HomeMy WebLinkAboutSt Onge 03-12-28
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BETWEEN:
IN RESPECT OF:
BEFORE:
APPEARANCES FOR
THE UNION:
APPEARANCES FOR
THE EMPLOYER:
HEARINGS:
IN THE MATTER OF AN ARBITRATION
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Ontario P~blic Service Employees Union,
Local 143
,
Union
- and -
Sundowners Day Care and Resource Centre
Employer
The Grievance of Nancy st. Onge
M.V. Watters, Sole Arbitrator
M. Bevan, Grievance Officer, OPSEU
N. st. ange, Grievor
G.W. King, Counsel
D.M. Shuker, Counsel
L. Hills, HR Coordinator
March 4, June 21, June 24, September 25,
September 26, 2002 and January 20,
January 21, 2003.
AWARD
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This proceeding arises from the grievance of Ms. Nancy st.
Onge dated August 24, 2001.
had been unjustly dismis~ed~
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with full monetary redress.
The grievor claimed therein that she
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She asked for reinstatement together
The Employer operates a number of school based child care
facilities throughout Windsor and Essex County.
The incidents
material to this dispute occurred at the King Edward School site in
windsor. The grievor worked at that location as an Early Childhood
Education teacher. She was assigned to the School Age Room and,
together with one (1) other teacher, was responsible for the care
of approximately twenty-five (25) children. The grievor commenced
work with the Employer in September, 2000. Prior to August, 2001,
she had not received any discipline from the Employer.
The letter of termination dated August 24, 2001 reads, in
part:
"
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
We have now completed our investigation with respect to
occurrences involving two of our children on August 9, 2001.
As a result of our investigation we have concluded that;
i) You used inappropriate physical force with a child
under your care causing injury to this child;
ii) You used inappropriate and abusive verbal contact
with children under your care;
iii) You failed to report the injury to the child
referred in paragraph i) above and took steps
to keep the information from the Employer and
the parents of the child.
We have concluded that, by your conduct above, you have
violated a number of the Sundowners' Rules of Conduct as
follows:
Rule #1 - The wilful neglect, physical or verbal abuse
of a child (i), (ii), (iii);
Rule #6 - Refusal to comply with directions regarding
safety practices (iv);
lIP
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Rule #17 -
The continued use of profane language and/or
the exhibition of inappropriate behaviour
within S~downers (ii) and (iii); and
Any conduct which may tend to bring Sundowners
disrepute of which is offensive to the
mai~tenance of good relations with fellow
employees or member of the public
or which may otherwise interfere with the
proper and efficient administration of
Sundowners (all of above).
Rule #18 -
As well, by your conduct, you may have caused Sundowners to
be in violation of the following regulations of the Day
Nurseries Act:
S.45(1)
No operator shall permit,
(a) corporal punishment of a child;
(b) deliberate harsh or degrading measures to
be used on a child that would humiliate
a child or undermine a child's
self-respect;
Sundowners is mandated statutorily and by mission statement,
to provide a safe, healthy and positive environment to the
children whose care has been entrusted to us by their
parents. Your actions have completely undermined this trust.
We cannot and will not tolerate this type of misconduct
directed against children under our care. We must maintain
a zero tolerance with respect to issues relating to the
treatment and/or protection of the children under our care.
For these reasons, we have determined that your actions
warrant termination for just cause.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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(Exhibit #2)
In closing argument, counsel for the Employer advised that his
client was not relying on the second allegation contained within
the first paragraph of the above letter. More specifically, the
Employer no longer sought to support the termination on the grounds
that the grievor used n inappropriate and abusive verbal contact
with childrenrr under her care. Rather, its position was premised
on the first and third allegations; namely, that the grievor used
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"inappropriate physical force with a child" under her care causing
injury to the child and that ihe failed to report such injury
took steps to keep the i~formation pertaining to same from both
,
Employer and the parents.
and
the
Counsel also advised that the Employer
was no longer relying on a violation of Rule #17.
The issue between the parties was further narrowed in closing
argument. The Union's representative advised that the Union would
not seek reinstatement of the grievor's employment if the evidence
established she knowingly attempted to cover up an injury caused by
her intentional or accidental conduct.
Put another way, the
parties agreed that a finding on my part that the grievor attempted
to cover up an injury would be sufficient reason to sustain the
discharge.
The following six (6) witnesses presented evidence on behalf
of the Employer: Ms. R.J., Ms. Kathy Morand, A.J.W., Ms. C.W., Ms.
Melissa Craig and Ms. Leah Hills. At the request of the parties,
I have used initials to identify certain of these witnesses in
order to protect the privacy of the children involved in this
dispute.
Ms. R.J. is the mother of two (2) daughters, A. and K., who
attended I at the King Edward School site at the time of the
incident. A. was then ten (10) years of age and K. was five (5)
years old. Ms. J. testified that she observed the grievor berating
a young boy when she went to pick up her daughters at about 5:00
p.m. on Thursday, August 9, 2001. Ms. J. stated that the grievor
was "wagging her finger" in the boy's face. It was her perception
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that the grievor appeared "menacing" and "angered". Ms. J. did not
hear anything that was said d~ing the course of the exchange. At
the time, she did not know who the young boy was. It is
,
unnecessary to review Ms. J's evidence at any length given the
Employer~s decision not to rely on "an inappropriate and abusive
verbal contact".
What is important, however, is that Ms. J.'s
observations led her to make a verbal complaint to Ms. Morand on
the morning of Friday, August 10, 2001.
Ms. Morand was then a
Supervisor at the King Edward School site.
Their conversation
resul ted in Ms. Morand speaking to A. and B. D., another young girl,
that same day. During this latter intervention, Ms. Morand learned
for the first time that the grievor had caused injury to A.J.W., an
eight (8) year old boy, on the prior day. That information started
a chain of events which ultimately culminated in the grievor's
termination.
Ms. Morand worked for the Employer in the period December,
1989 to late August, 2001. At the time material to this dispute,
she was the grievor's Supervisor. Ms. Hills has been employed by
Sundowners Day Care and Resource Centre since August, 1988. For
the past ten (10) years, she has served as the HR Coordinator. In
this capacity, Ms. Hills is involved in the disciplinary process.
Both Ms. Morand and Ms. Hills testified about the investigation
which was undertaken in this instance. Ms. Hills also testified as
to why the Employer opted for termination as the disciplinary
response.
A.J.W. was nine (9) years of age on the date he gave evidence
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in this proceeding. His evidence focused primarily on the events
surrounding his injury on Au~st 9, 2001. A.J.W. satisfied this
Arbitrator that he understood the need to be truthful in describing
,
his account of the injury and the related circumstances. In
assessing the weight to -be accorded to his evidence, I have
considered both his age and the pressures a young witness might be
subjected to both in and outside of the hearing room. Ms. C.W. is
the mother of A.J.W. She had two (2) other children at the King
Edward School site as of August, 2001. Ms. W., in her evidence,
described how she became aware of the injury to her son. She
further outlined the steps she took upon learning of the context in
which the injury occurred.
Ms. Craig is an Intake Social Worker fOr the Windsor-Essex
Children's Aid Society. A report of the allegations against the
grievor was filed with that agency. Ms. Craig in the course of her
investigation interviewed the grievor and other day care staff on
Thursday, August 16, 2001. The results of her investigation were
released to Ms. Morand by letter of August 17, 2001. A similar
letter was forwarded to the grievor on September 5, 2001.
I am satisfied that the incident which resulted in injury to
A.J.W. occurred between 2:00 p.m. and 2:30 p.m. on Thursday, August
9, 2001. At that time, the grievor and another teacher, Ms. Trish
Mandeville, were in charge of the School Age Room. The children
were then starting to clean up the room in preparation for a field
trip to Peerless Ice Cream. The grievor was also involved in the
clean up. While so involved, the grievor turned and observed
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A.J.W. shove another boy, C., into a Lego table.
A.J.W.
acknowledged in his evidenc~ that he pushed C.
It is at this
point, however, that th~ respective accounts of the two (2)
.
participants start to diverge.
A.J.W. testified that the grievor approached him and grabbed
his left arm just above the wrist and pulled him across the room
towards a computer desk. It was his evidence that she held his arm
"really tight". A.J.W. stated that the grievor next "whipped out"
a folding chair that was leaning against the desk. In his words,
the grievor pulled the chair out "very hard" and banged it on the
floor to get it to open. A.J.W. testified that he was hit by the
chair in the area of the right thigh. He asserted that the grievor
then pushed him into the chair and that he hit his right leg a
second time in the same spot. A. J . W. advised that he was crying by
this point and that he asked the grievor for some ice. He recalled
that the grievor then told him that he was alright. It was his
further recollection that the other teacher in the room told the
grievor to get him some ice and that she then did so.
A.J.W.
maintained that the grievor did not apologize or say that she was
sorry for causing the injury.
The grievor stated that she approached A.J.W. after observing
him shove C.
She then asked him for an explanation for his
conduct, but did not get an immediate response.
It was the
grievor's evidence that she then took A.J.W. by the hand and walked
him over to the computer desk. She denied that she grabbed his arm
and that she pulled him across the room to the area of the computer
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desk. The grievor could not recall which hand she took in leading
A.J.W. to the desk. She agreed it was possible that she took him
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by the left hand. The grievor did recall that A.J.W. was walking
,
behind her as they moved "across the room. The grievor asserted
that she wished to remove A.J.W. from the situation so they could
discuss what had occurred.
In her view, it was more of a rrre-
direction" than a "time-out".
The grievor stated that she next picked up a folding chair
that was leaning against the wall or a table. She testified that
she opened the chair, placed it on the floor and then asked A.J.W.
to take a seat. It was the grievor's evidence that the chair was
in front of her both when she opened it and when she put it on the
floor. She claimed that she never lost sight of the chair while in
the process of opening it. It was the grievor's further evidence
that A.J.W. was standing behind her at the time. While she could
not recall his precise location when she opened the chair, the
grievor believed that A.J.W. was standing about three feet (3')
behind her and to the right when she asked him to sit down.
The grievor testified that she turned around after positioning
the chair and noticed that A.J.W. was holding his leg and crying.
She then asked him what was wrong. A.J.W. informed her that she
had hit his leg with the chair. It was the grievor's evidence that
she did not see the chair hit A.J.W. and that she did not feel any
collision. She was unable to say how many times the chair might
have bumped A.J.W. The grievor maintained that she did not whip or
throw the chair in a rough fashion. Indeed, she was somewhat at a
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loss to explain how the injury occurred.
The grievor stated that she
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where on the leg he had ,been hit.
,
then observe any mark on the
next asked A . J . W . to show her
She advised that she did not
leg. It was the grievor's
recollection that A.J.W. continued to cry and that she asked him if
he wanted ice for the injury. The grievor claimed that when he
answered in the affirmative, she went to the kitchen and got him
some ice. The grievor asserted that she told A.J.W. that she was
sorry and that it was an accident as she did not mean to bump him
wi th the chair.
The grievor stated that she likely apologized
twice for causing the injury.
Clearly, there are discrepancies in the evidence of A.J.W. and
the grievor in respect of how the injury occurred. The
inconsistencies are also reflected in the evidence of Ms. Morand,
Ms. Craig and Ms. W. These inconsistencies may be summarized as
follows:
i) Ms. Morand testified A.J.W. told her on August 10, 2001
that the grievor pulled his arm over to a chair. She
recorded his statement in her notes filed as exhibit
#10. Ms. W. testified her son told her on that same
day that the grievor grabbed him by the arm. Ms. Craig
testified the grievor told her during their interview
of August 16, 2001 that she took A.J.W. by the arm.
That statement was recorded in Ms. Craig's notes filed
as exhibit #21. The grievor denied making the statement
to Ms. Craig. She asserted that she informed Ms. Craig
she took A.J.W. by the hand. Ms. Morand's notes of the
grievor's meeting with the Employer of August 21, 2001
record that the grievor indicated she took A.J.W. by
the hand. These notes were filed as exhibit #15;
ii) Ms. Morand testified A.J.W. told her on August 10, 2001
that the grievor banged his leg on the table. She
recorded his statement in exhibit #10. A.J.W. denied
making that statement to Ms. Morand. The grievor
testified she informed Ms. W. on the afternoon of
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August 10, 2001 that she had bumped her son's leg with
the chair. Ms. W. stated that her son said the
same thing on thei~ way home later that day.
Ms. Craig's note~ from the interview of August 16, 2001
record that ~he grievor said that she bumped A.J.W.
with the cha~. Ms. Morand's notes of the meeting of
August 21, 2001) record that the grievor said that
A.J.W. told her she had bumped him with a chair;
iii) Ms. Morand in exhibit, #10 records that A.J.W. only
mentioned being hit once. A.J.W. claimed he told
her that his leg was hit a second time. Ms. W.
testified her son told heron August 10, 2001
that his leg was hit a second time. The notes of
Ms. W.'s meeting with the Employer on August 22, 2001
do not disclose any mention of a second contact with
the chair. These notes were filed as exhibit #18;
iv) Ms. Morand in exhibit #10 records that A.J.W. told
her the grievor apologized and got him some ice.
Ms. Craig's notes of August 16, 2001 and.
Ms. Morand's notes of August 21, 2001 both record
the grievor's statement to the effect she
apologized to A.J.W. and got him ice.
After considering all of the above referenced conflicts, I
have been persuaded that nothing turns on them. Clearly, there is
no dispute between the parties that A.J.W. was, in fact, injured.
When Ms. Morand first spoke to A.J.W. on Friday, August 10, 2001,
he confirmed that he had been hurt on the prior day. She observed
that he had a bruise on his upper right leg about the size of a
loonie. Ms. W. also saw the bruise later that day on their way
home from school. There is no suggestion from the parties that the
bruise was unrelated to the events of August 9th. Ultimately, I am
satisfied that the grievor's actions on that day resulted in an
injury to A.J.W. sufficient to cause bruising to his leg. The
threshold question is how the injury actually occurred.
There is insufficient evidence to establish that the grievor
intentionally injured A.J. W. Rather, the evidence when considered
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in its entirety suggests that the injury was accidental in nature.
In my judgement, however, thE;,injury could have been avoided. It
is apparent that the grievor was upset after she observed A.J.W.
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shove C. into the Lego table. I think it more likely than not that
she pulled A.J.W. across the room to the area of the computer
table. I note, in this regard, that the grievor testified that
A.J.W. was behind her as they crossed the room. This positioning
is consistent with A.J.W.'s assertion that the grievor pulled him
away.
During her cross-examination, the grievor demonstrated how she
picked up the chair and how she opened it and placed it on the
floor. She reiterated that the chair was in front of her at all
times and that A.J.W. was behind her. On my assessment, there is
no way that A.J.W. would have been struck by the chair if events
occurred as described by the grievor. In the circumstances, I am
led to the conclusion that the grievor did grab the chair in a
rough or aggressive fashion and that it came into contact with
A.J.W.'s leg. The bruise to A.J.W.'s leg is also consistent with
the grievor's forceful movement of the chair.
I have some
difficulty in accepting the grievor's claim that she neither saw
nor felt the chair collide with A.J.W.'s leg.
In the final
analysis, I accept Ms. Hill's opinion that the grievor used
inappropriate physical force, notwithstanding that the resulting
injury to A.J.W. was accidental.
As stated above, Ms. Craig met with the grievor on Thursday,
August 16, 2001 as part of the Children's Aid Society
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investigation.
The following is an excerpt from her notes of that
meeting:
.,
"
. . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nancy put her hea~ down-did not deny any allegations-she
cried and said she has hard time in school age room-feels
stressed/overwhelmed-kids have no respect, they don't
listen-talk to her poorly.
-she believes kids need tQ be taught respect and
disciplined-don't have that nowadays
-she gets upset when kids act out
-I asked why she takes this personally-they are children
'--her job is to know how to handle them-no response
-she agreed that she may be rough (lang. and beh.) due
to her feelings of stress
-she acknowledged that she made no attempts to get help
for stress-talk to Kathy, etc.
-I expressed concern for future incidents given her
emotional state-she didn1t dispute
. . . . . . . . . . . . . . . . . . . e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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It is clear that Ms. Craig believed, on the basis of what she was
told, that the grievor was having a difficult time coping in the
School Age Room due to her stress and sense of frustration. This
belief, in large measure, led her to conclude that the grievor
"should not be in a primary care giving role to any child at this
time". This conclusion was communicated to Ms. Morand by letter of
August 17, 2001 (exhibit #19) and to the grievor by letter of
September 5, 2001 (exhibit #20).
I have addressed the issue of stress and frustration because
these feelings might have been a cause for the grievor's excessive
reaction on August 9, 2001. The problem is that the grievor in her
evidence denied that such feelings were attributable to her work in
the School Age Room. Rather, she asserted that her sense of unease
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flowed entirely from having to meet with the Children's Aid Society
in the presence of Ms. Morand \nd without any union representation.
The grievor testified that this was communicated to Ms. Craig
, c
during the meeting. I find it difficult to accept the grievor's
assertion. I note that it was not documented by Ms. Craig. More
importantly, it is clear from an assessment of Ms. Craig's evidence
that the cause for the stress was much broader than claimed by the
grievor. My approach to this case might have been different had
the grievor acknowledged the existence of work-related stress at
the hearing. Instead, she denied that her stress resulted from
that cause. I am left with Ms. Craig's impression that the grievor
had no interest in pursuing help be it through counselling or an
Employee Assistance Program.
As mentioned above, Ms. Morand first learned of the injury
sustained by A~J.W. when she spoke to A. and B.D. on August 10,
2001 after receiving Ms. J.'s complaint. Ms. Morand then went to
find the nOuchie Form" which she assumed had been completed by the
grievor at the time of the injury. The Ouchie Form is a Sundowners
document that is to be completed whenever a child is hurt. The
form is designed to record the following: date and time of the
accident; child's name; name of person completing the document;
teacher(s) present; explanation; first aid given; and parent's
signature. After completion, the document is to be signed by the
parent. Ms. Morand advised that the practice is to have the parent
sign the Ouchie Form on the day the injury occurs.
Ms . Morand
testified that she was unable to locate an Ouchie Form in respect
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of the injury to A.J.W.
Ms. Morand next approaCh,d the grievor in the School Age Room
and asked her where the Ouchie Form was. It was her evidence that
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the grievor then asked her what she meant. Ms. Morand explained
that A.J.W. had been hurt on the pFior day and that there was no
Ouchie Form on record. Ms. Morand testified the grievor replied
that she "must have forgot to do one".
Ms. Morand then made a
statement to the effect that she assumed the grievor had told Ms.
W. about the injury. She recalled that the grievor responded as
follows: "I remember talking to her, but I'm not sure if I told
her or not". Ms. Morand then suggested to the grievor that she
would likely have remembered telling Ms. W. of the injury if she
had actually done so. Ms. Morand formed the impression from this
exchange that the grievor had tried to cover up the incident. The
grievor was instructed to immediately fill out an Ouchie Form. The
form which she completed on August 10, 2001 reads, in part:
"Explanation: A teacher bumped A.J. in the right
front upper leg with a chair. No visible mark
at first. Bruise appeared later. Few tears.
First Aid Given: Ice applied. TLC."
The grievor acknowledged in her examination in-chief that she
did not complete an Ouchie Form on August 9, 2001. Her explanation
was that she "just forgot about it". The grievor agreed that she
should have completed the form on the day of the injury. In cross-
examination, the grievor was presented with a total of forty-three
(43) Ouchie Forms that she had completed over the course of her
eleven (11) months of employment. She advised that all of the
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forms were done on the actual day of the injury.
The grievor
agreed that but for the incid~~t here in issue, in which she caused
the injury, she had never failed to complete an Ouchie Form on the
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same day as the injury.
The grievor further acknowledged that she failed to tell Ms.
w. of the injury when the latter arrived to pick up her son on
August 9, 2001.
In her words, she "just forgot".
The grievor
denied she told Ms. Morand that she could not recall if she had
informed Ms. W.
It was her assertion that this represented the
first time she had failed to advise a parent of an injury on the
same day it occurred. The grievor testified she realized later on
August 9th that she had neglected to apprise Ms. W. of the injury.
It is apparent that such realization did not motivate her to either
contact Ms. W. at home or to complete an Ouchie Form that day. The
grievor maintained that it was foremost on her mind on the morning
of August 10th to inform Ms. W. of the incident.
It is clear,
however, that she neither spoke to Ms. W. nor completed an Ouchie
Form until after she was first approached by Ms. Morand. On the
evidence before me, the grievor first spoke to Ms. W. about the
injury late in the afternoon of August 10th when Ms. W. arrived to
pick up her children from the school.
At about 4:30 p.m. on August 10, 2001, Ms. Morand went to the
School Age Room. She stated that she did so because she wanted to
ensure that the grievor told Ms. W. about the injury and had her
sign the Ouchie Form.
Ms. Morand testified she overheard the
grievor tell Ms. W. that she had given A.J.W. "a choice" as to
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whether to tell her or not. Ms. Morand, in her evidence, stated
that this was not the proper froc~dure. She advised that she had
never previously heard of a'situation at Sundowners where a teacher
,
gave a child the option of telling a parent about an "Ouchie
situation". Ms. Morand also heard Ms. w. tell the grievor that she
knew nothing about the incident.
A.J.W. testified that he did not tell his mother about the
incident when she arrived at the school on August 9, 2001. When
asked why he failed to mention the incident to her, he replied
"because she said if I told anyone, I might loose my birthday".
A.J.W. indicated that thegrievor said this to him while they were
still in the School Age Room immediately following the injury.
A.J.W. stated he felt that the grievor was telling him he would
lose his birthday party if he told his mother about his leg being
hit by the chair. He did not recall the grievor telling him that
he would lose his birthday if his mother discovered he had pushed
c.
Ms. w. testified that she signed the Ouchie Form when she
arr i ved to pick up A. J . W. on the afternoon of August 10, 2001. Ms.
W. did not know what the grievor was referring to when the latter
said she was sorry "about what happened to A.J.". Ms. W. stated
that she signed the form without reading it, as she was anxious to
depart for home with all of her children.
When presenting her
evidence, Ms. W. indicated that she did not recall the grievor
informing her she had given A.J.W. a choice to tell her or not.
She agreed that it was possible the grievor did make such a
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statement. On this point, the notes of Ms. W.'s meeting with the
Employer on August 22, 2001 read ftS follows:
l
"On Friday August 10, '2001 she attended Sundowners to pick
up (A.J.) at appr<t,Ximately 3:30 p.m. Upon arrival, she
was met by Nancy st. Onge, A.J.'s teacher, who produced
an 'Ouchie Form' and stated that she was sorry for what
happened to A.J. Ms. W., unaware of the incident with
A.J. the day before, askeq what she was referring to.
Nancy stated that she gave A.J. the option of telling
her of the incident due to the fact that Nancy was
aware that if A.J. got into trouble at school he may
lose a birthday party Ms. W. was planning for him..........
"
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Exhibit #18)
On the way home, A.J.W. told his mother what had occurred on the
previous day to cause his injury. Ms. W. testified that her son
told her he kept silent about the incident because the grievor
informed him that he would lose his birthday if he told his mother.
The grievor testified that she was aware from another teacher
that A.J.W. would lose his birthday party if he got into trouble
again at school. The grievor stated that she felt sorry for A. J . W .
and did not want to see him lose the party.
She, therefore,
decided to give him "one ( 1) last chance" to improve on his
behavior. More specifically, the grievor claimed she told A.J.W.
that she would not tell his mother he had pushed C., as that
revelation would result in the loss of his party.
The grievor
denied she told A.J.W. that she would not inform his mother he had
been hurt. In cross-examination, the grievor acknowledged that if
she told Ms. W. about her son pushing C., then it might come to
light that she had subsequently caused injury to A.J .W. The
grievor also denied that she gave A.J.W. "a choice" as to whether
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to tell his mother or not. It was her evidence, rather, that she
made a choice not to say anyt~ing (because she did not want A.J.W.
to lose his party. .The' grievor agreed that she had never
,
previously had this type of a discussion with a child under her
care.
This subject was also addressed during the grievor's interview
with Ms. Craig. Ms. Craig's notes read as follows:
"She admits that she "made a deal with the child to
keep incident a secret" - why? - she said he was
afraid mom would take his b-day away and that she
wasn't trying to cover her tracks".
It was the grievor's evidence that she told Ms. Craig the
arrangement was to keep A.J.W.'s behavior, and not his injury, a
secret. That distinction was not apparent to Ms. Craig and was not
recorded in her notes.
There are certain conflicts in the evidence on this aspect of
the case. A.J.W. testified that prior to the incident he had not
been in trouble and that his mother had not spoken to him of the
possibility of losing his birthday party. That evidence differs
from Ms. Morand's record of what he told her on August 10, 2001.
Her notes document A.J.W.'s awareness that if he got into trouble
one more time, he would lose his birthday party at home.
Additionally, Ms. w. testified that her son had problems at school
on a regular basis and that, as a consequence, she told him he
would lose his birthday if he continued to get into trouble. Ms.
W. stated that she had also shared that information with the
grievor prior to the day of the incident.
Ul timately , I am
satisfied that both the grievor and A.J.W. were aware of the
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potential for adverse consequences if Ms. W. was told of further
problems experienced at sChoQi.
The grievor, on the evidence, failed to complete an Ouchie
.
Form on August 9, 2001 despite being aware that injuries were to be
documented on the day of occurrence.
She further delayed the
completion of the form until after she was approached by Ms. Morand
on August 10, 2001. If the grievor had initially forgotten to
complete the Ouchie Form on August 9th, as claimed, I would have
expected her to complete it right at the start of the next school
day on August 10th. This is particularly so given her assertion it
was foremost on her mind that morning to speak to Ms. W. about the
injury. I consider it significant that this was the first and only
time the grievor neglected to complete an Ouchie Form on the day of
the injury and that the omission occurred in respect of an injury
which she herself had caused.
I also accept the grievor was fully aware that parents were to
be informed of an injury to their child on the day of occurrence. .
On the evidence, the grievor did not tell Ms. W. of the injury on
August 9th nor did she raise it on the morning of August 10th when
Ms. W. dropped her son off at school. As was the case with the
Ouchie Form, the grievor did not communicate with Ms. W. about the
injury until after it became apparent that Ms. Morand was aware of
same.
I find it difficult to accept that the grievor simply forgot
to complete an Ouchie Form and to speak to the parent on August 9,
2001. In all of the circumstances, I conclude that the grievor
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deliberately failed to take these steps in an effort to hide the
fact she had caused injury to a child 'through inappropriate and
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excessive behavior. This conclusion is further supported by the
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grievor's ill-conceived "deal" with A.J.W. A.J.W. clearly
percei ved that he would lose his birthday party if he told his
mother about the injury. As noted, the grievor maintained that she
simply agreed not to tell Ms. W. about the push of C. It was the
substance of her evidence that she was not trying to hide the
injury from Ms. W. The difficulty I have with this assertion is
that the grievor's failure to complete an Ouchie Form in a timely
fashion suggests she was trying to conceal the injury and the
circumstances in which it occurred.
I observe that the grievor
acknowledged that if she, or indeed A.J.W., told Ms. W. about C.
being pushed, the information would likely lead to questions about
the injury and how it was caused. On my assessment, the grievor
used Ms. W.'s threat to take away the birthday party as a means to
obtain A.J.W.'s silence in respect of the incident resulting in his
injury. I find it extremely coincidental that this was the first
time that the grievor engaged in this type of an exchange with a
child under her care. I note that but for Ms. J's observation of
another incident on August 9, 2001, and her subsequent complaint to
Ms. Morand on the following day, the injury to A.J.W. might never
have come to light. I have also considered that the grievor was
somewhat evasive in her responses to Ms. Morand when the latter
initially confronted her about the Ouchie Form and whether she had
told Ms. W. of the injury.
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In summary, I have been persuaded that the grievor failed to
report the injury in a timel\ fashion, as required, and
took steps to keep the information from the Employer
,
that she
and the
parents of the child.
I was told that this was the first termination of an employee
at Sundowners Day Care and Resource Centre under this first
collective agreement. I have not found it necessary to comment on
all aspects of the investigation conducted by the Employer in this
instance. However, certain elements of the investigation merit
some comment.
At the meeting of August 21, 2001, the grievor was asked to
provide an explanation of two (2) incidents that had been reported
to the Employer. The first incident related to an allegation that
the grievor used inappropriate and abusive contact with a child in
her care.
The second related to an allegation that she made
improper and sarcastic comments regarding her dislike for a child
under her care in the presence of another child. The Employer did
not provide any detail or specifics to the grievor about the
reports.
The grievor was unable to provide any information on
either report as she did not know what the Employer was referring
to. In my judgment, it is more productive, in the disciplinary
context, for an employee to be given specific details of
allegations made against them. Not only is that more fair to the
employee, it enhances the likelihood of a probative response. More
importantly, it is apparent from the evidence that Ms. Hills and
Ms. Morand both knew at the time that another teacher, and not the
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-21-
grievor, made the improper comments regarding dislike for a child.
Nevertheless, the grievor wa~~still asked about the incident and
the question suggested that' she was the teacher involved. Clearly,
,
in view of the Employer's information at the time, the question
should not have been put to the grievor in the form that it was.
Articles 6.07 and 9.06 of the collective agreement speak to
when an employee is entitled to Union representation. They provide
as follows:
6.07 When any form/level of discipline is to be imposed,
an employee is entitled to be represented by a
Union steward.
9.06 If a member of management intends to interview an
employee and the purpose of such interview is to
be disciplinary, the employee shall be so informed
in order that a union representative may be present
at any such interview.
As stated previously, Ms. Craig interviewed the grievor on
Thursday, August 16, 2001 as part of the investigation conducted by
the Children's Aid Society in respect of this matter. The
interview was conducted at the King Edward School site. Ms. Morand
was present for the interview. There is a conflict in the evidence
as to whether Ms. Craig asked Ms. Morand whether she would like to
attend or whether Ms. Morand indicated to Ms. Craig that she would
be interested in attending. Ms. Hills had no advance notice that
Ms. Morand would be present for the interview and did not instruct
her to sit in. When asked prior to the interview, the grievor had
no objection to Ms. Morand being present.
It is clear from the
evidence that Ms. craig asked Ms. Morand about the Employer's
behavior management and stress management policies during the
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-22-
course of the interview. Ms. Morand did not, however, take part in
questioning the grievor abou~,the material issues.
The grievor asked for.Union representation in respect of her
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meeting with Ms. Craig. Again, there are conflicts in the evidence
on this point. They relate to when the grievor first asked for-the
representation and on how many occasions the request was made. Ms.
Morand, in any event, denied the request after previously being
advised by Ms. Hills that the grievor was not entitled to Union
representation as the interview was not disciplinary. What is
clear is that the grievor was upset that her request was denied.
I am unable to conclude from a strict reading of the
collective agreement that the grievor was entitled to union
representation at the interview of August 16, 2001. The meeting
was not convened to impose a form or level of discipline, as
contemplated by article 6.07. Additionally, the meeting was not
scheduled to permit a member of management to interview the grievor
for disciplinary purposes, so as to be captured by article 9.06.
Rather, the meeting was intended to provide the Children's Aid
Society with an opportunity to interview the grievor as part of an
investigation conducted pursuant to its statutory mandate. My
conclusion might have been different if there had been evidence
that Ms. Morand actively participated in the interview.
Following the meeting, Ms. Hills and Ms. Morand met with the
grievor and her Union Steward, Ms. Stephanie Garant.
At tha t
meeting, the grievor was suspended for the balance of the day with
pay. The grievor was later advised that same day that the paid
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suspension would be in effect until further notice. In the
documents confirming both of ~ese actions (Exhibits #13 and #14),
the grievor was advised that further disciplinary action up to and
.
including discharge might be implemented "pending the outcome of
the CAS investigation". The grievor was represented by Ms. Garant
and the OPSEU Staff Representative at the subsequent meeting with
the Employer held on August 21, 2001. In my judgment, the meetings
referenced in this paragraph are of the type contemplated by
articles 6.07 and 9.06 of the collective agreement.
In retrospect, I think that there were aspects of the
Employer's investigation that could have been better handled. The
deficiencies, however, are not material to the ultimate result in
this case. I am unable to accept the submission that the process
used was designed "to nail" this grievor.
The parties in closing each presented an argument premised on
their respective reading of the facts.
I have considered their
differing views on the facts in arriving at my ultimate conclusion
in this case. I have also reviewed the fOllowing awards relied on
by the Employer:
Municipality of Metropolitan Toronto and
C.U.P.E., Local 79 (1989), 9 L.A.C. (4th) 178 (Marcotte); Board of
School Trustees of School District Number 22 (Vernon) and Canadian
union of Public Employees, Local 523 (1994), 36 C.L.A.S. 21
(Taylor); Canadian Union of Public Employees Local 1068 and Perry
Rand Limited (2000),47 C.L.A.S. 462 (DeMont); The Providence Child
Development Society and Alberta Union of Provincial Employees,
Local 009/015 (2000), 62 C.L.A.S. 362 (Smith); Kennedy Lodge
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Nursing Home and Service Employees International Union, Local 204
(1991), 18 L.A.C. (4th) 38 (Davis); Extendicare Canada Inc. and
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S.E.I.U.. Local 532 (2002), 68 C.L.A.S. 188 (Davie); Versa-Care
. ,
Centre Georgian Helghts and C.L.A.C. (2002), 67 C.L.A.S. 352
(Levinson). These awards all turn on their distinct set of facts.
It is unnecessary to make any further comment in respect of same.
Ultimately, I find the Employer has established that the
grievor used inappropriate physical force with a child under her
care causing injury to the child, albeit accidentally.
Additionally, I conclude that the grievor failed to report the
injury in a timely manner, as required, and that she took steps to
keep the information from both the Employer and the parents of the
child. Put another way, I have been persuaded that she attempted
to cover up the incident so that her actions in causing the injury
would remain undetected. In so doing, the grievor violated Rules
#1, #6 and #18 cited in the body of the letter of termination dated
August 24, 2001. She further breached the trust the Employer must
have that its teachers will provide a safe, healthy and positive
environment for the children under its care.
In the final
analysis, I accept that the Employer had just cause to terminate
the grievor's employment. While this is an onerous result for a
young teacher at the start of her career, I was given no reason to
mi tigate the penalty.
As mentioned earlier, I might have been
inclined to consider some modification of the discipline if the
grievor had aCknowledged the existence of work related stress and
shown that such stress caused her excessive response, in whole or
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in part.
For all of the above rea,ons, the grievance is denied.
Dated at Windsor, ontari~ this ~~t~ day of feklJ411 ' 2003.
rm;v. W~
M.V. Watters