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HomeMy WebLinkAbout1987-1483.Lamb.88-08-29Between: IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (P. Lamb) Grievor and The Crown in Right of Onta~rio (Ministry of Community and Social Services) Employer Before: J.W. Samuels Vice Chairman J.D. McManus Member R. Trakalo Member For the Grievor: B. Herlich COUIlSel . . Cavalluzzo, Hayes & Lennon Barristers and Solicitors For the Employer:' 0. Costen Solicitor Legal Services Branch Ministry of Community and Social Services February 18, 1988 .rune 7, 1988 July 27, 1988 Hearings: 'DECISION 2 The grievor is a Residential Counsellor at the Oxford Regional Centre. She came to the Centre in December 1983. She was suspended for two 12-hour days without pay after an incident at the Centre on March 27, 1987. She grieves that there was no just cause for this disciplinary action. The Centre is home for a number of mentally handicapped adults. There are residents of all types, from profoundly handicapped to mildly handicapped. Around 1:30 in the afternoon on the day in question, a group of eight residents, three Residential Counsellors, and two recreational staff had gathered for a bowling trip. They were waiting for a bus in the ambulance entrance of the North Park Building. One of the residents was T, a thirty-year old woman, whom the grievor had never met, and who was one of the residents for whom Larry .Thompson, another Counsellor, had the primary responsibility that day. T is in the higher severe range of mental retardation (not profoundly handicapped) and has serious heart problems. The witnesses to the incident recollect the. events somewhat differently. According to the grievor, she was sitting on the steps talking with one of the recreational staff, Ms. P. Fitzgerald (her last name was Newcomen at the time), when T began staring at the grievor at very close range. This bothered the grievor and she told T not to stare, that it was rude. T was sitting near the grievor. T continued staring. The grievor repeated her admonition. This seemed to anger T. T proceeded to back up on the floor, while still sitting. T’s foot struck the grievor in the back. The grievor says she was “kicked’, but not all that hard. It’s not clear to us that T meant to kick the grievor. T was back-pedalling on the floor, and her foot may have slipped. In any event, the grievor held T’s foot so that this wouldn’t happen again. The grievor told T not to kick her or anyone 3 else, and that she couldn’t get away with this. The grievor continued her conversation with Fitzgerald. T began pacing in the doorway behind and, when the grievor looked at her, T stuck out her tongue. T came back and sat beside the grievor and patted the grievor’s head. The grievor told T not to do this. T again backed up while sitting on the floor, and again the grievor says T ‘kicked” her. Neither “kick” was with much force, but the grievor says “it wasn’t a love tap”. Now the grievor grabbed T by her coat lapels and told T not to kick her anymore. The grievor then released T, and the incident was over. And this is ail the grievor can recollect. Lisa Bauman (her last name was McCann at the time) is a Recreational Instructor. She had been at~the Centre for five years. She was in charge of the bowling trip and was very near the grievor during much of the incident. She knew T well. According to Bauman, she saw T seated behind the grievor, staring at the grievor. She heard the grievor tell T not to do this. She says that T then patted the grievor (this was a common practice for T, and, she had been patting others that day). The grievor became very agitated, grabbed T by the ankles and m “Don’t do that to me. No one does that to me and gets away with it”. T struggled to pull back. The grievor grabbed T by the upper arms and shook her, pulling her forward. T’s head bobbed forward and down, banging on the floor. T continued struggling, with her head back up now, and a bit of a red spot on the forehead. The grievor was shaking T, and T’s coat came up over her head. The grievor was now screaming and saying “No one does that and gets away with it”. T pulled back and the grievor let her go. The incident was over. Patsy Fitzgerald was a contract recreational instructor at the time. She’d been at the Centre just over three months. She says she was standing near a radiator,~ some five feet from the grievor. The grievor says Fitzgerald was sitting right beside her and they were having a conversation. Whichever is the case, Fitzgerald was right there. According to her, she 4 heard the grievor ask T not to stare. T kept staring. T “tapped” the grievor on the backside with her foot. The grievor told T not to do this. T did it again. The grievor said “don’t”. T continued. The grievor stood up and pulled T towards her by her pant leg. Then the grievor took both T’s upper arms and shook her. The grievor had T by the coat. The coat started slipping off over T’s head, until it was half undone. The grievor let go and T’s head went down, hitting the floor between her legs, and snapped back up. T backed up. The grievor turned around, saying again “You can’t do that”. And the incident was over. Larry Thompson is a Residential Counsellor. He was there in the room too. T was in the ward for which Thompson was responsible. He knew T well. According to him, he saw T sticking out her tongue at the grievor. Then T stared at the grievor, and the grievor told her to stop. A few minutes later, he heard a commotion and when he looked for the source of the noise, he saw the grievor pulling T towards her by the coat lapels. T was sitting and the grievor was kneeling. The grievor said “Nobody hits me and gets away with it”. Then the grievor got up and the incident was over. It appears to us that T was bothering the grievor by staring at her, sticking out her tongue, touching her, and then lightly kicking at her from the rear. However, there was never any sign of aggressiveness on T’s part, nor any hint of personal threat to the grievor. The grievor’s response to this tioyance was quite agitated. T was getting to her. After several attempts to stop T’s behaviour by admonishment, the grievor grabbed T vigorously by the arms or coat lapels. The grievor’s force was sufficient to shake T and to pull the coat up over T’s head. And this force was enough to unbalance T sufficiently that, when the grievor let go, T’s head hit the floor. 5 Following the incident, the group learned that the bus was not coming after all. There’d been a snafu. The grievor went back to work for the several hours remaining in her shift and thought nothing more of the incident. At the end of the day, she left for her two-and-a-half-week vacation. Lisa Bauman was very upset about what she had seen. After the residents were returned to their wards, and Bauman and Fitzgerald were back in the recreational office, Bauman raised the incident. She told Fitzgerald that she didn’t like what ,she’d seen. She said she thought it was abuse. She wanted to talk with Thompson about it. In short order, she did meet with Thompson. By around 2:30, Bauman had made her first contact with management to report the incident. She and Fitzgerald and Thompson met with management after 3:00, to relate what they had seen. By the time management decided that they should speak with the grievor, she had left for her vacation. The grievor would not know that she was alleged to have abused a resident until she returned from vacation. Following the reports by Bauman et al, management investigated the incident and ultimately the grievor was suspended for two days without pay. We have little comment on this process, except to note that the grievor was never asked for a written report, and it would have been best if she had been asked for one. Management did ask for and receive written reports from the other three witnesses. In a written report, the grievor could have set down her version of the events and there would never have been any misunderstanding by management about what the grievor said had occurred. .e Was there just cause for the discipline imposed? 6 There is little doubt that the Oxford Regional Centre takes abuse very seriously. Staff are taught how to deal with residents, and they are under no misunderstanding that a resident is not to be abused. The Ministry has issued Standards of Conduct and Disciplinary Guidelines, a copy of which goes to every employee. The employees sign to show that they have read these Standards. Copies are posted in Ministry facilities. In this document, it is made clear that it is unacceptable to endanger the well-being of any person on Ministry premises, or to use force in excess of approved methods resulting in injury or abuse to a resident. “Abuse” is defmed as The unwarranted andjor 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. And this definition is essentially reiterated in ,thq Centre’s Procedures for the Reporting and Investigation of Suspected Resident Abuse, which is section 20 of the Centre’s Procedure Manual. Mr. B. Murphy, now a Program Supervisor with the Ministry, and at the time involved here the Unit Program Director at the Oxford Regional Centre, testified that management of the Centre has put a lot of emphasis on the prevention of abuse. The Ministry’s Standards are clearly made known to staff. At staff meetings, management has made clear the importance it attaches to the prevention of abuse and has told employees that incidents of abuse would not be swept under the table. Mr. W. Fenlon; the Assistant Administrator at the Centre since 1977, testified that the facility “is death on abuse”. It is clear that abuse is intolerable and staff are so sensitized to this. - I : 7 Mr. J. F. Hewitt, the Centre’s Administrator for one and one-half years, testified that he expects Counsellors to provide care according to proper procedures. These management expectations were never challenged and it seems undeniable that members of the staff know of these expectations. Furthermore, these expectations are manifestly reasonable. Obviously, given the nature of the facility and the difficulties inherent in working with mentally handicapped people, it will not always be easy to judge how much physical force is appropriate in particular circumstances. This is a very stressful environment. But the staff are well trained, and .they are professionals. They have chosen this work. As one arbitrator has so aptly put it ” . ..when an employee enters the health care field he must do so with considerable ability to understand human frailty and with a gargantuan tolerance of aberrant and unpredictable behaviour that often attends the infirm or elderly” (Greyell in Re Baptist Housing Society (Grandview Towers) and Hospital Employees’ Union, Local 180 (1982), 6 LAC (3d) 430, at 437). In the ambulance entrance on March 27, 1987, the resident T was bothering the grievor. There is little doubt about that. But the grievor is a professional Residential Counsellor. She ought to know how to deal with this sort of bother. The grievor told us at the hearing that the Counsellors must teach the residents how to be normal, that the residents must know what is unacceptable behaviour. She was determined to “teach” T that her behaviour was unacceptable. When the grievor grabbed T by the arms or coat lapels, T was backing away, but the grievor wanted to hold her close to impress on T that she mustn’t act as she had been doing. This response by the grievor was entirely inappropriate, and she ought to have known that from the outset. All the management witnesses spoke of their meetings with the grievor after the incident, and the fact that 8 the grievor was always adamant that she had done no wrong. And the grievor maintained this posture steadfastly before us. But the grievor clearly did wrong. Firstly, obviously T is not “normal” and will never be “normal”. She needs special care and this requires a knowledge of her particular mental and physical problems. The grievor told us that she responded to T’s behaviour in the same way she would respond to this behaviour from a normal person on the street. But this makes little sense. The Residential Counsellor in a facility like the Oxford Regional Centre has to respond to resident behaviour in a manner which is appropriate in dealing with mentally handicapped people. Secondly, whatever T did, the grievor could have seen that T was not being aggressive, and it was absolutely clear that T was posing no immediate threat to the grievor. There was no reason whatsoever for the ~grievor to lay hands on T. Indeed, when the grievor grabbed T by the arms or the coat lapels, she did so to hold T close, because T was trying to back away. why didn’t the grievor just remove herself from the situation? Thirdly, the grievor did not know T at all. She had no idea what particular mental or physical problems T had. She had no idea whether T had peculiar mannerisms (such as patting people) that were being dealt with. But the grievor did know that Mr. Thompson was responsible for T and knew T well. And Mr. Thompson was only a few feet away. Why didn’t the grievor simply ask Mr. Thompson to deal with this behaviour, which the grievor found so offensive. Each resident is different, and needs special care. The grievor had no business trying..to “teach’ T something, when Mr. Thompson was at hand to deal with this resident. In our view, given that the grievor did not know anything about T’s condition or peculiarities, unless the grievor had to take action immediately in order to avoid harm to herself or some other person (and this wasn’t necessary in this case), she ought to have left any “training” which was 9 necessary to Mr. Thompson, who was close at hand. A staff member should not ignore an “assault” by a resident, but one needs to know the resident in order to judge whether or not the resident is being aggressive and does require corrective measures. Had the grievor been alone in charge of the residents, we might have viewed the situation differently. Then the grievor would have been responsible for any “training” that was necessary in response to T’s behaviour. The grievor used unnecessary force on a resident. This is a form of abuse. It was not a serious situation, but it requires a firm response by management to ensure that the grievor understands that she did wrong and mustn’t do this kind of thing again. The grievor’s steadfast insistence that she did no wrong is the very reason why discipline is necessary here. Management has to get its point across to the grievor and a two-day suspension in these circumstances is eminently reasonable. For these reasons, we dismiss the grievance. Before closing, we have two further comments to make. Firstly, one of management’s considerations in deciding to impose no more than a two-day suspension was the grievor’s fine employment record at the Centre. She had never been disciplined. And since the two-day suspension, she has had no further difficulties at work. This ought to be part of the record recorded in this award. We expect now that, if she faces a similar situation to the one which occurred on March 27, 1987, she will deal with it much differently than the way in which she handled T that day. Secondly, it is a credit to the three members of the professional staff who reported this incident to management that, by-and large, they followed the proper procedure. The Centre’s Procedures for the Reporting and Investigation of Suspected Resident Abuse provide that “It is mandatory for all staff to report any incident or suspected incident of resident abuse...“. At the time of the incident itself, things happened so quickly that the three employees really had no chance to act directly. And, while it is true that 10 they did not report the matter immediately to their supervisors, it was reasonable for them to discuss the incident among themselves first. This was not a major incident. But the grievor had engaged in very worrisome conduct, In our view, in the end the three employees did the correct thing. They took their concerns to management. They realized that they had witnessed an “incident or suspected incident of resident abuse”. Done at London, Ontario, this 29th day of August, , 1988. J. D. McManus, Member R. Trakalo, Memher