HomeMy WebLinkAboutLagerquist 14-10-01In the Matter of an Arbitration
`IlTaypoint Centre for Mental Health Care
(Hereinafter referred to as "the Employer•")
Ontario Public Service Employees Union - Local 329
(Hereinafter referred to as "the Union")
Regarding: Grievance of Brian Lagerquist
Sole Arbitrator: Felicity D. Briggs
For the Employer: Jason Green, Counsel
For the Union: Boris Bohuslawsky, Counsel
On December 17, 2010, Mr. Brian Lagerquist was involved in two
incidents in the Forensic area of the Centre, both of which attracted
discipline from the Employer. There was no dispute between the parties
that the grievor's actions on December 17, 2010 were deserving of
discipline. However, they did not agree on the quantum of discipline.
It became apparent in early discussions with the parties that there were
very few, if any, disagreements on the facts. It was equally clear that if
this matter were to be litigated in the traditional fashion, many days of
evidence would be required. Accordingly, the parties agreed to proceed
by way of agreed facts and supporting documents. While some
considerable effort was required to achieve an agreed statement there
is no doubt that much hearing time was avoided. I commend the parties
for these efforts. Further, it should be understood that at the conclusion
of the submissions the Board was of the view that it had all of the salient
information needed to arrive at its decision.
The parties agreed to the following facts:
Background
1. Waypoint Centre for Mental Health Care is a public hospital
corporation pursuant to the Public Hospitals Act.
2. Waypoint provides an extensive range of acute and longer term
psychiatric inpatient and outpatient services as the region's only
specialty mental health hospital, including specialized and
comprehensive assessment and treatment to individuals suffering
from severe mental illness using best clinical practices based on
the latest advances in scientific research, patient care and
treatment.
3. In addition, Waypoint offers a general forensic program serving
the Waypoint catchment area as well as the province's only high,
security forensic mental health facility for adult males. The
provincial programs specialize in the treatment of patients whose
institutional behavior represents a serious risk to the safety of the
patient or to others, and who cannot be safely managed in a less
secure hospital environment.
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4. At all times, relevant to this grievance, the high security forensic
mental health facility was located in the secure Oakridge building
on the Waypoint site.
S. The Ontario Public Service Employees Union is the bargaining
agent for all employees of Waypoint save and except certain
defined exclusions. The bargaining unit of approximately 1,200
employees, which includes registered nurses and registered
practical nurses, was covered by terms and conditions of the
2009-2010 collective agreement between the Hospital and OPSEU
during the relevant time period of this grievance. A copy of the
collective agreement is enclosed at Tab 1 to this Agreed Statement
of Facts.
6. The grievor Brian Lagerquist was, at all times relevant to this
grievance, employed by the Hospital as a registered nurse in the
Oakridge facility. His seniority date was February 2008 and he
resigned his employment with the Hospital effective July 2013.
7. Prior to these incidents the grievor had not been disciplined by
the Hospital. Further, the Hospital did not report these incidents
to the College of Nurses.
Issues In Dispute
8. There are two issues in dispute in this grievance, being the proper
quantum of discipline imposed for certain conduct by the grievor
on December 17, 2010 and whether subsequent restrictions
placed on the grievor were justified.
9. A copy of the grievance filed by the grievor and raising these
issues is enclosed at Tab 2 of this Agreed Statement of Facts.
10. The jurisdiction of the arbitrator in this matter arises from
the collective agreement and the parties agree she is properly
seized of all issues.
Facts Giving Rise To This Grievance
11. On December 17, 2010, the grievor was involved in two
separate incidents that resulted in the imposition of discipline.
12. The first incident involved an altercation between the
grievor and another employees working as a Personal Operational
Support Worker ("POSW") at the time.
13. For context, there had been recent changes to the roles of
the R.P.R. Leads and POSWs that reflected the Hospital's need,
particularly in Oakridge, to ensure the focus of nursing staff was,
to the extent possible, on direct patient care. As a result, POSWs
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began taking responsibilities for coordinating the security of yard
and recreational activities which had traditionally been seen as
work done by the RPN Lead. A copy of a memorandum reflecting
these changes is enclosed as Tab 3 to this Agreed Statement of
Facts.
14. In the incident leading to discipline in this case, the POSW
involved was engaged in exercising these responsibilities by
directing that the Grievor take the radio in the Recreational
Centre.
15. A letter summarizing the results of the investigation into the
incident and imposing a five day suspension in respect of the
grievor's conduct at that time, is enclosed at Tab 4 to the Agreed
Statement of Facts.
16. The second incident involved patient abuse by the grievor
of a patient, who was one of a group of patients for whom he was
generally responsible during the shift.
17. The patient involved in this incident on December 17, 2010
had been in Oakridge Ward 05 since November 1, 2010. Ward 05
is part of the Structured Intervention Program, as it was known at
that time, and primarily consists of low functioning
(developmentally delayed) patients with behavioral issues.
18. in that regard the patient was diagnosed as suffering from a
schizo-affective disorder (a type of schizophrenia which includes
a mood disorder) and the behaviours demonstrated towards the
Grievor on December 17, 2010 were consistent with the behavior
generally.
19. A letter summarizing the results of the investigation into the
incident, and imposing a ten-day suspension in respect of the
grievor's conduct at the time, is enclosed at Tab 5 to this Agreed
Statement of Facts.
20. A copy of the summary notes of the investigation interviews
with witnesses to the incidents is enclosed as Tab 6 to this Agreed
Statement of Facts. The disciplinary determinations made by the
Hospital on the basis of the investigation interviews are those set
out in the letters of discipline.
21. A copy of the grievor's own written statement as provided
during the investigation interview process is enclosed as Tab 7 to
this Agreed Statement of Facts.
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22. The parties agree that there is no dispute over the material
facts underpinning the discipline and that the only real issue is the
proper quantum of discipline imposed for the grievor's conduct
on December 17, 2010.
23. The Hospital agrees for the purpose of this hearing that the
grievor expressed remorse for his behavior on December 17,
2010 on several occasions following the incidents. However, the
grievor also denied that his conduct in respect of the patient in
swearing at him and in threatening to place him in seclusion
amounted to patient abuse.
Least Restraint
24. For a registered nurse, the use of restraints on patients
suffering from mental health issues is governed by the provisions
of the Mental Health Act, the Patient Restraints Minimization Act,
2001, College of Nurses Ontario policy and practice standards
regarding least restrain, and the Hospital's Policy' on Least
Restraint, a true copy of which is enclosed as Tab 8 to this Agreed
Statement of Fact.
Work Schedule Restrictions
25. In addition to the discipline that was imposed on the
Grievor for the incidents set out above, the Hospital also imposed
certain restrictions on the grievor's work schedules for a period of
time thereafter for the purpose of monitoring his work
performance through more direct managerial oversight. The
specifics of the restrictions are as set out in the discipline letter
enclosed as Tab 5 to the Agreement Statement of Facts.
26, The parties agree that, in the event arbitrator. Briggs finds
that the restrictions placed on the grievor's work schedule in the
period following discipline were unjustified in whole or in part,
the question of appropriate remedy will be addressed by the
parties before arbitrator Briggs and she shall be seized to resolve
this matter,
Further Documents
27. The parties agree that the grievor can submit his
Investigation Statement, a further Will Say Statement and
supporting documents for consideration by the arbitrator in this
matter and that such documents are enclosed herein as Tab 9 to
this Agreed Statement of Facts,
In
It is necessary to set out the two letters of discipline, which set out the
Employer's reasons. The letter dated January b, 2011 regarding the five-
day suspension stated as follows:
This is to advise you of the results of our meeting on January 4,
2011. You were accompanied at this meeting by your Union
Representative Larry Thompson.
At this meeting, the results of an investigation into your conduct
on the evening of December 17 were reviewed. The investigation
was conducted by Mrs. Linda Maurice, R.N., your line manager,
and. Mr. Don Smith, R.F.N., Manager Oak Ridge Security and
Central Rehabilitation Services.
The investigation concluded that on December 17 you:
• Refused to work cooperatively with another staff member
and therefore compromised the safe and effective operation
of the Recreation Centre activity you were assigned to
• Displayed your anger toward this staff member by referring
to him in derogatory and profane terms ("a piece of shit",
"Fucking Attendant 1"). This was done so openly and loudly
that staff members positioned throughout the Recreation
Centre, and the numerous patients in attendance at the
event, were subjected to it. Furthermore, this display lasted
for a substantial period of time.
You have acknowledged that your conduct was inappropriate
and unprofessional, have apologized for it, and have given
assurances that it will not occur again.
Your conduct on this occasion was inappropriate and
unprofessional. Furthermore, clinical staff who are unable to
control their anger and who work with vulnerable mentally ill
patients, place those patients and other staff who work with
them at risk. This conduct is damaging to the therapeutic
milieu, negatively effects operations and causes unnecessary
stress for other staff members. It cannot continue. Therefore,
you are being removed from employment (suspended) for the
equivalent of five days without pay effective January 8, 2011.
Due to your status as a part time employee, over the past six
months you have averaged 24.25 hours per pay period, or 1.73
hours per calendar day. Accordingly, you will not be eligible for
further shifts until (S x 7 1/4/1.73) 21 days from January 8. In
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respect of this disciplinary action alone, you will not be eligible
to return to work until January 29, 2011.
In addition, you are directed to contact the MRCP Employee
Assistance Program provider to obtain assistance to address
the apparent difficulties you demonstrate in controlling your
anger in the workplace. By February 13, 2011 you must
provide satisfactory evidence to the MHCP Employee Health
Nurse that you are engage in this process and that attests to
the fact that contact has been made and that services are being
provided.
This conduct is serious and will not be tolerated in this
workplace. Further incidents of inappropriate and/or
unprofessional conduct will result in further discipline up to
and including dismissal.
You have the right to grieve this action.
On January 20, 2011 the grievor received the following letter:
This is to advise you of the results of our meeting on January 4.
You were accompanied at this meeting by your Union
Representative Mr. Larry Thompson.
At this meeting, the results of an investigation into your conduct
on the evening of December 17 were reviewed. This investigation
was conducted by Mrs. Linda Maurice, R.N., your line manager and
Mr. Don Smith, R.P.N., Manager Oak Ridge Security and Central
Rehabilitation Services.
The investigation concluded that on December 17 you:
• Told patient #39370 to "shut the fuck up"
• Threatened to "seclude" that patient (i.e. return him to his
ward and lock him up alone in a room) unless his behavior,
which you found annoying didn't stop
You have indicated that your above statement to this patient was
precipitated by his asking you what was the matter (you appeared
angry) and then teasing you about your age - calling you "gramps"
and "pops". You indicated that the patient has also been
"harassing" you with remarks about your age earlier in the shift.
You have acknowledged that this conduct was inappropriate, you
have apologized for it, and you have given assurances it will not
occur again, although you expressed the view that neither the use
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of profanity in this context nor the threat to lock the patient up
constitutes "patient abuse".
Your conduct on this occasion is an abuse of your authority and
clearly constitutes patient abuse. Seclusion/restraint is and
intervention which can, and frequently is, initiated by an R.N.
However, in accordance with the Mental Health Act of Ontario, it
must only be used when it is necessary in order to avoid the
person causing serious bodily harm to themselves or to another
person. Threatening to lock a patient in a room by himself,
illegally, in order to modify inappropriate but harmless behavior
constitutes patient abuse. The use of profanity when addressing a
patient constitutes abuse.
Abuse of authority is not acceptable. There is a zero tolerance for
patient abuse. Neither can continue, Therefore, you are being
removed from your employment (suspended) for the equivalent
of ten days without pay effective January 29, 2011. Due to your
status as a part time employee, over the past six months you have
averaged 24.25 hours per pay period or 1.73 hours per calendar
day. Accordingly, you will not be eligible for further shifts until
(10x7 :/4 /1.73) 42 days from January 29. In respect of this
disciplinary action, you will not be eligible to return to work until
March 13.
Upon your return you are directed to meet with your line -
manager Mrs. Maurice as often as is necessary to review all
legislation and MHCP policies and procedures pertaining to
patient care, patient rights, patient abuse and such other material
as Mrs. Maurice deems appropriate.
In addition, upon your return to work performance must be
monitored for improvement. To facilitate this monitoring, 40% of
the hours worked in each pay period beginning with your
eligibility to return on February 13 and until you have
accumulated 100 total hours worked, must be worked between
the hours of 7:00 and 19:00 on non -stat weekday days. That is,
days when your line manager would normally be at work. Once
the 100 hour marls has been reached, then 20% of your worked
hours per pay period must fall between the hours of 07:00 and
19:00 on non -stat week -day days until further review.
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Patient abuse will not be tolerated in this workplace. Any further
example will result in additional discipline up to and including
dismissal.
You have the right to grieve this discipline.
The two incidents for which the grievor was disciplined took place in
the Rec Centre and within a one-hour period. While the grievor has
never denied the events, it was his assertion at the hearing into this
matter that he was provoked. He contended he had been subjected to a
sustained course of harassment from the patient (hereinafter referred
to as "Patient P") he later threatened and this caused him significant
stress. While it was not suggested that this is sufficient reason for his
later conduct, the grievor urged that he experience earlier during this
day should be considered as a mitigating factor.
It is appropriate to set out salient sections of the grievor's investigation
statement and his will say statement. The grievor noted the following:
• About a week before Dec 17, I took part in a room extraction
of Patient P. An outline of the incident is found on page 1 of
my Investigation Statement. The patient was swearing and
telling staff to "come and get him". The extraction was for
the purpose of giving him a psychiatric injection to sedate
him. Given the patient's behavior, protective gear was
provided to three of the six staff members involved in the
extraction as a precautionary measure against injury. (Such
gear would not be provided in instances where it was not
thought there was a heightened risk of injury to staff). As I
was not among those wearing protective gear, it appears
that the patient was able to recognize me, and, as it turned
out, he remembered me the following week.
• On Dec. 17, shortly after I had reported for duty on Ward 05
at 3:00 pm, Patient P started harassing and verbally abusing
me. It was clear that his comments related to the earlier
extraction. While the patient did not make any physical
gestures toward me (i.e. show his fists), his voice was raised
and his demeanor was threatening. He did not present as
joking or engaging in light banter. I felt as though the
patient "had it in for me".
• I tried using therapeutic interventions to calm the patient.
However, he continued making threatening and abusive
comments.
• As I passed Patient P's door he had his head out and said
"Hey old man you punched me in the balls". "I am going to
get you for that." "I am going to have you charged." This was
the first time I had seen him since I was involved in the 6
man extraction team a week ago......
• I sat down in the constant observation chair and Patient P
continued to call me an "old man, gramps, pops" and accuse
me of punching him in the balls. He most likely had not seen
any of the other staff involved in the 6 man extraction since
it happened. However, he recognized me right away. I told
him I did not punch him. I would never do that. If he thinks
he got punched it must have been someone else. (I was
holding his foot to keep him from kicking anyone and I was
facing away from his body.)
• Patient P continued this barrage of insults and accusations
for about 15 minutes until the medication cart came by and
D.C. and B. L closed his door.
• D.B. asked Patient P if he had ever been told that he talked
too much and he said "yea lots of times".
• At 1800 hours I was given the corridor keys and I let the
patients out when told to by the group 3. Patient P
immediately began verbally attacking me again and again
and calling me "old man, gramps, pops". He threatened to
charge me. The threatened me again when he said "I'll get
you for punching me in the balls".
• He continued to accuse me of punching him in the balls I
told him over and over again that I did not do that and I
would never do that to him. He just kept it up. I told other
staff what he was saying to me.
• No one came to my aid or offered any support to deter this
client from this abuse toward me. In all my 14 years this is
only the second time I have been harassed severely by a
patient.
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• When D.C. RPN came to Patient P's room with medications, I
said that the patient was being very abusive. As I noted in
my Investigation Statement, "Don asked Patient P if he had
ever been told that he talked too much and he said "yea lots
of times". However, there was no other intervention on the
part of ward staff.
• Later during the afternoon of Dec 17, at around 4:00,
Patient P had an altercation with another patient in the
yard. As set out on page 2 of my Investigation Statement, I
was in the yard at the time and took steps to bream up the
altercation. The "group 3s" consist of RPNs whose job
functions generally include assisting in security and it was
for that reason that I reported the incident to group 3 J.&
However, neither of the patients involved in the altercation
were removed from the yard or put into seclusion.......
• I encountered Patient P again later that afternoon, when I
returned to ward 05 at about 6:00 pm. The patient began to
make the same kind of comments as previously. Again,
although I tried to assuage the patient's hostility and to
reassure him, this did not have any effect.
• When I arrived at the rec centre B.R. (group one) told me to
"take this radio and go to the end". I was not expecting to
see a group one at the door. I was quite surprised and even
more surprised to be "told" what to do by a group one,
especially in the manner in which it was communicated to
me. (It's all about communication.)
• I said to him "I am not taking the radio and I am not going at
the back. I am playing pool." My reaction was definitely
unprofessional and unacceptable and I am sorry about it.
(Incidentally, I have never in over 14 years been asked to go
to the back of the rec centre with a radio. I have always been
with patients, interacting with them and being accessible to
them ready to therapeutically intervene when necessary. I
have never been assigned to the outer or inner office.)
• I frequently play pool when at rec, centre and I do my best
to always ask the group 3 for permission and I thank them
at the end of rec.
• When I went into the rec centre I saw M.A. sitting in a chair
at the front and J.H. was setting up the pool table. P.B. was
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sitting watching the hockey game. (Later, when rec centre
ended I noticed that P.B. had a radio on his belt.)
• In the past 14 years while watching the group threes in
action running a yard or a rec centre they have always
assigned radios and positions to the first staff to arrive at
the activity (before the patients arrive. This appears to be
the logical thing to do. Why didn't he assign M.A. or J.H. who
were there before me?
• B.R. did not assign anyone else to the back of the rec centre
right away. He went around and talked to several staff
(most likely talking about what had happened between the
two of us). I was very upset and expressed my feelings to
J.H. for about 20 minutes. B.R. was at least 50 to 75 feet
away from me at this time and heard nothing I said to J.H.
Maybe others close by heard something and repeated it but
that then becomes hearsay. I did not talk to anyone else
directly except maybe D.B. who stood beside us for a
minute. He thought it was "funny" and was "goading" me
about the incident while I was playing pool. I told J.H. that
my skills and abilities as a psychiatric nurse are better
utilized with the patients, interacting with them and being
accessible rather than holding a radio at the back of the rec
centre away from everyone. (Incidentally, M.A. was playing
ping-pong next to me so I was able to keep an eye on him
especially after the incident at the yard.)
• The allocation of the radio is part of the procedure for
securing the location before patients arrive. :
• Part of the practice to which I was accustomed was that the
radio is assigned to the first staff members who arrives at
the Rec Centre. When I came in, there were at least three
staff members already in the Rec Centre, including J.H., M.A.,
and P.B.
• I was upset and stressed out as a result of the day's events.
Consequently my reaction to being given a direction by a
group 1 and by the unexpected procedure with the radio
was excessive and unprofessional. I allowed myself to
display anger and I used intemperate, inappropriate
language in relation in B.R.
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• Another staff member, D.B. was joking about the way I
responded to B.R's direction. In the circumstances, I found
the comments very annoying and they exacerbated my
frustration over the events of the day.
• When Rec was "called" I went and sat in a seat on the other
side to where the shuffleboard is. D.B. was on the
shuffleboard side sitting down. He started badgering me
and laughing. He said, "This is all about you failing to follow
direction". (A term we frequently use with patients). I told
him that he had better stop talking about it because there
were some people sitting around him who were involved in
the conversation (with B.R.) and he better keep quiet.
• Lo and behold who should sit next to me but Patient P. He
said "What's bugging you old man?" "What'are you so pissed
off about gramps?" (He kept this abuse up until I spoke
harshly to him at the end of rec.) I stood up and moved to
the billiard table. B.R. was in front of me about 10 feet away
and about to call the wards. Patient P was to my left about S.
feet away continuing "What's wrong gramps eh pops.
What's wrong with you old man." I reacted to the patient
and told him harshly in very strong firm language "Shut
your XXXXXXX mouth or I will seclude you right away and I
mean immediately".
• Again, I was not supported or backed up by any other staff
intervening with this patient's behavior toward me.
• It is uncharacteristic of me to swear. I try never to use
profanity at any time. However, profanity at Oak Ridge is a
way of life for most patients and staff and it is used all day
long. You would be hard pressed to find anyone at Oak
Ridge that has not used profanity with a patient at one time
or another during their tenure. However, that is no excuse
for my use of it in communication with this patient.
• I acknowledged the inappropriateness of my conduct with
respect to B.R. and the patient and apologized for it, on four
occasions; in an email sent from my home on December 20,
2010; in my Investigation Statement, submitted during my
investigation interview on December 23, 2010; in a meeting
with management on January 4, 2011; and in the step 2
grievance meeting on April 12, 2011.
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• When asked during the investigation meeting whether
swearing at the patient and threatening to seclude him
constituted patient abuse, I answered "no". The context of
my answer was that being confronted with the allegations
and asked whether my conduct was abuse, I was only given
the choice of answering "yes" or "no", without an
explanation or elaboration.
As is apparent from the above, the Employer undertook an
investigation. During the course of that process a number of staff
members who were in attendance on December 17, 2010 were
interviewed. The parties provided a "synopsis" of those interviews. It
would be useful to set out some of that synopsis. Regarding the incident
with B.R., the synopsis stated, in part:
• M. A. was sitting in a chair at the front of the Rec. centre and heard
Brian Lagerquist say when he came into the Rec centre after his
encounter with B.R., "Guess what that fucking Att.1 asked me to
do, he asked me to hold the radio." Brian said this as he was
walking towards J.H. Brian said "how dare he, I'm an RN"
repeating "I just told him I was playing pool". M.A. said that she
heard Brian rant about this for 10 minutes while playing pool
with J.H. and she could not hear all of it while he was playing pool.
M.A. stated that during the whole Rec centre fsic} Brian looked
angry, and she felt that everybody would have heard him because
he .was so loud and that this was "demeaning for B.R.". M.A. stated
that B.R. just sat there and took it, he was very professional. M.A.
stated that D.B. told him "you just need to calm down", and "they
are just doing their job, things are changing, you just need to go
with what's going on". M.A. said talking to D.B. did not calm Brian
down.
• P.W. was playing ping-pong with a patient from Ward 06 on the
next table to Brian Lagerquist and J.H. P.W could see Brian was
angry, and heard him say to Jack "if he wants to make an issue of
it, we will go that way". P.W. stated Brian said this 3 times at least.
P.W. did not feel that B.R. knew throughout the Rec Centre that
Brian was mad at him because B.R. spoke to P.W. about it when
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everyone left. B.R. told P.W. that he heard Brian say "Fuck off' to
him when he was leaving the Rec centre......
• J.H. was playing pool with Brian Lagerquist. J.H. stated that he did
not hear the interaction between B.R. and Brian Lagerquist. J.H.
stated that Brian was very angry and J.H. felt that "Brian didn't
feel he should have to take direction from an Att.1". J.H. stated that
Brian was just pissed off that he had to take direction from
someone with "less qualifications" than him. J.H. stated that "we
are all going to have a hard time". J.H. stated that he talked to
Brian about it for a few minutes, and then played pool. J.H. stated
that D.B. tried to "lighten the moment" by joking with Brian but it
didn't seem to help. J.H. stated that "Brian was just having a bad
night." J.H. stated that "he has never seen Brian like that before."
• D.B. was sitting at the front of the Recreation centre. D.B. stated
that Brian Lagerquist and J.H. were playing pool. D.B. stated that
Brian said to him, "I am an RN and he is a POSW, telling us what to
do?" D.B. stated that he told Brian "you have to be able to take
direction". D.B. said that he said this twice. D.B. stated that about
40 minutes later Brian came and sat down with him and he was
still angry, face red and arms crossed. D.B. went over to Brian and
apologized to Brian because he was just joking with him earlier
and he didn't mean anything by it. D.B. said that Brian remained
angry and he could tell this by the tone of his voice. D.B. stated
that he was still Brian to relax even when they were leaving the
Rec centre.
• B.R. was at the grill gate of the Recreation centre. He stated that
he asked Brian Lagerquist to take a radio, and Brian said no he
wanted to play pool. B.R. said that was fine and handed the radio
to another staff. B.R. stated that Brian proceeded into the Rec
Centre and said something but he did not hear it. B.R. stated that
M.A. told him later that Brian had told him to "Fuck off'. B.R.
stated that throughout the hour Brian was just staring at him. B.R.
did not feel they had a history of anything. B.R. stated that Brian
stared at him, smacked his hand on the pool table and was
verbally and physically angry, and this continued the full hour.
B.R. was told that J.H. tried to get Brian to concentrate on the
game, to let it go. B.R. stated that he spoke with P.W. at the end of
the Rec centre, and that P.W. told him that Brian had been going
on about him the past hour.
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Regarding the incident with Patient P, the synopsis revealed the
following, in part:
• M.A. stated that at the end of Rec Centre, Brian Lagerquist
was standing in front of the pool table and Patient P said
"What going on?" then laughed. M.A. stated that Brian told
the patient "Shut your fucking mouth or I will seclude you
and I can make it happen". M.A. stated that the patient just
laughed. She said that Brian was really angry.
• D.B. stated that Patient P came over and wanted to know
"what was going on?" D.B. said that he had told the patient it
was between staff so butt out and he thought Brian said the
same. D.B. stated that Brian was loud and D.B. told Brian to
keep it down. D.B. said Patient P moved away. D.B. stated
that there was too much noise to really hear what was said.
D.B. also said that Brian told the patient to "shut up or he
was going to seclude him."
• B.R. stated that at 2100 he locked up the equipment and
Brian Lagerquist was talking to D.B. at the front. B.R. stated
that Brian told Patient P to "shut his fucking mouth or he
would be fucking secluded". B.R. said the patient told him to
go ahead and seclude him. B.R. stated that Brian's body
language and tone were past angry. B.R. said it was like a
temper tantrum.
The final relevant comment from the synopsis was the following
comment regarding a meeting the grievor, his manager and his Union
Representative had later the same evening. It said:
• D.C., was a union representative for Brian Lagerquist after
the Rec centre. They met with K.S. (Shift Nurse Manager) in
an office on Ward 06 at approximately 2300 that evening.
D.C. stated that Brian was very inappropriate, loud and
obnoxious, abrasive in his language towards the incident
during the meeting and D.C. felt that everyone on Ward 06
would have heard Brian because he was so loud. D.C. stated
that Brian was not directing any swearing towards K.S., "he
just felt he was. over and above this", "would not take
15
direction from the individual". D.C. stated that Brian was
standing, leaning towards K.S., and pointing fingers towards
her. DC. Stated that K.W. was sitting and writing and she did
not seem to be taken aback by Brian. D.C. stated that K.S. did
tell Brian that she would forward this information on to Dr.
B.J,
EMPLOYER SUBMISSIONS
Mr. Green, for the Employer began by stating that the parties are agreed
that the conduct at issue was worthy of discipline. The only real issue
for this Board to determine is whether the quantum of discipline
imposed by the Employer is appropriate in these circumstances. The
Employer urged that the five-day and the ten-day suspensions were
reasonable and therefore should not be reduced by this Board.
The Employer urged the Board to remember the environment in which
the grievor's highly inappropriate actions took place. The workplace is a
high security forensic unit in a mental health facility where the patients
are at their most vulnerable. According to the agreed facts, the incidents
took place in the Structured Intervention Program where the patient
population consists of low functioning or developmentally delayed
individuals with long term behavioural issues. The patient involved had
a schizophrenic disorder. It is against this backdrop that the grievor's
conduct must be considered. He engaged in a course of conduct in two
separate incidents that was egregious but made even worse because
patients were either involved or witnessed his behavior,
Mr. Green suggested that generally speaking, arbitrators have held
health care providers to a higher standard of conduct. This case should
be no exception. There is no reason for this Board to deviate from that
now well established arbitral view.
The Employer noted that the grievor was involved in two incidents. The
first, his altercation with the Group 1 Attendant was totally
16
unacceptable. He was asked to take the radio and attend at a specified
area within the Rec Centre. He refused both requests and in doing so he
was angry, verbally abusive and aggressive over a sustained period of
time. This was not a momentary outburst. By all accounts his improper
behaviour continued for almost an hour and was witnessed by
numerous patients. Rather than do what he was requested to do by a
person with the authority to make the request, he entered the Rec
Centre and played pool with a co-worker when he should have been
interacting with patients. Some of the grievor's co-workers attempted to
settle him down at the time but he continued with his tirade unabated.
It is evident that the grievor simply did not want a subordinate telling
him what to do. This conduct merits a strong disciplinary message to be
sent and that is accomplished with the five-day suspension meted out
by the Employer.
The Employer conceded that the grievor apologized for his behaviour. It
was submitted that while often an apology will be taken into account
when the actions are the result of a momentary lapse in judgment, it is
not sufficient when dealing with aggressive abusive behaviour that took
place over the course of an hour.
Mr. Green said that it is not often seen that one is disciplined for two
separate incidents that occurred on the same day. However, these two
incidents were separate and the second was worse than the first
because it involved patient abuse. The grievor admitted that he told the
patient to "shut the fuck up". He also agreed that he threatened to
seclude him if he did not be quiet. Although he was said that he was
sorry later, he also attempted to justify his actions by saying that he was
stressed by Patient P's abuse. That attempt at rationalization indicates
that he has not yet accepted that his actions were totally unacceptable.
Indeed, his view of whether his threat and profane language toward the
patient was not "patient abuse" has changed over time. While there was
no actual restraint there was the threat of restraint. To make such a
threat is a breach of his professional standards. The Employer
17
submitted that there can be no doubt that this was abuse and probably
sufficient for termination.
The Employer asserted that this Board should consider- the grievor's
assertion of feeling stressed due to abusive conduct at the hands of
Patient P together with the agreed facts stating that on this evening,
Patient P's behaviour toward the grievor was consistent with his
behaviour generally. Even if the grievor had been harassed, there simply
is no instance when the profanity and threat would have been
acceptable behaviour for a regulated health care provider. He could
have and should have utilized his therapeutic tools to de-escalate the
situation, not make it worse.
The Hospital stated that both it and the College of Nurses of Ontario
have standards and policies that were seriously violated by the grievor
on December 17, 2010. Those policies were reviewed with the Board
and make very clear that the grievor engaged in patient abuse. The
breaches were significant and certainly deserve the levels of discipline
meted out by the Employer.
In reviewing the case law the Employer urged this Board not to "tinker"
with the level of discipline. Even if what the Employer decided was the
right level of discipline is not what this Board might have done, if it is
found to be reasonable in the circumstances it should be left untouched.
The Employer relied upon Re Rolland Inc and Canadian Paperworkers
Union Local 301 (1983), 12 L.A.C. (3d) 391 (MacDowell); Re Toronto
Rehabilitation Institute and CUPS Local 1156 (2010), 193 L.A.C. (4111) 49
(Knopf); Re Sty Joseph's Health Centre, London & CNA [1993] O.L.A.A. No
1047 (Picher); Re Kennedy Lodge Nursing Home and SEW Local 204
(1991), 18 L.A.C. (4111) 38 (Davis); Re Shaver Hospital & DNA [1998]
O.L.A.A. No. 696 (Roberts); Re Alberta (Provincial Health Authority) and
Alberta Union of Provincial Employees [2005] 83 C.L.A.S. 136
(Tettensor); Re Unionville Home Society and CUPE Local 3744 (2000), 90
L.A.C. (4111) 299 (Davie).
18
Regarding the final matter of whether the scheduling restrictions
imposed upon the grievor were appropriate it was the Employer's
position that they were as a direct result of its concern for a monitoring
of Mr. Lagerquist given that he abused a patient. It was determined that
40% his first 100 hours had to be monitored and after that threshold
was met, twenty per cent of his work was to be monitored. What this
meant for the grievor was that he had to work during the day on a
weekday that was not a Paid Holiday. It would have been irresponsible
for this Employer to merely let the grievor work during time periods
when he could not be monitored. While it is true that it took him some
time to achieve the 100 hours, that is largely because of his own
scheduling restrictions due to his full time position elsewhere. The
decision to impose this monitoring was appropriate in the circumstance
and this Board should so find.
UNION SUBMISSIONS
Mr. Bohuslawsky began by noting that the Union did not object to the
letter of counsel that was given to the grievor regarding playing pool
with a co-worker on December 17, 2010 being put before this Board
notwithstanding no agreement to do so. However, the Board should
know that a similar letter was ' not issued to the other co-worker.
Further, the Union does not agree that two staff playing pool together is
improper.
The Union wanted to remind the Board that many of the comments
found in the Synopsis are views held and not statements made about
what was actually seen or heard. Little weight should be given to this
document particularly when it is considered that the notes are not
verbatim but appear to be summary. To the extent that any issues or
accusations are raised therein they should be disregarded if they were
not considered in the actual letters of discipline.
19
The task for this Board to consider is the proportionality of the
discipline imposed according to the Union. Discipline would be found to
be proportional if it takes into account not only aggravating factors but
also mitigating factors. The Employer gave little or no weight to several
mitigating factors when it imposed the two disciplines in rapid-fire
succession.
The first and most compelling mitigating factor for this Board to
consider is the abuse suffered by the grievor on December 17, 2010 at
the hands of Patient P. There were several encounters and the sum of
these left the grievor shaken and upset. There was a cumulative effect
that must be factored into the determination as to whether the two
incidents deserve a five and a ten-day suspension. It is clear that the
Employer did not do so. A review of the suspension letter itself reveals
that the Employer considered Patient P's treatment of the grievor
inappropriate but "harmless". This trivialization of the sustained course
of harassment during this shift makes apparent the Employer's
complete disregard for grievor. This Employer has strong harassment
policies that state employees should be free from offensive remarks and
threats or violence. The patient at issue was capable of violence and had
engaged in an altercation with another patient that same day. That fact
was known to the Employer yet it seemingly did not take these into
account when determining what discipline to impose. Certainly it ought
not to have considered the abuse as harmless. The Employer should
have taken the patient's behaviour into account in its deliberations.
The Union submitted that the grievor was provoked and provocation
such as this is usually taken into account in determining the level of
discipline. While it was acknowledged that a health care setting might
have considerations different from other shop floors, provocation must
still be given some weight as a mitigating factor. The Employer failed to
fairly assess the grievor's misconduct in the context of all the facts.
20
It was urged by the Union that patient abuse covers a wide range of
offences from deliberate physical abuse at one end to carelessness
causing harm to another. The grievor's misconduct is at the less serious
end of the disciplinary spectrum. The Employer's assertion that the
grievor just lashed out at the patient is inconsistent with the grievor's
will -say statement. He had made repeated attempts at other
interventions before the incident. A ten-day suspension is simply too
severe in these circumstances.
Regarding the five-day suspension the Union reminded the Board that
the grievor was unaware of the operational change made regarding the
role of the PSOW. This fact was given little weight by the Employer in its
meting of out discipline. Yet shortly after this incident the Employer
issued a memorandum to all staff regarding its ineffectiveness at
communicating this operational change.
A further mitigating factor is that the grievor provided a spontaneous
and early apology for his misconduct, according to the Union. He
repeatedly stated his remorse over the following months. While the
Employer has attempted to undercut the genuineness of these
apologies, the Board should not give this factor such short shrift. At the
meeting held to discuss the allegations the grievor was not allowed to
provide context for the situation. This inability to fully discuss the
matter was not a denial of his misconduct or a failure to recognize the
gravity of the matter.
Mr. Bohuslawsky stated further mitigating factors are the grievor's
period of time working at Oak Ridge and his unblemished disciplinary
record. He performance appraisals were good. These factors do not
seem to have been considered by the Employer.
Generally speaking, the Union noted, discipline is to be progressive. And
yet the two letters imposing a five-day suspension and a ten-day
suspension were issued on the same day. Fundamental to the concept of
21
progressive discipline is that it is supposed to provide the employee
with an opportunity to correct their behaviour. When escalating
discipline is meted out in quick succession - as in the case at hand - that
purpose is defeated. The employer should not be allowed to ratchet up
the level of discipline on the same day as it might be entitled to do with
the passage of time. There is no suggestion that this is a case of "double
jeopardy" or "double discipline". The Employer is entitled to attach
different penalties for different misconduct even if the factual matrix is
related. However, in this case the Employer has separated out, from an
unbroken chain of events, different aspects of disciplinary misconduct
and used them as building blocks for jumping from a five-day to a ten-
day suspension. This has lead to an unfair and disproportional result.
Regarding the scheduling restrictions, the Union noted that the standard
of review in this instance should be just cause. When that standard is
applied there can be no questions that the imposition of these
restrictions was excessive and disproportionate. A second standard to
apply is whether a management decision was arbitrary, discriminatory
or in bad faith. The Employer has the right to determine schedules in
accordance with the management's rights provisions of the collective
agreement. However, those must not be arbitrary, discriminatory or in
bad faith.
The Union submitted that the stated purpose for the restrictions was to
facilitate monitoring for improvement, which could only be done on
weekdays to allow his manager to oversee his work. According to the
grievor's will -say statement he was able to self -schedule himself within
the prescribed hours and to complete the 40% restriction without his
manager being on the premises. There is no evidence to contradict that
assertion. Accordingly there was no rational connection between the
purpose of the restrictions and the restrictions themselves. That must
be seen to be arbitrary decision malting. It was capricious and without
reasons to impose scheduling restrictions to facilitate monitoring by the
22
manager without taking any steps to follow up and ensure that
managerial monitoring was actually taking place.
The Union referred to the grievor's comments in his will -say statement
that he attempted to confirm with the Employer that he thought he had
finished the 40%. He got no managerial reply and that failure to respond
underscores the arbitrariness of the restrictions. The Employer also
stated in the letter of discipline that there was to be a review after the
100 hour point. This was never done. Mr. Lagerquist completed the
stated restrictions on November 26, 2011 but they were never lifted
before he retired. The timing of a review had to be linked to the purpose
of the restrictions in the first instance, that is, monitoring his
performance for improvement. By ignoring any consideration in this
regard the employer exercised its discretion in an arbitrary or
unreasonable manner. The Union requested an order invalidating the
scheduling restrictions as being without just cause or as being an
arbitrary discretion of management's rights. The grievor should be fully
compensated for these real and substantive losses.
The Union relied upon Re Providence Care and OPSEU (2009), 189 L.A.C.
(401) 385 (R. Brown); Re Citadel Halifax Hotel and Bakery, Confectionary,
Tobacco Workers and Grain Millers International Union Local 446 [2009]
N.S.L.A.A. No. 5 (Richardson); Re Brampton Hydro Electric Commission
and CAW Local 1285 ] 1993] 62 C.L.A.S. 402 (Kaufman); Re Greater Essex
County District School Board and Elementary Teachers' Federation of
Ontario (2011), 209 L.A.C. (4{h) 119 (Tacon); and Re Saskatchewan
Association of Health Organizations and CUPE Local 4777 (2013), 230
L.A.C. (Vi) 203 (Hood).
EMPLOYER REPLY SUBMISSIONS
The Employer urged that this Board cannot find that a mental health
patient in a forensic unit who is acting consistently with his illness has
somehow provoked any type of illegal .seclusion, The agreed facts state
23
that the patient was acting consistent with his behaviour generally. This
was not provocation. This suggestion underpins the Employer's view
that the grievor still "does not get it". Even if there was provocation -
and that is strenuously not conceded - the comments made by the
grievor were highly inappropriate and probably worthy of a
termination. Rather than discharge the grievor the Employer elected to
impose a significant suspension and this Board should find that
reasonable in these circumstances. This is not activity that runs at the
lower end of the disciplinary spectrum contrary to the Union's view.
Regarding the five-day suspension, the Union urged that much
consideration should be given to the fact that the grievor did, not know
about the operational change. The Employer said if that was the case, it
would have allowed for a momentary flare up and not the sustained
period of loud and belittling behaviour Mr. Lagerquist engaged in.
Contrary to the Union's assertions, the Employer did consider the
grievor's apology. That fact is apparent by reading the letters of
discipline. The discipline may well have been more severe in the
absence of some contrition, according to the Employer.
The Employer responded to the Union's suggestion that the discipline
was not progressive. The five-day suspension in this case was not a
"building block" that leads to a finding that a ten-day suspension for the
patient abuse was appropriate. Each incident was considered separately
and treated accordingly. Each level of discipline was decided by the
Employer separately and was appropriate and proportional in the
circumstances.
Mr. Green noted that the Union never asserted that there should have
been no scheduling restrictions imposed. It took issue with the quantum
but not the imposition. This Board will have to determine if those
restrictions were too onerous but the letter of discipline was clear about
the purpose of restrictions. There was no uncertainty as to what Che
24
restrictions applied to and therefore the fact that he got no reply is
insignificant. If a response was important to the grievor he could have
sought an answer. He did not. The grievor's letter was sent to the CEO. If
she ever received the letter it is not surprising that she did not reply. In
any event, when considering the restrictions it is imperative that the
Board consider the reasons they were imposed and then it will be
determined that there was just cause - the appropriate standard of
review - for the restrictions.
DECISION
The parties in this matter have agreed that the incidents in which the
grievor engaged on December 17, 2010 are deserving of discipline. The
narrow dispute is the appropriate quantum. There are very few factual
disputes and that has allowed these parties to Iitigate this grievance in a
highly efficient manner.
In its submission the Employer urged this Board to be influenced by the
principles set out by Arbitrator MacDowell in Re Rolland Inc. (supra). In
particular attention was drawn to paragraph 30 which stated:
In all of the circumstances, we are not inclined to interfere with
the penalty which the employer has chosen. As a general rule, we
do not believe that it is desirable for a board of arbitration to
attempt to "fine tune" a managerial decision respecting discipline
which is not in itself unreasonable or excessive. To do otherwise
would merely encourage costly litigation as grievors, hoping for
perhaps minor gains (whatever the over-all cost) press their
bargaining agents to carry every discipline matter forward to
arbitration. Likewise, employers might be encouraged to impose
more extreme sanctions at the outset, on the expectation that an
arbitrator inclined to tinker might be disposed to "split the
difference" and substitute something within the general realm
that management might otherwise have chosen in the first
instance. It is one thing for a union and employer, in the grievor
procedure, to haggle about the penalty, "saw it off', "split the
difference", or bargain a concession in anticipation of future
25
considerations. It is quite another for an arbitrator to hold, on the
basis of objective evidence and reasoned consideration, that an
employer's disciplinary response is unwarranted and should be
modified. This is not to say that arbitrators should shrink from
modifying a penalty which is clearly inappropriate in the
circumstances or excessive when measured against the norms of
the industrial community. But this requires more than a "gut
feeling" or vague impression that the arbitrator, standing in the
shoes of management, might have done something somewhat
different - not the least because the litigation process provides, at
best only an imperfect appreciation of the enterprise as a whole
and the human and business relationships which must somehow
be fitted into a legal mold.
Like many others before me, I agree with that sentiment. Real labour
relations damage might to done if arbitrators took it upon themselves to
"shave off' a small portion of reasonably imposed discipline even if that
reduced penalty represents the level of discipline they would have
imposed if the decision was initially theirs to make.
The other major difference between the parties in their submissions
was regarding progressive discipline. The Union contended that the
purpose of progressive discipline is to allow an individual an
opportunity to contemplate and improve their behaviour and by
imposing two rapid-fire suspensions, the grievor was unjustly
disciplined. The Employer suggested that there is a wealth of arbitral
jurisprudence supporting its view that there are instances where, as
stated by Arbitrator Knopf in Re Toronto Rehabilitation Institute (supra)
at page 6, "circumstances dictate that jumping of some of the
"progressive steps or even discharge when misconduct is very serious
and/or a significant message of deterrence is necessary," In this regard I
must again agree with the Employer's view, While progressive
discipline is the normal path that is followed by employers there are
instances when it simply does not apply. In my view, this is one of those
cases when it does not apply.
26
The Union did not assert that it was wrong of the Employer to impose
two different disciplines for the two incidents. It was merely urged that
the levels imposed were heavy handed. Regarding both the five-day
suspension and the ten-day suspension, I disagree.
The grievor is a registered nurse and while no one expects perfection
from regulated health care professionals, there is an expectation of a
higher standard of care. In Re Saskatchewan Association of Health
Organizations (supra), the Board was considering whether physical
force and verbal threats were sufficient grounds for discharge,
Arbitrator Hood stated at Para 70:
Arbitrators have held employees in the health care field to a
higher standard of conduct than those in other occupational fields,
given health care workers' interaction with and treatment of
patients or residents. This is especially true when the patient or
resident is helpless and dependent on the caregiver.
In Re Baptist Housing Society (Grandview Towers) and Hospital
Employees -'Union, Local 180 (1982), b L.A.C. (3d) 430 (Greyell) the
board chaired by arbitrator Greyell described the standard of
conduct expected of health care employees this way at paras 24-
25:
We find that the grievors have given just and reasonable
cause for some form of discipline. The question then is
whether discharge was excessive in the circumstances. To
answer this question we must assess whether the
employer's response was a reasonable one. A much higher
standard of conduct is expected from employees in the
health care field than other occupational fields. In this
industry arbitrators are required to have regard not only to
the interests of the grievor and of the employer but almost
must have regard to the public interest. Both employer and
employee are reposed with a public trust for which they are
held accountable.
The public trust is onerous. In broad terms it is a charge of
responsibility for the physical and emotional comfort of a
member of our society who is unable to live independently.
The institution and no less its employees, in addition to
27
regular duties assume a role which may best be described
as similar to that of a "surrogate" family. This is particularly
so in a facility such as Grandview which strives to be a
"home" for elderly residents. Because of the public trust
reposed in him, 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.
The grievor received a five-day suspension for his response to a bona
fide operational request by an Attendant 1 to take the radio and take a
particular position in the Rec Centre. His immediate response was - to
understate it - rude, profane and disrespectful. His treatment of B.R. was
sustained for about an hour and undertaken in the view of other staff
and patients. Even accepting that the grievor was surprised by the new
regimen of having Attendants assign certain tasks and accepting that the
grievor was stressed from his earlier encounter with Patient P., this
behaviour was completely unacceptable. If his response had been
momentary it might well have been appropriate to reduce the five-day
suspension. But that is not the case and in my view, the five-day
suspension imposed was reasonable in the circumstances.
The ten-day suspension was imposed for conduct that - in the
Employer's view - constituted patient abuse. The grievor conceded that
his interaction with Patient P was worthy of some level of discipline but
did not concede that it was patient abuse.
In my view, there is not a scintilla of doubt that the grievor's behaviour
toward Patient P on December 17, 2010 was patient abuse. According to
the Professional Standards of the College of Nurses (2002), "each nurse
establishes and maintains respectful, collaborative, therapeutic and
professional relationships." It goes on to explain that, "the client's needs
are the focus of the relationship, which is based on trust, respect,
intimacy and the appropriate use of power" (emphasis mine). The
W.,
grievor utilized vulgar language and threatened to seclude the patient if
he did not stop bothering him. The inappropriate threat of seclusion by
one who has the power to carry out the threat can only be viewed as
abuse.
Again, even accepting that the grievor felt harassed by this individual,
his behaviour toward Patient P on December 17, 2010 was totally
intolerable. It was acknowledged that Patient P's behavior that day was
in accord with his norm. Accordingly, it ought not to have surprised the
grievor. While I appreciate that some of Patient P's lashing out was
directed at the grievor on this day, it does not -- in any way -- mitigate
the grievor's actions. This is not a case where the grievor's abusive
behaviour was an instantaneous reaction where arguably he acted
without taking the time to think the situation through. Nurses are
expected to maintain their professional decorum even under duress.
There are no instances when it is acceptable to abuse a patient because
the patient is abusing the professional staff. It is apparent from the
Professional Standards that nurses have a "wide range of
communication and interpersonal skills" to utilize in their professional
undertakings. They are expected to demonstrate "respect and empathy
for, or interest in clients".
The Union relied upon two decisions in the health sector where grievors
found to have abused clients had their discipline reduced when
mitigating factors were taken into account. It was urged that this Board
take certain mitigating factors into account in this matter and similarly
reduce the discipline imposed. It is important to note that in both of the
cases provided by the Union the grievors were discharged. One was
returned to work with a ten-day suspension substituted while the other
was reinstated with a suspension lasting until the date of the award.
While it cannot be said that a ten-day suspension is insignificant, it is a
far cry from a discharge. In my view, the ten-day suspension in these
circumstances was not unreasonable and therefore I decline to reduce
the level.
29
In addition to the suspensions the Employer imposed two further
directives. The first was that the grievor contact and receive assistance
from the Employee Assistance Program regarding "apparent difficulties
controlling your anger in the workplace." According to the
uncontradicted statement of the grievor, he complied with this request
quickly and efficiently.
The second directive was regarding certain scheduling restrictions to
allow for "monitoring for improvement". It is this issue, which is the
final matter for this Board to consider. It was not in dispute that because
the grievor was a casual employee who normally did not work during
the day Monday to Friday, this restriction was not insignificant. It was
mandated that 40 percent of the work that he undertook - until he had
accumulated 100 hours - was to be "between the hours of 07:00 and
19:00 on non -stat weekday days." Once the figure of 100 hours was
reached, he was then to work 20 percent of his time during these hours
"until further review". The grievor noted in his will -say statement the
effect of this restriction. He noted:
• It took me most of 2011 to complete the mandatory 100
hours when the "40 percent" restriction was in place.
According to my records, I completed the "40 percent"
restriction on November 26, 2011.
• I sent a fax to Waypoint on December 12, 2011 requesting
written confirmation that the 100 hours under the "40
percent" restriction had been completed. I did not receive a
response to that request.
• The ten-day suspension letter (revised) from January 20,
2011 said that the "20 percent" restriction was to remain in
place "until further notice". However, that restriction was
never lifted prior to my resignation from Waypoint on July
18, 2013. At no point did the employer inform me how
many hours still had to be worked under either the "40
percent" or the "20 percent" restriction.
• Because the restrictions required me to work between 7:00
a.m. and 7:00 p.m on non -statutory holiday weekdays, I was
30
I
limited in my ability to earn shift premiums for evenings,
nights and weekends.
• In order to meet the "40 percent" and "20 percent"
restrictions, I had to use vacation time from my full-time
job.
• On my recollection, there were perhaps five occasions when
staff in the scheduling office, being unaware of my
scheduling restrictions called me and invited me to work
shifts that I was unable to accept due to the restrictions.
• The gross earnings ,reported on my T4 slip for the years
2006 through 2011 are as follows:
2006 $32,720.21
2007 $37,367.34
2008 $26,860.74
2009 $32,373.28
2010 $30,556.00
2011 $10,289.11
• To the end of November 2012, based on pay stubs and my
own records, my gross earnings for the year were
approximately $26,616.00.
It is apparent from the above that the scheduling restrictions imposed
had a significant financial impact on the grievor. The suspensions
themselves would have reduced the grievor's annual earnings by one
sixth -- given that the suspensions disallowed him from working for a
period in excess of two months. Using 2010 as a base the suspensions
would have reduced his annual salary by approximately $5,000. It is
therefore reasonable to assume that the imposing of the scheduling
restrictions "cost" the grievor approximately $15,000, during the year of
2011.
The Employer took the view that it was entitled to ensure that there was
improvement in the grievor's behaviour given his egregious actions
during the evening of December 17, 2010. 1 understand that view.
However, I am not convinced that - given the impact of the restrictions
- the period of the scheduling restrictions was with just cause. The
31
Employer knew or ought to have known that these restrictions would
significantly impact the grievor financially. He had been working as a
casual during "off hours" for many years. Further, it was known that the
grievor had full time employment elsewhere.
I am of the view that the scheduling restrictions were excessive in these
circumstances. In arriving at this determination I have taken into
account, the two suspensions already imposed, the requirement for and
prompt compliance with the anger management work with EAP, the
grievor's past performance, his contrition made known to the Employer
shortly after the offending events and his clean disciplinary record.
I direct the parties to attempt to resolve the appropriate remedy in this
regard and in the event they are unable to do so, I remain seized.
Dated in Toronto, this 15t day of October, 2014.
Felicity D. Briggs
32