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HomeMy WebLinkAboutZaki 94-03-25 I 'I I .. ,. . I ~ I IN THE MATTER OF AN ARBITRATION BETWEEN: I Ottawa General Hospital (Employer) I - and - ontario Public Service Employees Union, Local 242 I (Union) I In the Matter of a Five Day Suspension of Mohd Zaki I I Arbitrator: Da vid H. Kates, Sole Arbi tra tor I Appearing for the Employer: Lynn H. Harnden Appearing for the Union: Nelson Roland I Heard at o:tt~wa, Ontario, on January 25, 26; September 13, 14, 15, I 19, 20, 1~'93', February 23, 24, 25, 1994. I I ~ I I' I I I I to I I I Decision I. The grievor, Mr. M. Zaki, is employed by the hospital as a Registered Respiratory Therapist. On February 6, 1992, Mr. Zaki I was assessed a five (5) day suspension with respect to two I incidents of professional misconduct in the performance of his duties. Mr. Zaki has challenged the propriety of the employer's I allegations and has put the hospital to the strict proof thereof. At the outpet, it is significant to observe that upon completion of I the hospital's case the trade union elected to call no evidence. I In short, the Board was deprived of the grievor's versions of both incidents of alleged misconduct. The letter assessing the five day I suspension reads as follows: February 6, 1992 I Mr. Mohd Zaki Registered Respiratory Therapist , Cardiopulmonary Services Mr. Zaki: I The following is in reference to our meeting of January 29, 1992 during which we discussed the incident report and the complaint I received concerning the performance of your duties on I January 17, 1992. Our investigation concluded that during the administration of a prescribed ventolin treatment on Baby L.P. you increased the I pressure of the ventilator from the prescribed limit of 23 to 29. Also, during the reintubation of Baby R. you manually I ventilated the baby with a pressure that exceeded the prescribed pressure limit of 10/3. On numerous occasions, you were told by nursing staff to decrease the pressure of the ventilation. I Instead, you proceeded to increase the pressure limit on the manometer so as to decrease the noise level emanating from the machine. I Given the potentially serious consequences of your actions on the lives of these premature babies and your continued lack of professionalism in discharging your duties, we must now issue you - I . ~ 1- 2 I a five day disciplinary suspension without pay, which will take effect on February 11, 12, 13, 17 and 18, 1992. Please note that I any further incident will result in your immediate dismissal without further notice. I Sincerely, "Denise Blanchette" Assistant Manager I Cardiopulmonary Services Prior to detailing the events that resulted in the hospital's I decision to discipline it may serve a useful purpose to set out my views on some of the issues that are relevant to both incidents. I Firstly, I agree fully with the employer's position and the I arbitral jutisprudence in support thereof indicating that allied health professionals who hold appropriate qualifications and I training in the treatment and care of patients in hospitals and other related environments hold a higher standard of care in I providing or extending professional services than would be expected I of employees who are lacking similar skills and qualifications. In that context the stand.ard of care expected of the Respiratory I Therapist is appropriately comparable with or is akin to the standard of care expected of a Registered Nurse with respect to I their duty to attend to the needs of their patients in an I appropriately professional manner. I did not hear any contrary view or challenge from the trade union's cbunsel with respect to I the appropriate standard of care expected of health professionals generally and Registered Respiratory Therapists particularly in I carrying out their professional duties. I Secondly, because the consequences of any breach of the standard of with respect to the health professional's care , - I- t I- I 3 continued job security may be dramatic, the onus of proof in I justifying disciplinary recourse must meet the clear and cogent evidentiary burden of proof that is well established in the , arbitral jurisprudence. The employer's counsel did not appear to I question the applicability of that evidentiary standard with respect to the two incidents of wrongdoing for which Mr. Zaki was I disciplined in this case. Thirdly, it was pointed out that the two incidents of I professional misconduct for which the employer imposed discipline I constituted negligent if not reckless misconduct in the grievor's treatment of two infants in the hospital's Neo-Natal Intensive Care I Unit. That is to say in his administering the tlmonometers" on the ventilator machines that control the flow of oxygen to the infants I Mr. Zaki allowed the pressure to exceed the prescribed levels I mandated by the attending physicians. I was advised of the following technical informa tion with I respect to the professional responsibilities of the Registered Respiratory Therapist in operating the equipment that controls the I flow of oxygen to a patient while under his care. Firstly, and I most significantly, no one other than the attending physician holds the authority to prescribe any alteration, upwards or do~rnwards, in I. the pressure levels controlling the flow of oxygen from the ventilator to the patient In that regard the prescribed pressure I levels are charted in accordance with the physician's instructions. I Moreover, only the Respiratory Therapist has authority to set the pressure gauge or to change the pressure on the monqmeter within I - I I " 1- . 4 I the prescribed levels. And, finally, while the Respiratory I Therapist has the care and control of the monometer he is responsible for both monitoring and ensuring that the prescribed I pressure levels are maintained with respect to the flow of oxygen to the patient. I To this end the ventilators are equipped with several safety I devices which are designed to alert attending health care employees . to the onset of a problem. For our purposes a blow off valve on I the monometer will emit a piercing whistling noise should the pressure, due to some "kink" in the system, exceed prescribed I levels. I was extended the benefit of a "view" of the monometer at I the hospital's premises. During that procedure the blow off valve was triggered in order that I have an appreciation of the I "loudness" of the noise that is emitted when pressure in excess of prescribed levels occurs I was also advised that in normal II circumstances the pressure gauge is set within an accepted margin .--- or "comfort zone" that exceeds the prescribed level. I Dr. D . Davis is employed as the Clinical Director of the I Hospital's Neo Natal Unit. She holds tenure as an Associate Professor of paediatrics at the University of Ottawa. She has II completed a Neonatal fellowship at the University of California I s~e qualified as an expert who offered her pro.fe.ssio~a:l opinion - w~th respect to the adverse etfects of adm~n~ster~ng excess I pressure to infants who are attached to ventilators in the hospital's Neonatal unit. She stated that incidents involving the II administration of excess pressure to an infant's lungs, although I - . I # 1- , . 5 I the adverse effect may not be immediate, may in future have I damaging consequences. For example, she described the effect on the infants of Mr. Zaki's activities in increasing the pressure I limits on the monometer as follows: ...Mr. Zaki was noted to be using overly high pressures to I ventilate an extremely premature baby Rather than decrease the pressure being delivered, Mr. Zaki increased the pressure on the manometer.... this is a ~ dangerous thing to do. I These high pressures increased barotrauma to the lungs and put the baby at much higher risk for pulmonary air leaks and subsequent bronchopulmonary dysplasia. I emphasis, Dr. Davis In lay terms Dr. Davis advised that a baby who is the I recipient of oxygen beyond the prescribed pressure levels may I potentially at some future time evidence chronic lung disease which could have a harmful impact on the patient's quality of life. It I l.S important to observe that in the two incidents that are the subject matter of these proceedings no immediate harm was detected I to the two infants who were allegedly improperly administered I oxygen beyond prescribed pressure levels. Nonetheless, I have no misgivings in holding, in the absence of contradictory m~dical - I opinion, that the allegations that have been made against the grievor, if proven, constitute " serious II professional aberrations. I Moreover, in light of that finding, I would hold as accurate the I hospital#s characterization of the grievor#s alleged "fault" as a Level 2 category insofar as they constitute "potentially or I moderately serious incidents". In that context, I would also observe that throughout these I proceedings counsel for the trade union made numerous references to << - I , 1- 6 I the complainant nurses' failure and omissions to properly document, ie. , chart, both occurrences as might be expected in accordance I with the hospital's procedures. The purpose of dwelling on these I omissions (to document) was with a view to convincing me that the hospital overreacted to Mr. Zaki' s alleged shortcomings in that the I incidents were not significant. Indeed, the one presiding Doctor, Doctor Softah, might be faulted for a similar deficiency to I document. But from the perspective of the expert medical opinion I that shortcoming, if true, does not in my view mitigate the seriousness of the incidents that were described. Rather, it I merely indicates that other disciplinary measures ought to have been followed with respect to any deviation from hospital norms in I documenting serious incidents of suspected professional wrongdoing. I It follows from all of the foregoing that I would concur with the employer's submissions to the effect that any violation of the I professional standard of care owed by Mr. Zaki to his patients for either incident would warrant per se the imposition of a five day I suspension. It should be observed, nonetheless, that the trade - I union's counsel made submissions with respect to the appropriateness of the five day suspension penalty should only one I of the hospital's allegations be proven. I would simply defer comment with respect to those submissions until later in this I award.. It J..s common ground that Mr. Zaki's personal record I indicates that he has incurred two disciplinary notations (ie., reprimands) and a one day 'suspension for previous acts of J misconduct relating to the performance of his professional duties. - I I I- I 7 The Babv LP Incident I On the morning of January 17, 1992, at approximately 6 AM, the grievor was responsible for administering a "ventolin n treatment to I Baby L.P. The baby was born twenty-five (25) weeks prematurely and - required a ventolin treatment to assist his lungs absorb the oxygen that was delivered through a ventilator. At 6 AM the attending I nurse, Ms. Estelle Leduc, confirmed that the gauge on the ventilator was properly set at the prescribed level of 23/5. While I the ventolin treatment was underway Ms. Leduc noticed sometime , between 6.06 and 6:15 AM that the gauge showed a pressure reading of between 29/5 and 30/5 above the prescribed level. In attendance II beside Ms. Leduc was Ms. Karen (Crispin) Wupori R.N. who was the team leader assigned to the Neonatal unit that shift She also I observed that the reading on the pressure gauge was in excess of the prescribed limit. At that material time, Mr. Zaki was involved - in carrying out other duties by the blood gas machine approximately II. twelve feet away. Mr. Zaki was summoned and advised that the pressure gauge was showing a reading that was beyond the prescribed II limit. Ms. wupori asked him why that was the case. He responded by indicating that the baby had "bad lungs ". He proceeded to touch 81 something on the machine and both Ms. Wupori and Ms. Leduc observed I that the dial on the pressure gauge descended from the level of 30/5 to the prescribed level of 23/5. I Ms. Wupori could not recall whether or not at any time during the encounter the blow off valve on the ventilator sounded its I alarm. Ms. Leduc was not asked whether she heard the alarm I 1- , 1- 8 I trigger. I Neither witness could say with any degree of certainty whether the "peep" gauge showed that the pressure had been set at 23/5 or I 30/5. They could only attest with utter certainty their observation that the dial on the pressure gauge ( ie . , that tells I you the pressure that is received by the baby) was at the 29/5 to I 30/5 levels. The employer has conceded that it cannot establish with I scientific precision whether the cause of the increased pressure readings could be attributed to the grievor purposely setting the I , "peep" dial at an unauthorized level or whether while administering I the ventolin treatment he allowed the pressure to increase beyond the prescribed limit. Indeed, from the employer's perspective it I was an irrelevant consideration as to why or in what manner Mr. Zakicompromised or prejudiced the safety of the baby tha twas I entrusted to his care. It simply sufficed for its purposes to I establish, by clear and cogent evidence (albeit of a circumstantial nature) Mr. Zaki's responsibility for the unauthorized pressure - I that was administered. Ms. Wupori indicated that a defect in the operation of the I ventilator may very well cause prescribed pressure readings to go I awry. However, despite her not recalling whether the alarm sounded, she discounted any deficiency in the machine's operation I as an explanation for the situation with which she was confronted. And in order to eliminate any defence that the pressure gauge was , inoperative ( ie . , Ita kink in the system") the employer called Mr. , . I , I 9 I Corey McLaughlin to give his opinion. Mr. McLaughlin has been I employed by the hospital as a Biomedical Technologist who for the past six years has been responsible for the general maintenance, I repair and calibration o! the medical equipment used in the neonatal unit. He would have been responsible for the servicing I and the maintenance of the ventilator assigned to Baby L.P. I (ventilator #5) . In his experience Mr. McLaughlin indicated that, in having regard to appropriate "margins" that are normally I established he has never encountered an instance where the blow off valve on the ventilator has not sounded its alarm when the pressure I ~ has exceeded prescribed settings. Nor has an instance occurred I where it has been reported to him, as in the instant situation, that an alarm failed to trigger an appropriate response I As hitherto indicated the trade union elected not to call Mr. Zaki to give his version of the events that have been described or I to offer any explanation of whether those events implicated him in I any misconduct or violation of his professional duty. Rather, the trade union submitted that the employer's I circumstantial case in support of its allegations of wrongdoing fell far short of requiring Mr. Zaki to offer a response At the I heart of the trade union's argument was the fact that the employer I could not ascribe Mr. Zaki's alleged role l.n its holding him accountable for the unauthorized pressure levels observed on the I' ventilator. In counsel's view the employer was duty bound to ascribe "fault to to Mr. Zaki either because of his missetting of the I pressure dial on the ventilator or in his administration of the -, I I 10 I ventolin treatment (that the expert evidence confirmed might, if I not properly monitored, precipitate a pressure iDcrease) . Otherwise, it was argued the employer's case was simply ambivalent I or "a hit or miss situation". And, from the grievor's perspective, it would be unfair and unjust to require him to provide an answer I to such tentative or problematical accusations. I Moreover, in counsel's view, there might very well be an innocent explanation for the pressure increase that had nothing to I do with Mr. Zaki's performance. A "kink" in the equipment might very well have been the cause of the variance between the I prescribed pressure settings (which was accurate as of 6 AM) and the subsequent events that ensued some ten or fifteen minutes I thereafter. In any event, the fact that Ms. Wupori could not I recall whether or not the alarm triggered ought to enure to the grievor's benefit. That is to say, if the alarm triggered then it I might readily be concluded that the pressure gauge was properly set I at the prescribed level. Or, more significantly, thegrievor ought not to be placed in the situation of defending himself against an - I allegation of wrongdoing where another explanation (ie., a defect or "kink" in the equipment) was both probable and likely. I In resolving the evidentiary issue I am satisfied that the employer's evidentiary case for inculpating the grievor in a I violation of his professional duty of care in setting and I maintaining the ventilator at prescribed pressure levels has been satisfied. The most glaring, uncontradicted event in the episode, I as described, that implicates the grievor in culpable misconduct - I- I 11 I was the instantaneous and immediate manner he remedied the pressure I problem upon his being summoned to the machine by Ms. Leduc and Ms. wupori. Although both did not what dial Mr. zaki nurses see I touched they did observe the pressure gauge descend as soon as he attended the ventilator. The grievor knew immediately where the I problem lay and his ability to resolve it without hesitation or I deliberation indicated, in my view, his knowledge of and responsibility for the inappropriate pressure levels. I Indeed, if there was an explanation inconsistent with his own responsibility, then I hold it to have been Mr. Zaki's obligation I , to have offered that explanation by taking the witness stand. For I example, if, indeed, a systemic probl~m or "kink" in the equipment was the explanation then the immediacy of his remedial response did I not suggest any time spent to investigate and diagnose the source of the difficulty. But, in any event, Mr Zaki had an obligation, I given his overall responsibility for the care and control of the I ventolinprocedure and the equipment that he was responsible for operating, to defend that hypothesis. Otherwise, I am left with no I alternative but to conclude that the reason he did not take the witness stand is because of the validity and appropriateness of the I employer's evidentiary case against him. I In having regard to the foregoing I would therefore conclude, particularly in the absence of any evidence from the grievor of a I m1.tigating circumstance or of anycontri tion for this serious professional aberration that a five day suspension is both just and I appropriate. I I I- 12 I That opinion might otherwise suffice to eliminate any I necessity for my examining the second incident of misconduct that was alleged against Mr. Zaki. Nevertheless, as indicated earlier I in this award, the trade union has insisted that the grievor's exoneration from the second incident might very well prove I persuasive in influencing me to halve the five day suspension that was assessed against him. That is to say, because the employer I relied upon two incidents of misconduct in assessing the five day I suspension, I ought to exercise my discretion to reduce in a commensurate fashion the penalty should that second incident fail I to be proven. The Baby R Incident I On January 17, 1992, aaby R was experiencing "spells" cau~ed I by difficulties in breathing. Ms Karen wupori, the team leader, summoned Dr. Softah to examine her. Dr. Softah was the resident I physician who was "on rotation" and was assigned to the hospital's neonatal unit at the material time of the incident. Dr. Softah I received his medical degree in his native Saudi Arabia and was I engaged in securing his "specialty" in paediatric medicine in Dr. Softah concluded as a result of his examination of the Canada. I infant that the tube feeding Baby Rwith oxygen from the ventilator was blocked. A "reintubation" procedure was warranted. I Mr. Zaki was the attending Respiratory Therapist who was I responsible for maintaining the pressure of the oxygen flow from the ventilator at the prescribed 10/3 limit. And, while Baby R was I temporarily removed from the ventilator during the reintubation I - ---- I I I 13 procedure, Mr. Zaki was responsible for "bagging" (ie. , I administering oxygen to the baby by manual means) the baby within prescribed pressure limits. I It is common ground that for the short period that the I reintubation procedure was suppose to last the "bagging" procedure is the appropriate means of furnishing the baby with oxygen. The I objective of the bagging procedure is to super-saturate the baby's lungs witb oxygen. ~ce the baby's lungs are properly saturated I then the doctor inserts the new tubes. Once inserted the bagging I procedure r~sumes while the attending physician verifies by placing his stethoscope on both sides of the baby's chest that the oxygen I is being properly received. It is also ground that Baby R was "feisty" (ie. , common I difficult) during the initial intubation procedure. While Dr. Softah was engaged in the reintubation procedure nurses Nancy I poidevin and Karen wupori were on each side of Dr. Softah holding I the baby still and were generally assisting the doctor. TQ the side, Mr. Zaki was monitoring the ventilator while he was engaged I in "the bagging procedure" . Dr. Softah's initial effort at reintubation was not successful. I During the second effort both Nurse poidevin and Wupori I complained that Mr. Zaki was bagging too hard. Indeed, he was bagging so strenuously that the alarms on the blow off valve I triggered its piercing sound. The noise was both loud and I persistent That is to say, despite the nurses' numerous attempts to persuade Mr. Zaki to reduce the pressure (thereby eliminating I I I. I 14 the alarm) the noise continued unabated. Ms. Wupori and Ms. I poidevin each observed Mr. Zaki's attempts, on two separate occasions, to eliminate the noise by increasing the pressure on the I monometer gauge From their perspective they noticed that at one point the monometer was reading at 30/5 where 10/5 was the I prescribed pressure level. Indeed, the alarm would only emit its I warning, having regard to the comfort zone set on the gauge; upon the exceeding 15/5. In other words, the grievor's pressure I response to the alarm's noise by increasing the pressure beyond "the comfort zone" could potentially have caused Baby R serious I physical damage. Or, in Dr Davis' terms, it was clearly "a very I dangerous" thing for him to have done. At a critical juncture in the reintubation procedure Dr. I Softah was engaged in the examination of Baby R's chest to determine whether the oxygen was properly flowing to the baby's I lungs. While carrying out this assessment Ms. Wupori stated that I Dr. Softah complained about the interference caused by the alarm's .noise . The noise was 50 loud that he could not hear the oxygen I pass through the baby's lungs. He asked for the noise to stop. Nurse Poidevin could not recall Dr Softah's request that the noise I end. However, when the alarm's noise persisted both nurses I testified that Dr. Softah took over the bagging procedure from Mr. Zaki While pumping to the baby's lungs (without the oxygen I alarm's interruption) Nurse Wupori applied the stethoscope to the I baby's chest to determine whether the passage was clear. From the expert evidence that was led the appropriate I - I I, 15 I procedure that Mr. Zaki ought to have followed both to restore the I pressure to the appropriate level and to elimina1;e the alarm's noise was either to apply less pressure during the bagging I procedure or to regulate the air flow from the ventilator. Increasing the pressure on the monometer as a means of stopping the I noise in Dr. Davis' view was the worst alternative. I Apart from the one significant concer~ about Nurse poidevin's inability to recall or confirm Dr Softah's request (that the noise I stop) there occurred in my view other evidentiary problems that inhibited the employer from establishing in evidence a clear and I cogent case of wrongdoing. While on the witness stand Dr. Softah (who was called by the employer) could not confirm any of the I salient details that were recounted by the two nurses with respect I to his particular involvement with Mr. Zaki's failure to eliminate -- the noise emitting from the alarm Within days of the incident Mr. I Zaki was interviewed by Dr. Davis (who was asked to conduct an investigation). She testified that Dr. Softah was reluctant to I recount any untoward or aberrant professional behavior involving I Mr. Zaki. Dr. Davis was uncertain whether the doctor's misgivings were attributable to a failing memory or to his reluctance (as a I foreign student) to become involved in an unpleasant task. I While on the witness stand, however, my observation of Dr. Softah's demeanour suggested an individual who was willing and I anxious to co-operate and lend assistance with respect to his involvement in the incident to the extent his ability (ie. , his I memory) permitted. I :~- , I . I . 16 I In that context, Dr. Softah's personal written record of the I -reintubation procedure involving Baby R reflected no difficulty with the operation of the ventilator or with Mr. Zaki's involvement I in the bagging procedure. Although his memory of the incident (from the perspective of approximately two years since the I incident's occurrence) was clearly deficient, Dr. Softah remained I reluctant to implicate Mr. Zaki in any improper or inappropriate professional misconduct. He did indicate that if the events I occurred as the two nurses had described them then he would have acted in a manner they indicated to be the case. The factor that I , harmonized Mr. Zaki's alleged wrongdoing as described by the nurses I with Dr. Softah's lack of consciousness of that event was attributable by the employer to the concentration he later exerted I in completing the reintubation procedure. Dr. Softah because he was so engrossed in that procedure, simply "blocked out "everything I that occurred from his consciousness inclusive of the noise from I the alarm. But as Ms. Wupori testified Dr. Softah would have had to have I been "deaf" not to have heard the alarm. And, absent a hearing deficiency, I cannot appreciate why Dr. Softah would not have I recollected the incident as described by Nurses Wupori and poidevin I a day after its occurrence. Whatever hypothesis that was offered by Dr. Davis with respect to his reluctance to become involved, Dr. fa Davis' own explanation with respect to her own reluctance to push Dr. Softah (ie., to conduct a more intensive interview) may be the I reason that more information failed to emerge. During his I I 1- 17 I testimony Dr. Softah expressed, with a degree of certainty, the I opinion that the events as were described by the two nurses may not have occurred. For example, in cross-examination, Dr. Softah is I asked: At any time during the first or second assessment did you I experience difficulty making the assessment? Not to my knowledge, I can't remember anything that was I interfering with my hearing at the time. At this juncture of his cross examination Dr. Softah did indicate I (as the employer submitted) that if the noise from the alarm I occurred he may not have heard it (ie., he blocked it out) because , of his concentration on the baby while assessing the passage of I oxygen with the stethoscope in his ears. However, he goes on to contradict the likelihood of that happening: I If you ha,d problem (i.e , with the noise) would you say something to Zaki? I Yes. Did you say anything to Zaki? I I don't recall, it is likely I didn't say anythinq - If you heard the monometer making noise you would be aware . that the pressure is too high? ~- ,. ' Normally. Yes. I If there was a continuous noise you would eventually become aware of this fact? . Yes. I And you would tell them to turn it down? Yes. -, Did the nurse complain about the sound or excess pressure about Zaki? I I - ; ~ , I. 18 I I don~t know whether she said anything or not. I You personally didn't notice anything about Zaki that caused you concern? I If there is anvthinq that happened and it is important I would have remembered it. But to mv knowledqe nothinq happened. emphasis added I The issue with respect to this second incident is whether the I employer has satisfied "the clear and cogent" evidentiary burden of establishing Mr. Zaki's responsibility for a serious breach of his I professional duty. And in that regard, although the evidence of Nurses poidevin and wupori was convincing in the description of .. I their respective perceptions of the grievor's behaviour, the I presiding medical official responsible for the procedure, namely Dr. Softah, could not confirm their perception. In my view, it is I inaccurate to ascribe, as the employer has sought, Dr. Softah's deficiency in recounting the incident to a poor memory that was I aggravated by his being engrossed in a difficult medical procedure. I As indicated in his testimony, he has cast a serious cloud on the employer's case by indicating with respect to its most salient I features that "to his knowledge" what the nurses described "did not happen" , or was not "likely" to have happened and, most I significantly, "if it did happen I would have remembered it". In I my opinion although it would be injudicious to hold that Dr. Sbftah directly contradicted both nurses' testimony his description of the I incident was sufficiently in conflict with what they said had happened to impel me to exonerate the grievor from any professional I wrongdoing by reason of the employer's failure to satisfy the I - 1- - > 14 19 I evidentiary burden. It therefore follows that the grievor was properly relieved from taking the witness stand to provide a I defense to or an explanation of his alleged misbehaviour. II In the light of the employer's divided success the trade union urged me to reduce the five day suspension to a more appropriate II disciplinary result. In response the employer argued that the one incident of proven wrongdoing having regard to its seriousness I warranted the five day suspension. II As already indicated, the trade union's reasoning for mitigation of the penalty would suggest that because the employer I relied on both incidents of alleged wrongdoing to justify the five day suspension it has incurred some prejudice with respect to the . quantum of the penalty because of its having failed to establish to . my satisfaction the one incident. I do not agree. As indicated to counsel during argument if an . employer relies upon two incidents of theft to support an employee's discharge is the arbitrator obliged to mitigate the II discharge penalty if one of the counts goes unproven? . The -two incidents of misconduct the grievor was alleged to have committed constituted serious breaches of the professional . standard of care owed by a health provider to his patients (indeed, the most vulnerable of patients). Mr. Zaki, for strategic reasons, . did not take the witness stand in the one incident where his . misconduct was proven. Be has therefore failed to provide any explanation or any defence for his professional misdeed. As a . result, I have serious misgiving as to whether he appreciates the . I i~_. - I I ) 20 II consequences of what he did was wrong - seriously wrong - and I thereby is prepared to accept responsibility for that wrongdoing. Indeed, recognition by the perpetrator that he has done something II wrong is the first step towards rehabilitation. I would therefore tind on those grounds that there is absent any basis for my I mitigating the five day suspension for a serious professional I infraction that is per se appropriate. Mo~eover, as the employer submitted, had the hospital assessed I the grievor a more lenient penalty for the two separate infractions (let us assume a three (3) day and five (5 ) day suspenslon I ~ respectively) then it may have been criticized, having regard to I the close proximity of both infractions in re~ation to each other of failing to allow the rehabilitative effect of progressive I discipline to take hold. On the other hand, if it took a more severe approach to discipline, as may have been warranted by the I seriousness of both infractions; it would have been compelled to have assessed the grievor five (5) and ten (10) day suspension II penalties for the incidents. I In my opinion, the rehabilitative objectives that progressive discipline are designed to serve do not always lend themselves to I mathematical or scientific precision in measuring the employer's disciplinary responses to aberrant professional behaviour. It I suffices for instant purposes to hold that a serious breach of the . professional duty owed by a health care official to his or her patient perse warrants the rather lenient penalty (without having . regard to the grievor's record), a five day suspension. . cv,.' ;;g . . - -----..--. ------- -.--- ---- -- ----._.~-.---'---~-~ u__, _ ------- ~------------ " .- t ~ . "l --- . 21 I ~- l The grievance is therefore denied. I Dated this day of t~MarCh 1994. JI &t\~ ~ . I I I I I I - I I I I I I