suggesting that it
would be foolish in the extreme for the grievor to engage in the
act of which he is accused If there were someone else there who
would be an eyewitness. In this regard the Union also submitted
that Ur. Labodia did not push the door open fully such that he
would have seen the other patient. We have dealt with that above
and have accepted the possibility that the door could have been
pushed fully open such that it would be possible to see another
patient If lndeed another patlent was there.
30
Mr. Labodla dld not state that there was anyone else In
the washroom. Nor was he asked if anyone else was there either by
counsel for the Employer In chief or by counsel for the grlevor
In cross examlnatlon. The matter was not raised by the Employer
in chief because, untll the grievor flrst mentioned the presence
of another patlent In hls evidence In chief, the Employer had no
knowledge that such was the case. It may be recalled In thls
connection that throughout the meetlngs between the grievor, his
Union and the Employer, prlor to the hearlng, the grievor, on the
advice of his Union, remained sllent. Consequently, the flrst
that the Employer knew of the other patlent, was when the matter
was referred to by the grievor.
Nor dld the ‘cnlon cross examine Mr.
Labodia on the possible
presence of another patient in the washroom. Thus no opportunity
was given to Ur. Labodia to confirm or deny her presence there.
Thus, all we have by way of viva vote ~evldence 1s the claim by
the grievor that she was present. Moreover, the Union sought to
prevent the Employer from submitting, by way of reply, tvldence
which would indicate that, on the nlght in question, the patient
was absent from the Hospital on a dinner pass. The Board ruled
that, in view of the fact that the lssue had flrst been raised by
the Unlon through the grievor and In view of the fact that .the
grievor, by his silence had not indicated that a third person had
been present throughout, the Employer was justlfled In putting In
reply evidence on thls polnt. That evidence lndlcates, although
31
lzatlon not conclusively, that the patient, AM, was glven authour
to be out of the unit for dlnner on that night.
The reliability of that evidence 1s supported by a comment
uttered by Hr. Labodla at the 9.00 p.m. meeting (which the
qrlevor denies) to the effect that the qrlevor dld what he dld
because he “knew that DS was the only female patient on the ward
that night” and that therefore he would not be discovered by
anyone else in the female washroom.
The Union chose not to call the patient, AM, as a witness.
Instead It relied on the evidence of the qrlevor alone, and
attempted to prevent the Employer from entering reply evidence.
We flnd the fallure of the Unlon to call the All as a witness to
be surprising. “Obilously, the fact of her presence ln the
washroom would be of great assistance to the grievor if It were
‘true. We are compelled to the conclusion that the failure to
call An as a witness justifies an inference that her evidence
would not have been helpful to the grievor’s case. NO
information was tendered to the Board at the hearing as to why
the Unlon did not call her as a witness.
However, subsequent to the ‘conclusion of the hearing,
counsel for the Union, informed the Board and counsel for the
Employer that the Unlon had lntervlewed the patlent and come to
the conclusion that her memory of the events was such that her
evidence would not be conclusive. Wlth respect to counsel for
the Union that was not really a deter.mfnation which he was
entltled to make. That Is a matter for the Board to determlne.
c
The Unlon cannot, In our judgment, raise the matter of a second
patlent In the washroom, through the evidence of the qrlevor, and
then prevent ,the Board or the Employer from testlng the
rellablllty of that evidence by making an independent judgment as
to the competerice of the patlent to testify.
Of course we do not intend to dictate how the Union should
have put In i~ts case. However, having raised the matter as it
did through the qrlevor, the Union takes the risk that an adverse
inference will be drawn if it ‘falls to call corroborating
evldence‘ln support of that of the grievor.
It 1s our conclusion on the evidence that An was not In the
washroom at the tlme of the lncldent. -That finding puts the
grievor’s case ~‘ln~serlous jeopardy for It compels us to conclude
that he gave false testimony on this polnt. That belnq the case
the rest of his evidence must be vlewed with considerable
susdlclon.
The standard’of prodf in a case of this kind In set out in
Re EUnstp1 n and the Coll.eae of Phvsiclans
w.(lS O.R. (2d9 441 where the Ontarlo Dlvlslonal Court
stated that the proof must be “clear and convincing based upon
cogent evidence which Is accepted by the tribunal” and that the
%erlousness of the chaiqe Is to be considered by the trlbunal In
lts approach to the care it must take in decldlnq a case which
might in fact amount to a sentence of professional death” The
qrlevor has been charged with a serious offence and a finding
33
that he conunltted the offence does expose hlm to the rlsk of
“professional death”.
Nevertheless we are satisfied on the evidence that the
Employer has met the standard requlred. The evidence of nr.
Labodla which we accept over that of the grievor establlshes
without doubt that theze occurred a sexual act between the
grievor and the patlent. We emphaslze that in reaching that
conclusion we do not rely on any of the evidence with respect to
statements made by the pat’lent. We find no need to rely on that
evidence since we are satisfied as the the, rellablllty of the
eyewitness evidence of Mr. Labodla. .
We have been asked by the parties to make cer,taln flnd‘inqs
as to the precise nature of the sexual act which occurred.
There
is no evidence that an act of sexual intercourse took pldce. Hr.
Labodla stated that he could not see whether or not the grievor’s
fly was open or whether his penls ias exposed. Whlle the
Vhrustlnq” motion described by Mr. Labodla is consistent with
sexual intercourse, it is Insufficient on its own to establlsh
that fact. However, the evidence does persuade us that the
qrlavor was involved in touching the patlent in her pubic or
perineal areas with hls hands. The patient’s pyjama bottoms were
on the floor around her ankles and he was behind her with his
right hand between his body and hers. In view of the absence of
any credible explanation as to why he may have been engaglnq in
this activity we concludes that he was touching her sexually with
his hand.
I
34
It should be observed, however, that nothlnq in the evtdence
suggests that the grievor’s conduct was planned or deliberate.
There Is., however, substantial evidence to lndlcate that the
patient was sexually obsessive and frequently involved in making
sexual advances toward other male and female patients and staff
in the unit. Although there 1s no evidence on the point we thlnk
it hlqhly llkely that she made certain advances to the qrlevor
and that he succumbed to those advances.
As noted at the outset this award is lntended only to record
our review of the evidence and our flndlngs of fact. Thus, we
make no disposition of the grievances before us at this time.
The Board remains selsed of jurlsdlctlon In both of the
grievances in the’event that the partles wish to bring the matter
back to us for further dlsposltlon.
Dated at LONDON, Ontarlq thls 26 day of November I 1987
‘G. J. Brandt, vice Chairman