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HomeMy WebLinkAbout1986-1759 Serrao 87-09-14 DecisionIN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Anthony Serrao) Grievor -and - THE CRWON IN RIGHT OF ONTARIO (Ministry of Health) Emp1oyer BEFORE: M.G. Picher I. Freedman I. Cowan Vice-Chairperson Member Member FOR THE GRIEVOR: R. Wells Counse 1 Gowling and Henderson Barristers and Solicitors FOR THE EMPLOYER: M. Quick Counsel Legal Services Branch Minstry of Health HEARING: May 22nd, 1987 INTERIM DBCISIU This is an interim award in respect of a.preliminary issue. The Grievor, Mr. Anthony Serrao, was discharged effective December 24, 1986 from his position as a registered nursing assistant employed by the Hamilton Psychiatric Hospital. The grounds of discharge include threatening a patient, use of unauthorized seclusion, verbal abuse and endangering a patient's welfare. The. Union maintains that the Crown is precluded from relying on the Crievorts record and effectively treating the facts which gave rise to the discharge as a culminating incident. It scounsel submits that the position taken by the employer in its initial decision of December 24, 1986, as well as its position at the second step of the procedure expressly bar any reliance on the 'Grievorts record. On that basis, the Union seeks a preliminary ruling preventing the admission of the' Crievor's record in support of the employer's decision in these proceedings. Counsel for the Crown submits that in fact the Grievor's record was relied upon from the outset as part of the reason for Mr. Serrao's dismissal and maintains that it is entitled to treat the event that precipitated the termination as a culminating incident, with the ability to refer to Mr. Serrao's prior disciplinary record. The incident that precipitated Mr. Serrao's discipline occurred in December of 1986. He was immediately suspended pending an investigation. The eventual discharge of the Grievor was pursuant to section 22(3) of the Public Senrice Act R.S.O. c.418 which provides: 22.3 A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. The investigation conducted in the instant case was in compliance with section 18 of . -2- regulation 881 of the Revised Regulations of Ontario, 1980. It provides, in part, as follows: 18. (1) Where the Deputy Minister suspends a public servant from employment pending an investigation, the period of suspension shall not exceed twenty working days. (4) Where, in the opinion of a deputy minister, there may exist cause for removal of a public servant from employment or for - dismissal of a public servant from employment, the deputy minister shall appoint a time for and hold a hearing. (8) Where a deputy minister delegates to a public servant in his ministry his powers and duties in respect of a hearing mentioned in this section, the delegate shall hold the hearing and shall report thereon in writing to the deputy minister. (9) The report of the delegate to the deputy minister shall include the record of the hearing and the recommendation of the delegate together with his reasons therefor. , The empioyer's hearing in this case was held on Monday, December 22, 1986 and chaired by Mr. 0.Wayne Fyffe, Administrator of the Hospital. Mr. Fyffe's account of the hearing and the reasons for his ultimate decision as the delegate of the deputy minister are contained in the following letter dated December 24, 1986, sent to the Grievor: Dear Mr. Serrao: I am writing to record my observations, conclusions and decision with respect to the predisciplinary hearing held Monday, December 22, 1986, in the Board Room at Hamilton Psychiatric Hospital. You were present at this hearing and chose to be represented by Mr. Jim Tate from the Regional Office of OPSEU in Cuelph, and two Stewards from Local 203, namely, Mr. Warrick and Mr. Fernandez. Management's case was presented by Ms. R. Flandres, Director of Nursing. Also present was your Ward Supervisor, Mrs. Laird, and the Regional Personnel Administrator, Mr. Ferguson. In presenting management's case, Ms. Flandres called three witnesses to testify with respect to the allegations rnade against you. There were no witnesses called on your behalf. The allegations made against you can be summarized as follows: 1. Threatening a patient. 2. Use of unauthorized seclusion. 3. Unilateral performance of unauthorized duties. 4. Verbal and physical abuse of a patient. 5. Endangering a patient's welfare. Management's recommendation was that based on the evidence and the seriousness of the allegations, you should be dismissed from employment at Hamilton Psychiatric Hospital. Further, it was stated that should I disagree that the allegations were proven beyond a reasonable doubt, there was still reason for dismissal based on the doctrine of culminating incident, 'where. you have been previously disciplined for inappropriate conduct in respect to patient care. Your representative's submission to me was that the reports presented by management were contradictory; that you regretted any problems with the patient and had perhaps been "overzealous" in trying to help a patient; that you were acting in a manner which was acceptable to the Hospital in respect to the action of other staff members with other patients; that you did not abuse the patient; that you do not deny placing the patient in seclusion, but feel that it was not an unusual practice at Hamilton Psychiatric Hospital; and finally, that dismissal was too harsh a penalty; however, another penalty might be accepted as a disciplinary measure. I have concluded that the witnesses' testimony is believable and consistent, and that all of the allegations have been proved to my satisfaction, with the exception of physical abuse. Since no evidence was presented that the patient actually suffered any physical injury, it is difficult to determine whether physical abuse in fact occurred. It is my opinion, however, that emotional and/or psychological harm did come to this patient. Therefore, by copy of this letter, I am asking the Director of Nursing to ensure that this patient is informed of her right to legal counsel for the purpose of considering whether or not she wishes to lay a charge of common assault against you. While I may accept your explanation that you did not intend to harm this patient, there is no doubt in my mind that harm did come to this patient as a result of your actions, And by virtue of your education, training, professional standards and length of employment at Hamilton Psychiatric Hospital, you ought to have known better than to have conducted yourself in this way with this particular patient. Therefore, in accordance with authority delegated to me by the Deputy Minister under section 220) of the Public Service Act, I am hereby dismissing you from employment for cause, effective December 31, 1986. Yours truly, "Q. Wayne Fyffe" Administrator The decision of Mr. Fyffe was appealed through the grievance procedure. A stage two grievance meeting was held on February 3, 1987 with Mr. R. Oss, Director of the Human Resources Branch of the Ministry of Health, acting as the designee of the -Deputy Minister. That stage of the grievance procedure is described in the following terms in article 27 of the Collective Agreement: STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the -date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. -5- The evidence establishes that during the course of the meeting, the Hospital's representatives, in the person of Ms. R. Flandres, Director of Nursing and Mr. L. Ferguson, Regional Personnel Administrator, sought initially to represent to the designee that the Hospital would be relying, in part, on the Grievor's record. Union representative Grant Bruce responded by asking for copies of the record, and the management representatives declined to provide them. When Mr. Bmce protested to the designee, Mr. Oss told the representatives of management that it would be manifestly unfair for the Hospital to proceed on the basis of the Grievor's record without providing copies of that documentation to the Union. He, in effect,told them that they must provide the copies, which it appears they had present with them, if they intended to rely on the record. After some consultation with Mr. Ferguson, Ms. Flandres replied that the employer did not intend to rely on the Grievor's record and would justify the employee's discharge strictly on the b&is of the final incident. Onthe basis of that representation, Mr. Bruce made no further attempt to obtain particulars of. the record or any elaboration of the position which the employer was then purporting to abandon. Thereafter, however, Mr. Oss issued a written report which appears to contradict what occurred during the second stage meeting. That report, in the form of a letter dated February 11, 1987 addressed to the Grievor is as follows: Dear Sir: This is further to the meeting held on February 5concerning your recent dismissal from the Hamilton Psychiatric Hospital. I have given careful consideration to all the information available to me. In reviewing the circumstances which led to your separation I was obliged to take into account a number of factors. These included accepted nursing standards and practices, various hospital and Ministry of Health policies, and the personal work attitudes expected of staff 'members looking after mental patients entrusted to our care. The conclusion I reached is that the Hospital Administrator had sufficient grounds to terminate your services. That decision was based on your employment record at the haspita1 and the culminating incident of December 18, 1986, as set out in Mr. D.W. Fyffe's letter to you dated December 24, 1986. Yours very truly, "R, Osstt Director Human Resources Branch (eqhsis added) By letter dated February 19, 1987, Mr. Bruce registered with Mr. Oss the Union's strenuous objection to any reference in his report to the Grievor's prior record in light of what transpired during the course of the meeting. Thereafter, by letter dated March 3, 1987, counsel for the Crown asserted the employer's intention to rely on the Grievorts record: Dear Mr. Bruce: Re: Anthony Serrao, RNA 2 Hamilton Psychiatric Hospital Thank you for your letter of February 19, 1987, to Mr. R. Oss. I have been asked to respond on his behalf. As indicated in Mr. Oss's letter dated February 11, 1987, Mr. Serrao was dismissed from his employment on the basis of his past employment record and the culminating incident of December 18, 1986. This is set out in Mr. Fyffets letter to Mr. Serrao dated December 24, 1986. Mrs. Flandres, who represented local management at the Stage 2 hearing on February 5, 1987, has not. had extensive experience in labour matters. Consequently, she elected to proceed on the basis of the December 18th incident alone, despite the grounds set out in Mr. Fyffe's letter of dismissal. This was done in error. Mr. Oss based his decision, following the Stage 2 hearing, on the grounds for dismissal set out in Mr. Fyffets letter on the basis that Mr. Fyffe, as administrator, has the sole delegated authority to dismiss an individual from employment at the Hamilton Psychiatric Hmpital. We I regret any confusion Mrs. Flandres's procedural error may have caused. If you feel that your client has been prejudiced in any way by the manner of proceeding on February 5, 1987, then hospital management would be pleased to meet with you and your client at the earliest mutually convenient time to go over Mr. Serrao's past record including any relevant documents in his personnel file. If you have any questions respecting the above, please call me. Sincerely, "Mary V. Quick" Counsel After some preliminary consideration of the issue, the Board allowed the employer to adduce evidence on the part of Mr. Fyffe with respect to the reasons for his original decision as reflected in his letter of December 24, 1986. In our view, as we indicated verbally at the hearing, the appropriate principles are described in Brown and Beatty, Canadian Labour Arbitration, 1983 (Aurora) at page 480: To the extent that this doctrine relates only to the appropriate degree of discipline to be invoked, it has generally been held that an employer could not be considered to have improperly changed the grounds on which it disciplined the grievor when, in the face of a discipline letter describing only the culminating incident as the basis for discipline, it subsequently introduced evidence of the griever's record, which it actually considered at the time it imposed the discipline, to explain the basis on which the particular sanction was selected. However, an employer may be caught by the general rule prohibiting it from changing the grounds for invoking the penalty if it is shown that at the time the discipline was imposed it did not consider all or part of the prior record of that employee. Indeed, at least one arbitrator has expressed the view that an employer would not be entitled to invoke the doctrine of the culminating inciderit and rely on the employee's prior record to support the discipline imposed, even if it had considered that record at the time of meting out the discipline, unless it had specifically advised the employee concerned that it was considering his prior record. -8 - In the instant case, the issue is whether the Grievor's record was a factor taken into account by the employer in its decision to terminate his services. If it was, it can, of course, be adduced in evidence in support of its decision in these proceedings. If it was not, however, and in fact the decision was taken entirely on the strength of the final incident itself, to now introduce the Crievorls record as an additional factor would be to effectively enlarge the grounds for his discipline in a manner inconsistent with the preponderance of arbitral jurisprudence. It is a principle of fundamental importance that an employee who is disciplined be able to know, as soon as reasonably possible, the reasons for the discipline, if only to facilitate his or her right to know and attempt to meet the case against him or her. A first question to be determined is whether Mr. Fyffe took the Grievor's record into account when making his initial decision. While the Board views Mr. Fyffe as an honest witness who did not seek to mislead the tribunal, we have some difficulty with the sum of his evidence. With three years experience as the Administrator at the Hamilton Psychiatric Hospital, and several years of prior experience elsewhere in .the health-care field, Mr. Fyffe is not new to the administration of discipline. In this Board's experience, when an employer conducts an investigation and decides to review an employee's record in assessing the appropriate measure of discipline, that exercise is normally conducted in a relatively thorough way, with a point-by-point examination of the documentation that constitutes the record. In this case, that did not happen. According to Mr. Fyffe's own evidence, during the course of his hearing, the representatives of management indicated to him that they were prepared to provide to him the details of the Grievor's prior record in the event that he was not satisfied that.the final incident itself justified his discharge. In fact, Mr. Fyffe did not, either then or subsequently, take up that invitation and review the entirety of the Grievor's disciplinary record. By his own account, he decided on the basis of the material before him that discipline was justified. He related that as an experienced administrator he asked himself whether a decision to discharge the Crievor would be upheld upon arbitral review. According to his evidence, he recalled his own involvement in an incident one year prior which resulted in discipline being imposed upon the grievor and, on the strength of that, decided that a decision to discharge the Grievor would be upheld. While the Board must obviously take great care in dissecting, ex post facto, the reasoning of an individual, we have great difficulty concluding in these circumstances that Mr. Fyffe assessed the final incident in the light of the Grievor's prior record in coming to his own conclusion that termination was the appropriate Fasure of discipline. No documentary review whatever took place, nor did Mr. Fyffe appear to advert to the length of the Grievor's service or the quality of his record prior to the one incident of which he had some personal recollection. It appears, mreover, that the incident of the previous year, in which Mr. Fyffe had assessed the discipline against the Grievor, was grieved and resulted in a reduction of the measure of discipline by an external authority. While Mr. Fyffe was apparently aware of that result, it is not clear from his testimony before this Board whether he took the initial discipline which he imposed or the reduced measure of discipline into account in considering the Grievor's case. Most importantly, however, it appears on the evidence that the casual advertence to the incident of the year prior in the mind of Mr. Fyffe was more in the nature of an afterthought addressed not to the question of whether discharge was appropriate in the -10 - Grievor's case, but to the different question of whether it would "stick" when subjected to arbitral review. In the Board's view, that interpretation of the administrator's thinking is supported by the content of his letter of September 24, 1986. In that document, he specifically refers to the argument of management that the doctrine of culminating incident should be invoked in support of dismissal of the Grievor from his employment. In that portion of his letter which explains his conclusion, substantial reference is ma& to the incident itself, including the consequences for the patient. There is no reference at all, however, to the Grievor's prior record in justification of the decision to terminate his employment. Apparently the first notice which the Union had of an intention on the part of management to rely on the Grievar's record came at Stage 2 of the grievance procedure. As noted above, however, at that stage, being put to an election by the Deputy Minister's designate, the Crown's representatives specifically chose not to rely upon the Grievor's record in justification of its disciplinary action. In our view, the decision taken then, in a clear and considered fashion, was, in fact, consistent with the approach reflected in the original decision of Mr. Fyffe. In other words, prior to the letter of Mr. Oss dated February 11, 1987, there is nowhere any clear and explicit reliance upon the Grievor's record advanced as part of the reason for the decision to terminate his services. It is trite to say that the relatively elaborate procedures for the discharge of a civil servant under the Public Service Act and its regulations, as well as the provisions of Article 27 of the Collective Agreement, are intended for a purpose. Section 18(8) of Regulation 881 specifically requires that the finding of the hearing and the reasons for the recommendation as to discipline be recorded in writing. At a minimum, one purpose of that requirement is to ensure clarity and consistency in the reasons for an employee's termination. In this employment setting, as in others, it is not open to the employer to make a decision to terminate an employee on certain, grounds, and thereafter, having communicated its decision, to seek other additional grounds to bolster its decision when those additional reasons did not enter into its original decision in any substantive way. In the instant case, for the reasons related above, we cannot, on the balance of probabilities, conclude that Mr. Fyffe clearly or consciously intended the Grievor's record to form a part of the reasoning for his decision to terminate his services. The best evidence in that regard is his own letter of December 24, 1986 which, very siqly, makes no such reference. As noted, while we do not believe that he intended to mislead the Board, we find his verbal testimony on this point equivocal at best and, at worst, subject to serious doubt because of its ex post facto, self-serving nature. If there was any doubt about the employer's reliance on Mr. Serrao's prior record after the first stage, that doubt must surely have been resolved by the express undertaking of management's representatives at Stage 2 of the grievance procedure. At that point, and thereafter, the Union was entitled to proceed on the basis that the employer was not relying on the Grievor's record. We cannot accept the argument of counsel for the Crown that the Union was under any obligation to accept the employer's invitation, through her letter, to reopen the issue and to effectively allow the employer to broaden the grounds of discipline beyond what initially appeared in -12 - Mr. Fyffe's letter and the subsequent verbal representations of management's representatives at Stage 2. For these reasons, the preliminary motion of the Union is granted. The grievance shall proceed on the basis of a consideration of the merits of the discipline assessed against the Crievor in light of the final incident which gave rise to his dismissal as related in the letter of Mr. Fyffe dated December 24, 1986. mtcd at Toronto this 14th day of September 1987. / M.G. PICHER Chairman -