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HomeMy WebLinkAbout1986-0918.Chan.88-09-22TElEPHONEl 416/599- 0689 918/86 911186 Between: OPSEU (John Ghan) Before: For the Grievor: .I. Ford Grievance Officer Ontario Public Service Employees Union IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD and Thz Crown in Right of Ontario (Ministri of Health) G. J. Brandt J. McManus E. Orsini Vice Chairman Member Member For the Employer: L. McIntosh Law Officer Crrrwn Law Office Civil Ministry of the Attorney General Hearings: January 15, June 29, July 09, July 16, July 22, 1987 Grievor Employer : : 2 DECKSION INTRODUCTION This panel of the Board, in an earlier, hearing which occupied'5 days of evidence and argument, rendered an award which, by consent of the parties, was restricted to findings of fact. It reached no conclusions concerning the question as to what, If' any, dlsclpllne should be imposed as a result of Its findings of fact. On consent of the parties the Board retained jurisdiction to award consequential relief in the event that the parties could not resolve the matter. As. the parties have been unable to resolve the matter the Board reconvened to issue its award. FACTS A brief review of the facts is appropriate. Following an incident on July 20, 1986, in which it was alleged that the grievor had sexually abused a female patient at the Queen Street Mental Health Centre where, the grievor W.5.S employed as a Psychiatric Nursing Assistant, the grievor was suspended pending an lnvestlgatlon and subsequently discharged. He filed grievances protesting both the suspension and the discharge. The f lndings of fact made by the Board are sununarized at pages 33 and 34 of its award. They are that, whlle there was no evidence that an act of sexual intercourse took place or that the grievor's penis was exposed, the Board was satisfied that the grievor touched the patient in her pubic or perineal areas with his hand. 'The Board further found that the evidence did not I i 3 .suggest that the grievor’s conduct was planned or de1 iberate Rather, the Board concluded that, insofar as there was ample evidence to indicate that the patient was sexually obsessive and had frequently made advances of a sexual nature to other male and female patients and to other staff on the ward, it was “highly likely” that the patient made advances to the grievor to which he succumbed. At the July 21st hearing evidence was put in respecting the grievor’s employment history. He was hired on November 20, 1972 and thus had approximately 14 years of service with the Ministry at the time of his discharge. His first two performance appraisal S were “satisfactory”. HOWeVeK, his performance appraisal on January 30, 1974 was unsatisfactory. On May 24, 19’74 he received a letter of reprimand reciting. that his failure to perform or his delay in performlng certain duties was considered to be insubordination. On October 25, 1974 his performance appraisal stated “Difficulty in working relationships, fluctuating mood swings and work patterns, kind to patients. Does not readily accept criticism, is usually defensive.” Following this performance appraisal his merit increase was withheld on November 4. 1974. On Hay 20, I.976 his performance appraisal was “average performance” and on May 21, 1976 his merit increase was withheld for 6 months - “GeneKal impression not satisfactory.” On -May 21, 1980 he received a letter of counsel following an incident in which he allegedly was physically aggressive with a difficult male patient. The Ministry explanation that he had KeaCted to being k i grabbing the patient firmly. HOWeVeK, 4 accepted the grievor's eked in the groin by he was told that his actions were more aggressive than they should be and that, having regard t0 his reputation fOK being overly SggKeSSiVe With patients, he was to be monitored more closely. The grievor subsequently received two satisfactory performance appraisals on July 14, 1982 and February 29, 1984. On July 2, 1985 he was given a letter of reprimand respecting unprofessional conduct, vii, use of profane language against another employee. Apart from the evidence respecting his employment history, other evidence put before the Board was that the grievor is single, with no immediate family, that he is currently living with friends as a result of the fact that he has lost his job and has been unable to find other employment. Finally, it should~be noted that the grievor is, currently facing disciplinary proceedings before the College of Nurses in respect of the incident which led to his discharge. Those PKOCeedingS have not yet concluded. ARGUMENT Counsel for the Employer submitted that, while generally the Employer bears the onus of establishing both misconduct and that the misconduct was of sufficient gravity to constitute just cause for the penalty imposed, some kinds of misconduct are of such gravity that discharge is justified unless the Union discharges z . 5 an onus of establishing that there are mltigatlng factors which warrant some other penalty that discharge. In support of that PKOpOSitiOn reference was made to Be C-an Broadcasting Corooratlon and Q&E 23 LAC (2d) 32 (Beatty). There the grievor was suspended for three days for engaging in an unlawful Strike. The Board stated that, COnSideKing that the conduct in question was nseriousw and q*struck at the very roots of the collective bargaining process”, the discipline imposed was not excessive. The Board went on to state that the "onus is then on the grievor to demonstrate why the penalty should not be interfered with.” Counsel submitted that, if KegaKd is had to the various mitigating ‘factors set out in the Steel Eau&mg.& case (14 LAC 356 (Reville 1, it cannot be said ~that any of the mitigating factors apply to the circumstances of this case. As for the previous record, while there are no acts of sexual misconduct on the record, there was one incident (on May 21, 1980) where the ‘grievor was counselled with respect to his aggressive handling of patients. It was fUKtheK submitted that the IeCOKd, including the performance appraisals, could generally be characterised as unsatisfactory. Counsel conceded that the act of sexual misconduct was an isolated incident but contended that the Uay, 1980 incident had some bearing on the issue. As fOK the factors of provocation and acting on the spur of the moment it was submitted that, given the fact that the grievor denied the act entirely, it did not lie in hiss mouth ate this 1 i 6 stage to claim that he was provoked into his actions or that he had acted on the spur of the moment. It was argued that the factor of special economic hardship cited in the Steel EqJJJDment case had no application. It is obvious that any discharge will result in economic hardship. The notion of Mspeclal" economic hardship connotes consequences which go beyond those which normally result from a discharge. It was submitted that there was no evidence here to indicate that the grievor was suffering any greater consequences than those which would normally flow from discharge. Of course the reasons for his discharge may make it more difficult for him to obtain other employment. However, that cannot be used as a basis for claiming "special" economic hardship. Finally it wa& argued that no claim could be made that the conduct of the grievor did not amount to a serious offence in terms of the policy and the obligations’of the Employer. The Union does not dispute that, having regard to the findings of fact made by the Board, the grievor should not suffer some substantial penalty. It is argued, however, that the Board should characterise his conduct as a "momentary act of weakness in which he succumbed to his baser desires" and should permit him to return to employment albeit in a posltion'which does not place him in contact with patients or residents. It was' submitted that the grievor has already suffered a loss of reputation which will precede him wherever he goes and that reinstatement would at least permi t him to earn a living and. come out of this episode 7 : i with some dignity and self esteem. In short, it was ‘argued that one moment of weakness should not result in a life sentence of continuing punishment. Before addressing the relevant leglslatl Collective Bargaining this matter it is appropriate to review ve provisions. The Crown Employees Act provides that where the Grievance Settlement Board determines that a dismissal is *excesslveW , it may substitute such other penalty as it considers just and reasonable in all the clrcumstances.(S. 19(3)). However, S. .19(4) provides that where, in exercising that authority, the Grievance Settlement Board finds that an employee who works in a “facility” has sexually molested a resident in the faciIlty, “the Grievance Settlement Board shall not provide for the employment of the employee in a position that involves direct responslblllty 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.” The Union concedes that section 19(4) prevents the Board from ordering re-instatement of the grievor back to his original employment. However, it invites the Board to exercise its discretion conferred by the concluding language of Section 19(4) to reinstate the grievor in “another substantially equivalent posltlonn. The Employer argues that there is a threshold established by Section 19(3) which must be crossed before the Board can exercise its authourity under Section 19(4)., That is that the Board must i < i, i 8 find that the penalty of dismissal is “excessive”. In this respect a contrast was drawn between this position and the parallel provision in the Labour Relations Act (S. 44(g)) where no such threshold is established. It was ~argued that, having regard to the seriousness of the conduct of the gr levor, the penalty of dismissal was not “excessive”. Alternatively, the Employer argued that, in any event, the circumstances of the case dictate that the Board should not exercise its discretion to re-instate the grievor into “substantially equivalent employment”. It is clear from the case law that health care professionals are, in their contact with the patients for whom they care, subject tc a very high standard of conduct. In Re P v e of B it’ ..ro ritish Columbia Government Emolovees’ Union (1980) 26 LAC (2d) 71, the Public Service Adjudication Board dealt with this subject. In that case the grievor had been found to have been involved in a “serious incident of patient abuse” !nd was discharged. The reported award omits reference to what precisely the conduct in question’ was. ,The grievor had 20 years of service; there was no evidence of any previous incident of a similar character; the incident was found to be out of character. The Board stated that, while the incident was a serious one, it was not likely one that would sustain dismissal, particularly in view of the history of employment, as an isolated incident if it were to have occurred in some other category of employment. However, the Board went on .) i 9 to sustain the discharge on the basis that “patient abuse is an offence, that justifies immediate dismissal for persons engaged that kind of I ,ln the occupation of health care.” In support of standard the Board characterised employment in the health care profession as the “equivalent of a position of public trust where a single lapse is deserving of discharge.” A similar approach is found in a number of other cases. (See Be Be Yeville General HOSDital and Service Emolovees nal Union. Local 183 (18 LAC (3d) 161 (England); k p vi c of *-fees- (29 LAC (3d) 109 (McFetridge)) and cases cited therein) These cases point clearly to the conclusion that conduct of the kind engaged in by the grievor justify his dismissal. Indeed, if anything, the facts of the instant case point even more strongly to that conclusion. In the cases referred to none of the conduct was a serious as that engaged~ in by the grievor. None involved sexual abuse. Rather they were concerned generally with aggressive handling of patients, not unlike that in which the grievor himself was involved in the May 1960 incident. More importantly, the conduct in those cases was frequently “provoked” by the frustrations which derived from having to deal with patients who were “‘difficult”. In that regard boards have said that the “nature of the work demands a capacity for patience and compassion...” (i.Ee Province of Blberta supra). I Thus, the kinds of factors which might be seen 4 10 _ as mitigating in a different employment context, are not regarded as relevant in the health care field.. In the instant case we have none of that. The grievor was not responding to the trying conduct of a difficult patient. What he did was took advantage of her sexually obsessive nature and engaged in an act of sexual abuse. These facts cry out even more strongly than in the cases cited for the ultimate disciplinary sanction of discharge. c. We recognize that, as a result of this single incident, the grievor’s future prospects are substantially impaired. We must not, however, be moved by any sympathy that we might have in that regard. Patients and residents in health care facilities in the Province of Ontario are entitled to demand that those who are employed therein discharge the trust which has been reposed in them in a responsible and professional manner. The conduct of the grievor has violated that trust in a significant measure. Having regard to all of these .considerations we are not persuaded that we should exercise any discretion in his favour. Consequently, the grievances protesting both. his suspension and his discharge are dismissed. 3 .,, s 1 i 13 Dated at LONDON, Ontario this 22nd day of ~~~~~~~~~ , 1988 G. J. Brandt, Vice Chalre-son J. McManus, Member E.J. Orsui, Member