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HomeMy WebLinkAbout1987-2395.Tucker.89-09-11iL -_i ONTARIO EMPLOY~S OE LA CcJ”RONNE CROWN EMPLOYEES DEL’OONIARIO GRIEVANCE C$XvlMISSION DE ~Eiil$ilENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEAENT BOARD - and - The Crown in wright (Ministry Of COmmunity & Before: For the Grievor: For the Employer: Hearings: Between: OPSEU (Tucker) Grievor of Ontario Social Services) Employer R.J. Roberts Vice-Chairperson G. Nabi member M. O'Toole Member M. Ruby Counsel Gowling, Strathy & Henderson Barristers & Solicitors E. Maksimowski Counsel Legal Services Branch Ministry of Community & Social Services June 21, 23, 1988 February 24, 1989 July 18, 1989 This is a discipline case. The grievor grieves a ten-day suspension he received for allegedly "back handing" a mentally retarded resident of one of the facilities operated by the Ministry. The Ministry put forward two witnesses who claimed that they saw the incident in question. The grievor testified that he could not recall the specific day upon which the incident allegedly occurred and made a general denial that he .ever "back handed" the resident in question. The case, therefore, turned * virtually entirely upon the credibility of the two witnesses for the Ministry. Finding that their evidence was clear and convincing, we uphold the discipline and dismiss the grievance. The grievor is a long-term employee of the Oxford Regional Centre. He commenced employment as a Residential Counsellor at this Centre in October, 1959 and became a member of the permanent staff in 1960. In 1967, he was promoted to the position of Residential Counsellor 3. In this capacity he functioned as an Assistant Supervisor, taking charge of the ward when the supervisor was off work, doing paper work in the office and detailing the staff. At the time of the incident, the grievor worked in the Lakeview Residence. This was a freestanding building on the grounds of the Oxford Regional Centre which housed residents who were severely developmentally handicapped with behavioral problems. This was a "locked" facility. residents, both male and female. 2 It housed about 26 Physically, Lakeview Residence was like a long narrow rectangle. In the middle of the rectangle were the main entrance, the offices, a staff kitchenette, and two large common areas, one on either side of the main entrance. Then, at one end of the residence were the bedrooms and washrooms for the female residents, and at the other end were similar facilities for the males. Each day, one of the large common areas -- the one nearest the staff kitchenette. -- was used as a dining room. Groups of about 6 residents each were assigned to tables in this room. At lunch time, which commenced around about noon each day, the meals for the residents arrived from a kitchen elsewhere on the grounds of the Centre, the residents took their places and the counsellors served them. At the same time, the counsellors ensured that order was maintained and no resident encountered any difficulty such as choking on his or her food. There was a well-established procedure that the residents were expected to follow when they had finished eating. Dishes were cleared table-by-table. When all of the residents at a particular table finished eating, they were given permission to 3 rise together and bring their plates and cutlery to a cutlery truck located near the back wall of the room. As part of their programing, the residents were expected to follow a set procedure when putting their dishes and cutlery away on this truck. They were expected to scrape the food scraps from their plates into a container on one side of the truck, place their dishes in the middle, and put their cutlery into a basket on the other side of the truck. As can be imagined, the residents were not always inclined to follow this procedure to the letter. So in order to ensure that they did, one of the counsellors would take up a position near the cutlery truck. If a resident failed to observe the proper procedure, it was up to this counsellor to remind them and direct them back to the truck to do things properly. It also fell to this counsellor to remind the residents to go to their respective washrooms to brush their teeth. One of the residents at Lakeview was Ms. S. C. who suffered from Down ' s Syndrome. She was the smallest of the female residents standing no more than 4'8" to 4'9" tall and weighing about 100 pounds. Perhaps because she tested positive for a hearing problem she sometimes tended to ignore a direction from the counsellor near the cutlery truck to return and put her dishes, etc. away properly. When that happened, the counsellor 4 would "assist" her back by putting his or her hand S. C.'s shoulder and guiding her back to the truck. This essentially was what preceded the incident leading to the suspension of the grievor. The evidence of the Ministry was that after the grievor guided S. C. back to the cutlery truck to put her dishes away properly, he "backhanded" her on the back of her head as she then walked away toward the women's washroom t.o brush her teeth. The main Ministry witness to this incident was Mr. Peter Overgaauw, a student in the Fanshawe College course in Developmental Services Work. This was a two-year work-study program. On the day in question, January 9, 1987, Mr. Overgaauw was in the third day of a ,four-month placement at the Oxford Regional Centre. He was working on the day shift, from 7:00 a.m. to 3:00 p.m. His duties in this, his first week in the placement, were to observe the way in which the fulltime counsellors carried out their developmental activities and supervised mealtime, etc. The idea was to observe and help out, e.g., help serve the meals, assist the residents in brushing their teeth, etc. Mr. Overgaauw testified that at the time of the incident, he was standing right next to the cutlery truck. The grievor was standing directly in front of the truck, supervising the residents as they went around him to put their dishes, etc. away. 5 This meant, he testified, that he was only two to three feet away from the grievor when the incident took place. According to Mr. Overgaauw, when S. C. came up, she failed to follow the proper procedure. Not only did she put her leftover food in the one compartment but she also put her silverware in that same compartment. AS she started to walk toward the women's side of the residence, he said, the grievor reached out and grabbed her by the back of the neck to direct her c back to the dish cart. He told her,to put her silverware where it belonged. After S. C. complied, Mr. ,Overgaauw said, the grievor, with his hand still on her neck, redirected her back toward the women's side of the residence and told her to go and brush her teeth. Then, as she was walking away he "back handed" her in the back of the head with the same hand as he used to redirect her. Mr. Overgaauw said that he saw the actual contact of the grievor's hand with S.C.'s head. He said that the blow was not hard enough to knock her off her feet but it was hard enough to make her head jolt forward. After that, S. C. continued on toward the women's side to brush her teeth. He did not, Mr. Overgaauw said, recall the tone of voice that the grievor used, nor could he tell how tightly the grievor grabbed S. C. in the first instance. 6 In an extensive cross-examination, counsel for the Union took Mr. Overgaauw through a number of written statements which he had given to authorities on various occasions prior to this hearing. It was pointed out to Mr. Overgaauw that in his first statement, which was given to an investigative committee called the Blake Committee on January 26, 1987, he said that the grievor "grabbed...[S. C.1 by the neck obviously applying pressure because of the look on . ..[S. C.'sl face." It was put to Mr. Overgaauw that this conflicted with his later statement to the Ontario Provincial Police, where he said, "I couldn't see...IS. C.'sl face to see how she was reacting." It was further pointed out that in his testimony on direct, Mr. Overgaauw again asserted that he could not see S. C. 's face and so could not tell how much pressure the grievor was applying when he grabbed her and guided her back to the cutlery truck. When Mr. Overgaauw was asked to explain this inconsistency, he said, "When I made my statement on January 26, my best recollection was that I could see her face. My recollection now is that I could not see S. C.'s face. I am not saying that my best recollection is now. I agree that S. C. 's face would have been turned away from me during the incident." Upon re- examination, Mr. Overgaauw said that it was possible he would have seen S. C.'s face when she was turned back to the cutlery truck. 7 Mr. Overgaauw also was extensively questioned on cross- examination regarding the potential for mutual reinforcement of his version of the incident with that of the other eye witness, MS. Joanne Morin. The grievor flatly denied discussing the incident involving the grievor with Ms. Morin. He said that he only talked to Joanne Morin on one occasion, and that was in the big building where she was a Hospital Assistant. He said that they just talked about the "stuff" going on in the ward. They did not discuss anything specific, and they did not discuss this incident. In response to further questioning, Mr. Overgaauw stated that he had no idea before he was given a report which was filed by Ms. Morin that anyone else was reporting cases of abuse in the facility. As a result, he said, he could not have told the Administrator of the Institution, Mr. W. Fenlon, on January 26, 1987, that Ms. Morin may also have witnessed this incident. Later in the cross-examination, Mr. Overgaauw said that since January, 1987, he had several conversations with Ms. Morin, but these were in conjunction with proceedings involving unrelated allegations of abuse against another Residential Counsellor. He said that in these conversations certain incidents were talked about but he never mentioned this case to her. He said, "I don't think I ever mentioned . . . [S. C.'sl name to her." 8 Ms. Morin also was a Fanshawe student who had just begun her four-month placement at the Oxford Regional Centre. She was assigned to work at the Lakeview Residence on the 12:OO p.m. to 8:30 p.m. shift. Ms. Morin testified that at about 12:20 p.m. on January 9, 1987, she entered the Lakeview Residence by the front door and put her purse in a staff office opposite the lounge to the immediate left of the entrance. As she proceeded out of this room and toward the staff kitchenette, Ms. Morin said, she heard the grievor tell one of the female residents to hurry up. Then, Ms. Morin said, as the woman walked past him the grievor gave her a back hand slap to the back of the head. The female resident "kind of tumbled forward", Ms. Morin stated, but she did not fall. As already indicated, Ms. Morin was in motion, walking toward the position of the grievor when she observed the incident. Ms. Morin said that she did not recall which hand the grievor used and did not recall who the female resident was. She described the resident as having short, brown hair. The resident, she added, tumbled forward but then just went to the female washroom to brush her teeth. Mr. Morin asserted that she never spoke to Mr. Overgaauw about this incident. She said that during the incident she had eye contact with Mr. Overgaauw. "When.' it happened," Ms. Morin said, "I looked over at him and he looked at me. That was it." 9 There was some discrepancy between the testimony of Ms. Morin and Mr. Overgaauw. Ms. Morin placed the grievor beside the cutlery truck, rather than in front of it. She also placed Mr. Overgaauw near a cabinet toward the front of the room, as opposed to the other side of the cutlery truck, at the back of the room. In addition, Mr. Overgaauw did not recall in his testimony making any eye contact with Ms. Morin. Ms. Morin stated that after the incident she went about her business and did not say anything to the grievor. In fact, she 'did not make any other move until she went to the Lane Building for her pharmacology placement.' Around about this time, she said, she had a conversation with Mr. Overgaauw in the van taking them to London. This was thought to be on Friday, January 23. Mr. Overgaauw asked her if she saw anything unusual at Lakeview and, MS. Morin said, she replied that she had. He then said that he was thinking of reporting the. incidents that he observed and MS. Morin said that she replied that if did, she would tell what she saw. On cross-examination, Ms. Morin agreed with a suggestion that she said to Mr. Overgaauw, "If you need my help, I am behind you. '9 No particulars were discussed during the van ride, Ms. Morin said. There were other people in the van and there was a question of confidentiality. Initially, Ms. Morin said, she and 10 Mr. Overgaauw were sitting in different places on the van and then he came up to her and sat behind her. That is when he asked about seeing unusual things at Lakeview. The conversation, Ms. Morin said, lasted approximately five minutes. Then Mr. Overgaauw went back to sit in his original position. Shortly thereafter, Ms. Morin was requested to meet with the Blake Committee. The Committee asked her if she saw any abuse at Lakeview. Ms. Morin testified that she had, and cited a few incidents, including the one involving the grievor. As in the case of Mr. Overgaauw, there were other interviews with Placement 'Supervisors at Fanshawe, an Investigator from the Ministry, and the Ontario Provincial Police. Ms. Morin was extensively cross-examined as to why she did not report the incident involving the grievor at an earlier date. MS. Morin essentially replied that she knew she should have reported it but did not because she felt new, was a student who was supposed to be learning, was to be there for only four months, and throughout the remainder of her time at Lakeview, the grievor was "fine otherwise." She said that she got along with the grievor, there were no problems between them. It also was pointed out to Ms. Morin upon cross-examination that before the Blake Committee and in her statement to the Ontario Provincial Police, she did not mention anything about the 11 female resident stumbling forward. She was asked whether that detail was added in her testimony after she reviewed Mr. Overgaauw's statement. MS. Morin adamantly denied this suggestion. She said that she went over and over the incident in her mind and she remembered seeing the resident stumble. She said, "I don't know if the patient was acting up, if there was provocation or whatever before the incident. I saw her put her dishes in the cart and then he said hurry up and then he hit her in the back of the head." Later in her cross-examination, Ms. Morin added, "She walked right in front of the grievor. He hit her. She stumbled and continued walking. I was walking toward them. I saw him hit her. I could not see his hand at the back of her head. I could see his hand go up and the motion toward the back of her head, but not the actual contact. Her head went forward and she stumbled. I don't recall her making any sounds. I don't recall the grievor saying anything else." When further pressed, Ms. Morin insisted that she did not misinterpret what she saw. The grievor testified that he did not recall what happened on January 9, 1987. It was not until January 26, he said, that he heard of any allegation that he hit S. C. The grievor did testify generally as to the behaviour of S. C. and her table mates when it came time to clear away their dishes. He said, "With that table, once you called them, all eight would make a 12 mad dash for the truck. There would be holy bedlam around that truck." As to S. c., the grievor said that she was the smallest female resident, quiet and shy. She often had trouble getting the proper utensils in the right place on the truck. If she ignored you, the grievor said, you had to "assist" her back by putting your hand on her shoulder and guiding her back -- S. C. did test positive for a hearing problem -- and then she would do it properly. Although she was quiet, the grievor said, S. C. did have a problem with self-abuse. Usually after meals, he said, she would tend to slap herself, pick at a sore on her lip, or bang her head against a wall. One time, the grievor said, S. C. had been caught in a washroom banging her eye on a tap. Often, after S. C. put her dishes away, she would bang her head on a wall. Usually this would be preceded by the act of slapping herself with either one or both hands. After she banged her heard against the wall, she would let out a loud scream. In order to ensure that S. C. did not hurt herself during such episodes, the grievor said, they would place a helmet on her head and put mitts on her hands. S. C. also was on a behavioral modification program, the grievor testified, designed to assist her to stop engaging in this inappropriate behaviour. 13 The first notification of this incident that he had, the grievor testified, came at about 9:30 p.m. on January 26, 1987, when he received a telephone call from Mr. H. Duncan, the Unit Director. Later, the grievor said, he was interviewed by the Ontario Provincial Police, although he did not give any written statement. Although he was asked to testify before the Blake Committee, the grievor added, he never did. Before he could testify, he checked with the President of the Union, and, he said, she advised him not to got in front of the Committee. In all, the grievor was suspended with pay for sixty days. Thereafter, he served a ten-day unpaid suspension and when he returned to work, he was assigned to drive the food truck around the hospital grounds. It was agreed between the parties that the grievor preferred this new assignment and did not wish to return to his old duties in the event that his grievance was successful. Two other Residential Counsellors at Lakeview, Mr. R. Reeves and Ms. M. McIsaac, also testified to the tendency of S. C., the female resident, toward self-abuse. They confirmed the grievor's testimony that particularly after a meal, S. C. would tend to slap herself and bang her head against the wall. Mr. Reeves testified this would occur at least once a day. Ms. McIsaac gave similar testimony. She added that this behaviour usually occurred around medications, meals, or snacks -- anything I . 14 associated with her mouth. Apparently, S. C. did not like her mouth to be messed up. It is then that she would cry and become self-abusive. At the end of the day, the only issue presented to the Board was one of credibility of the two witnesses on behalf of the Ministry, Mr. Overgaauw and Ms. Morin. There was agreement between the parties that a finding of fact that the grievor did, indeed, deliver a back hand slap to the back of S. C.'s head had to supported by clear and convincing evidence. Re Chilliwack General Hospital and Hospital Employees's Union, Local 180, (1985), 16 L.A.C. (3d) 228, at 229 (Munroe, British Columbia). It was submitted on behalf of the grievor that due to the frailties and inconsistencies in the evidence of the two eye witnesses, there was no clear and convincing evidence that such an assault occurred in this case. It was pointed out that the alleged incident occurred at lunchtime, when there was much noise in a gathering of 26 severely handicapped residents in one place. The resident involved, S. C., had a history of engaging in self- abusive.behaviour like slapping herself and banging her head particularly after meals. In these circumstances, it was submitted, the two students, being new to the situation, simp.ly misinterpreted what was going on. It was suggested that Mr. Overgaauw might have seen S. C. slap herself, or, perhaps, get slapped by another resident. Apart from this potential for 15 misperception, it.was submitted, Mr. Overgaauw's evidence was untrustworthy because his version of the incident changed in some respects from statement-to-statement. As for Ms. Morin, it was submitted, while it was not disputed that her testimony related to the same incident, it was inconsistent in several respects with that of Mr. Overgaauw, e.g., as to where the grievor and the latter were standing, and there was some indication that the two witnesses might have compared notes with each other, thereby reinforcing in each other's minds certain "details" which they did not really observe. In this regard, the Board was referred to the apparent addition by Ms. Morin of the detail regarding S. C.'s stumbling forward after the slap. We find, however, that there was clear and convincing evidence that the grievor did, on this single occasion, slap S. C. on the back of the head as she proceeded toward the female washroom to brush her teeth. Certainly, there were frailties and inconsistencies in the evidence of the two eye witnesses. But that is no more than is to be expected "from honest witnesses retelling their recollections at different points in time." Re Toronto Hydo-Electric System and C.U.P.E., Local 1 (19781, 19 L.A.C. (2d) 252, at 263 (Kennedy). When determining the credibility of a witness, it is important to assess the totality of his or her presentation, including "opportunities for lb knowledge, powers of observation, judgment and memory, ability to describe clearly what he or [she] has seen and heard." Phillips V. Ford Motor co. of Canada Ltd., [19711 2 O.R. 637, at 645 (Ont. C.A.). When we examine the totality of the presentations of Mr. Overgaauw and Ms. Morin, we find that their evidence as to the essential ingredients of the assault had the unmistakable ring of tyuth. There was no conflict between them. In every essential respect, Ms. Morin's testimony corroborated the evidence of Mr. Overgaauw that as S. C. was walking away from the cutlery truck the grievor delivered a back hand slap to the back of her head. The integrity of this aspect of the evidence of these two witnesses went unshaken despite extensive cross-examination and repeated suggestions that this correspondence came about because of consultation between Mr. Overgaauw and Ms. Morin after the event, and a desire on Ms. Morin's part to back up the story of Mr. Overgaauw. We found the insistence of these two witnesses that no such consultation took place to be most credible. We also reject the suggestion that, in any event, there was a misperception by Mr. Overgaauw and Ms. Morin. When Ms. Morin witnessed the incident, she was directly facing the resident. She would have been a position to see S. C.'s hand go up if she was to attempt to slap herself, as suggested on behalf of the grievor. Yet, instead, she testified time and again that what she .- saw was the grievor's hand go up to the back of S. C.'s head. On balance, we must conclude that there Was clear and convincing evidence to support a finding of fact that the grievor delivered a back hand slap to the back of S. C.'s head after, in compliance with his instruction, she placed her cutlery in the proper basket and proceeded toward the female washroom to brush her teeth. Before leaving the matter, however, the Board wishes to state that on our assessment of the evidence, it seemed that this incident constituted nothing more than a momentary lapse in the conduct of the grievor. The grievor impressed us as a long-term Residential Counsellor with an impeccable work record. Moreover, he seemed to us to have a genuine fondness for the residents in his charge. We are pleased that he is satisfied with his current position at the Centre, however, we wish to add that we certainly would not have any reservations about the matter if he should seek to return to a position as a Residential Counsellor. 18 The grievance is dismissed. DATED at London, Ontario, th .is 11th day of September, 1 989. R. J. Roberts, Vice-Chairperson ALLi t&d* G. Nabi. Member m 3 LJyh/ M. O'Toole, Member