HomeMy WebLinkAboutBredahl 05-07-26
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MOL File No.: AN500782
IN THE MATTER OF AN ARBITRATION
BETWEEN:
COMMUNITY LNING NORTH HAL TON
(Hereinafter referred to as "the Employer")
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 268
(Hereinafter referred to as "the Union")
AND IN THE MATTER OF THE GRIEVANCE OF CHARLENE BREDAHL REGARDING
ALLEGED UNJUST SUSPENSION.
SOLE ARBITRATOR:
Gordon F. Luborsky
APPEARANCES
For the Union:
Mitch Bevan, Grievance Officer
Pat Honsberger, Staff Representative
Charlene Bredahl, Grievor
For the Employer:
André R. Nowakowski, Counsel
John F. Bedell, Executive Director
Margaret O'Neill, Director, Finance & Administration
HEARING DATE:
July 25, 2005
Toronto, Ontario
DECISION RENDERED:
July 26, 2005
AWARD
[1]
The Union's grievance dated May 24, 2005 alleges that the Grievor, Ms. Charlene
Bredahl, was unjustly suspended for four weeks without pay and trans felTed to a different work
location in violation of the collective agreement. The parties agreed that I was properly
appointed and had jurisdiction to decide this dispute.
[2]
The following facts are agreed. The Employer operates a number of facilities providing
support to residents living with serious disabilities who are unable to care for themselves. In
many cases, these individuals substantially depend upon their caregiver for assisting with all of
the elemental functions of life; including bathing, dressing and feeding. The Employer has
policies governing the conduct of its caregivers, including prohibiting the administration of any
medical procedures to residents without authorization.
[3]
The Grievor has been employed for approximately seven years as a caregiver responsible
for supporting the residents in one of the facilities operated by the Employer. Until May 2005 she
had a clear disciplinary record.
[4]
The Grievor is also diabetic and carries portable testing equipment to check her blood
sugar as necessary. This consists of pricking her finger to extract a drop of blood onto a paper
strip that is fed into a digital reader. On or about May 3, 2005, she perfonned a similar test on a
resident under her charge. She had no authorization to do so, nor did the resident specifically
request the procedure. There is some question whether the resident was even capable of giving
infonned consent.
Page 2 of 3
[5]
When confronted about the incident by management, the Grievor explained that she felt
the resident was at risk for diabetes and she wanted to check to make sure the resident was not
suffering from that disease. She believed she was acting in the best interests of the resident and
did not mean to cause any harm. In the course of discussing the incident with management, the
Grievor also advised that she had perfonned the same procedure on another resident some four
weeks earlier who had asked to be tested: After reviewing the matter with management, the
Grievor recognized that she had violated the Employer's policies and that it was wrong for her to
have conducted such tests without authorization. She apologized for her misconduct.
[6]
The Employer imposed discipline consisting of a four-week suspension without pay and
transferred the Grievor to another facility. The Union and the Grievor acknowledge that the
Grievor acted improperly for which' some discipline was warranted, but that the level of
discipline imposed by the Employer was too severe in all of the circumstances.
[7]
While the Grievor's misconduct was serious, the Grievor's motives, immediate apology,
candid admission of wrongdoing and her previously clear disciplinary record may be considered
in detennining whether I ought to exercise my discretion under section 48(17) of the Labour
Relations Act, 1995, S.D. 1995, c. 1, Sch. A to substitute a lesser penalty. See, for example, the
well-known principles set out in Re Steel Equipment Co. Ltd. and u.s. WA., Loc. 3257 (1964),
14 LAc. 356 (Reville). In the circumstances of this case, given the corrective intention of a
progressive disciplinary scheme and, particularly, the Grievor's recognition and apology for her
wrongdoing, I have concluded that this is an appropriate case to exercise my discretion to reduce
the penalty imposed by the Employer.
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Page 3 of 3
[8]
The four-week suspension without pay is more than is necessary to impress upon the
Grievor the seriousness of her I!lisconduct. In my view a two-week suspension without pay
would suffice to make that clear. Moreover, the Grievor's disciplinary transfer seems more than
is required to make the point; particularly where there is no evidence of ill-feelings by the
residents towards the Grievor that might compromise her position of trust. Thus, it is my opinion
that it is appropriate to exercise my discretion to reverse that disciplinary transfer.
[9]
Accordingly, the Union's grievance succeeds in part. The Grievor's penalty is to be
reduced to a two-week suspension without pay and the Grievor is to be returned forthwith' to the
same position she held prior to the imposition of the discipline. The return of the Grievor to her
prior position does not affect any future transfer of the Grievor to a different location and the
rights of the parties in that event under their collective agreement.
[10]
The Grievor's disciplinary record is hereby amended in accordance with the foregoing
and she is entitled to compensation for any losses as a result of the reduction in her penalty. As
agreed by the parties, I shall remain seized in the event of, any dispute concerning the
implementation of this award.
DATED AT MARKHAM, ONTARIO THIS 26TH DAY OF JULY, 2005.
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- Gordon F. Luborsky, "-j
Sole Arbitrator