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HomeMy WebLinkAboutSchott 94-03-01 Concerning_an~a.tion Between: Community Living Oakville and Ontario Public Service Employees Union Grievance of R. Schott, dismissal I' Board of Arbitration J. W. Samuels, Chairman G. I. Campbell, Employer Nominee J. D. McManus, Union Nominee For the Parties Union M. Bevan, Grievance Officer R. Schott, Grievor , Employer H. R. Watson, Counsel A. Rotsma, Executive Director Hearings in Oakville, November 19, 1993; January 12 and 28, 1994 , , ,~." ,'::",'~.","2"", .- ", ",',! "" " , . "', ," -',~ "0-,,..,,- '.. '~..=-: -,," ',,' , ',' .-:,~",.+ """"",'. ~"""",','",h,';.'-"-':"'-'_",,""',,, . - -- ~ ,," £V In October 1991, the grievor commenced his employment at Community Living Oakville ("CLO") as a Residential Counselor. In late September 1993, he was dismissed, because of an incident which occurred on September 22, involving some injury to a resident (who will be referred to in this award as "X", for reasons of confidentiality). The grievor says that there was no just cause for his dismissal. 1 CLO offers support services for adults and children with a developmental handicap. It operates eight group homes in Oakville, providing a residence for a variety of clients. One of these homes is Tansley B, and this is where the incident occurred. X is' a resident in Tansley B. The residents who are served by CLO need care. Many of them cannot fend at all for themselves. Some have no verbal skills, and cannot express themselves. This Board of Arbitration accepts, without reservation, the proposition that the residents in such a facility must not be abused in any way; and that, if an employee does abuse a resident, normally the only appropriate response is to dismiss the employee. The Employer must be able to trust its employees not to abuse the residents, and to offer the high level of care required in such an environment. We could refer to many cases wherein arbitrators have accepted these propositions, but we will confine ourselves with mention of one of the awards referred to us by the Employer-Re Baptist Housing Society (Grandview Towers) and Hospital Employees' Union, Local 180 (1982), 6 LAC (3d) 430 (Greyell), at pages 437-441. The issue in this case is whether the grievor abused or mistreated X. -- . ------..,"- 2 On September 22, 1993, the grievor was the sole counselor in Tansley B on the 4PM to midnight shift. There were four residents, including X. These residents were not known to present any significant problems, and the Employer had recently decided that it would be satisfactory to have only one counselor on duty on this shift. The grievor had a range of experience in the field of care for the developmentally handicapped, before coming to CLO. Commencing with several part-time and casual positions, he took the Developmental Services Worker Program at Humber College, graduating in the winter of 1990 with honors. He \yas a residential counselor at Oaklands Regional Centre from March through July 1991, dealing with clients with severe aggressive tendencies, and left because he did not want to work constantly with such people. He came to CLO in October 1991, and his immediate supervisor, Ms. c. J. L. Cramer, thought highly of his work, writing a recommendation in August 1993, which closed "I find Bob an excellent employee and admire especially the manner in which he advocates for people with special needs". X is a young man, who appears to be in his early 20s (we were not given his exact age). He has lived in Tansley B for 3 years. He goes into the community each day, taking the bus by himself, and works at a restaurant, doing dishes, cleaning and some cooking. He seemed to us to very personable, and all the witnesses who know him, including the grievor, like him a lot. He is one of the most highly functioning residents at cLO. Before September 22, 1993, he had never been known to do anything dangerous. He had a temper, but, at the worst, it would be vented by some yelling and perhaps a tantrum on "the bed, with much thrashing of arms and hands. At about 5 PM on September 22, he returned to the house from his job at the restaurant. He was not in the best of moods. It appears that there was some discussion between X and the grievor about the fact that --- -""",-:-" - 3 this was Wednesday and normally this is the day when X cleaned his room with his room-mate Y. X said that he had done the room on the previous Sunday, so it didn't need cleaning this Wednesday. Later in the evening, the grievor went upstairs with X and Y to the room shared by the two residents, and the grievor found that the room was in sore need of cleaning. X was not pleased with this. X was asked to go downstairs to empty the dishwasher, and he did so. When he returned upstairs to his room, the grievor told him that he would get a demerit on his calendar for the dirty room (this would affect XIS month-end reward). It appears that, at this point, matters began to get ~eated. X insisted vigorously that he did not want to clean, and the grievor yelled at X that he should not lie about doing the cleaning on Sunday when the room was so dirty. Y was sitting on his bed in the room. X became furious. With no warning, X grabbed a long, pointed set of scissors out of his dresser drawer. The grievor says that, at this point in time, X was yelling incoherently; and the testimony of X suggests that this was the case. X recalls being very, very angry. We accept the grievor's testimony that X pointed the scissors at the grievor, and the grievor backed away towards the door out of the room; and then, in short order, X pointed the scissors at himself. The grievor testified that this made him freeze. He was now very afraid that X might hurt himself, so he did not leave the room. Then X threw the scissors at the grievor. The grievor ducked, and he was hit but not cut. The grievor knew that this pair of scissors was not X's normal pair, and that it was very likely thàt the other pair of scissors would be in its usual place in XIS dresser (X testified under cross-examination that the second pair of scissors was in the dresser). The grievor testified that, at this point in time, he really didn't know what to do. All he could think of was that he needed to take physical control of the situation immediately. He moved toward X, and X was moving toward him (the grievor testified that he didn't know why X was moving this way-it might have been to engage. the grievor, or perhaps X ~. - - --"" ,,- ' - -- 4 was going ~o try breaking and jumping out of the large window in the room; X testified that he was going to get a book). At the foot of XIS bed, the two met. The grievor grabbed X by his shirt front and pushed him back into his bookshelf, dislodging the top shelf from the pegs holding it in place (but the shelf did not fall down). X immediately ceased his aggressiveness and whined that the grievor had broken his bookshelf. Now the grievor wanted to put some space between the two of them, so he turned around, still holding X, and pushed him towards the open space beside XIS bed. X fell to the floor, hitting his head on the comer of the wooden rail along the side of his bed. The violence was over. The grievor , immediately looked at XIS head, and found that there was a slight indentation in the forehead, but no blood. The very beginning of a bruise was showing on XIS cheek. (A few days later, as generally happens with this type of injury, the bruising was complete and X had a very angry, discontinuous red slash, running down his forehead and continuing down his left cheek on the other side of the eye socket; and a sizable bruise under his left eye-the pictures we received in evidence confmn that XIS injury came from one blow, received when he fell against the comer of the bed side-rail, making contact simultaneously with his forehead and left cheek.) Looking back at this incident, the first question which arises is whether the grievor did something culpable by pushing the matter of the room cleaning up to the point where X became so furious. It appears that the grievor was faced with making a judgment in the situation. On the one hand, he knew that he ought not to push the room cleaning issue" to the point of making X lose control. It is critical to prevent a crisis situation from occurring in the fIrst place. On the other hand, the residential counselor is not supposed to simply let the resident rule the roost. In the Addendum to the CLO "Client --- ~"..." - -- 5 Welfare Policy", we find a list of "dos and donlts", and number 17 says that the counselor should not allow the situation to degenerate into !IN 0 Control. Let anything happen", but rather should try "Establishing Routines. People thrive best on order and regularity, and should know what to expect". When the grievor told X that his calendar was marked with a demerit for XIS failure to clean the room, this was consistent with rule number 16, which says that it is wrong to "Back down on carrying out punishment", and the counselor should try "Confronting. Tell the person in a very clear way just how their behaviour is causing you a problem and how you feel about the misbehaviour." With respect to the need to avoid a crisis in the first place, it is important to bear in mind the grievorls history with X. They had known each other for a long time. The grievor testified that, when he fust met X, X manifested his anger in harmful ways-rather than venting and yelling, X would steal things, or do ,other wrong things. The grievor began encouraging X to yell, to let out his anger, and this worked. X would sometimes threaten violence, raising his fists and saying that he'd punch the grievorls face in, and the grievor would reprimand him, telling X that he could yell at the grievor at any time, but no threats were permissible. X was better after venting, and this improvement would last several days. The grievor testified that his immediate supervisor, Ms. Cramer, and XIS therapist knew of this technique and its success. So it was not unusual for X to be angry and to vent his anger, and for the grievor to encourage X to vent his anger. The grievor raised the matter of cleaning the room several times' over several hours, giving X time to think abol,lt it and to come back to it. When X first came into the house, that evening, around 5 PM, he acknowledged that it was the regular room-cleaning day, but said that he had done the job on the previous Sunday. Ifwas some four hours later that the grievor found that the room was not clean and asked X once again to ~ . " - '" '. - , ....-... - ' , --"- ~"-- -- 6 clean the room. When X became upset, the grievor sent X down to unload the dishwasher, to defuse the issue of cleaning the room. When X returned, the grievor told X that he had marked a demerit on XIS calendar. In our view, up to this point, this course, of conduct, while insistent, was by no means abusive or harassing. The grievor's firmness was well within the suggested guidelines found in points 16 and 17 in the Addendum to the CLO "Client Welfare Policy". Did the grievor then go too far in responding to X by yelling at him that he should not lie about cleaning his room? In our view, it is arguable that the grievor used poor judgment at this point. The Addendum to the I "Client Welfare Policy" says, in point 6, that the counselor should not "Yell", but rather should try "Distancing. Know when you are too upset to handle a situation. If possible try leaving the immediate scene." The grievor at this point was not simply yelling in order to encourage X to vent his anger. The grievor was trying to make his own point-"don't lie"- and he was doing it in a way which demonstrated that he too was upset. He ought to have "distanced" himself instead. This was an error in judgment. However, XIS sudden escalation into incoherence, and his grabbing the scissors, and his threat to use them on the grievor or himself, were totally out of character. The grievor could not have expected this to happen. There was no reason for the grievor to think that his handling of the room-cleaning issue would lead to the crisis which developed. Rather, given what we heard from every witness about XIS behaviour in the past, one would have expected X to either do the cleaning, or to have a harmless tantrum. Instead, in a manner which was entirely out of character with all his past conduct, X went into a dangerous rage. ' In our view, while the grievor can be said to have made an error in judgment, it was not an error which could have been foreseen as leading to the severity of crisis which it did. He was dealing with a resident whom he knew and liked. It was reasonable for the grievor to think that X's -"" - -- ~--- -"- -----.. "£V 7 behaviour was predictable; and one would have predicted that, at worst, X would have a harmless tantrum. Furthermore, while there was an error in judgment, it could not be characterized as "mistreatment", or "neglect", or "abuse". The grievor had no intention to harm X, or to insult or humiliate X, or to distress X-the grievorls sole purpose was to bring home to X that he ought to tell the truth, and to make clear to X that it was not acceptable to lie. The grievor erred in his m~:mner of communication, but he did not mistreat, neglect, or abuse X up to this point. Thus, we come to the grievor's actions after X produced the sharp- pointed shears. And we begin this part of the award by recording several conclusions which seem very clear to us from the testimony we heard Firstly, in our view, none of the grievor's actions were taken in order to retaliate against X, or to counter-attack against X, or to punish X, or to hurt X in any way. We have no hesitation in saying that the grievor's entire efforts were devoted to gaining control of the situation so that X would not harm himself or anyone else. Secondly, the injury to X resulted by accident, when he lost his balance after being pushed to arm's length by the grievor. The grievor never intended that X would fall, nor did he intend to push X into the bed. Thirdly, there is no satisfactory and accepted method of one-on-one restraint of an adult. This was agreed by the Employerls witnesses, the grievor himself, and is in accord with what is found in the manuals on Nonviolent Crisis Intervention, which is taught to all employees at CLO. The issue is whether it was appropriate for the grievor to use force at all, or whether he ought to have simply left the room with the room- mate Y at some point after X began wielding the scissors. - ,,- - -----, - ' "q- ..- 8 The Employerls witnesses were adamant that, under no circumstances, would they have engaged in solo physical intervention. Inge Secor is the Residential Manager at CLO, and is the instructor for the course given to employees in Nonviolent Crisis Intervention. She testified at length about the need to defuse a situation, and the ways to do this in a nonviolent way. When she first learned about the incident between the grievor and X, she was immediately angry when she read in the grievor's Incident Report that the griever had pushed X. This was just cause for dismissal- on its face, without knowing any more about the situation. In her view, there are no circumstances which would justify pushing a client. When she was aSked in cross-examination what she would do if a resident broke a glass and threatened suicide with the sharp edge, her answer was that she would talk to the individual; she would think about the situation; but under no circumstances would she touch the resident. When asked what a lone counselor could do if a resident was about to grab a weapon, such as a pair of scissors, she replied that- there could be no hands-on restraint. Toby Goldenberg, a Residential Counselor at CLO, testified in the same vein. Indeed, she was asked what she would do if she was alone in a locked room with two residents and one of the residents was attacking the other causing injury-she would limit her response to trying to talk the attacker down. We find this total negation of physical intervention to be astonishing. Take the situation suggested to Ms. Goldenberg-it may well be that the counselor could successfully disarm the attacker or stop the attack, yet she would simply stand by while serious injury was caused to the victim. Clearly it is best to use proven crisis prevention techniques, and it appears from the evidence we heard that the CL9 training program is rigorous and effective. And, if physical intervention is necessary, it ought T 9 to be done by a team. But this does not mean that there will never be situations in which it becomes necessary to take physical action alone. We have had the opportunity to review in some detail the Instructorls Manual and the Participant Workbook for the course offered at CLO on Nonviolent Crisis Intervention (National Crisis Prevention Institute, Nonviolent Crisis Intervention, 1987). This review suggests to us that we are correct in our understanding that there may be rare occasions when a counselor may take solo physical action. In particular, we were interested in the discussion of "Nonviolent Crisis Intervention: A Practical Approach for Managing Violent Behavior" in the Participant Workbook. The discussion begins with a distinction between two forms of aggressive behavior-verbal acting out, and physical acting out. The Workbook says (at page 2s, with underling added to emphasize the particular points relevant to our discussion): -'.- ~ . £v Two Forms of Aggressive Behavior As a general rule, there are two ways a hostile person will vent his or her aggression or hostility: verbally and physically. This is one of the essential tenets of managing aggressive behavior which at first seems obvious, but upon closer examination is a critical key to intervening Clarification of this point allows the staff member to begin formulating concrete guidelines regarding the procedure utilized during interventions. These two types of "acting out" behaviors often become somewhat muddled or confused and are not separated from each other. This leads to inappropriate actions" on the part of the staff intervening in the situation. For example, let us assume that we have an agitated person in an emergency room and his agitation escalates to the point of verbal screaming and yelling at select staff who are present. Occasionally one will see staff overreact and ;:"~. dl --- -,--,.. .- -- 10 , ii attempt to use a "hands on" (physical intervention) strategy in an effort to calm down the individual. This staff action may actually precipitate a "physical acting out" episode. In attempting to use a hands on approach, the staff has escalated the personls behavior into a more difficult and more dangerous level. An appropriate analo gy is running up to a fire and throwing gasoline on it in an attempt to put the fIre out. It does not work, and makes matters more difficult to manage. n th r i e f th c in we v t ~ho may attempt to utilize verbal i~tervention to saf~ly mana~e ~hysicalJy actin~ out person. Worqs are an ineffective means of intervening wþen a person is hittin~. bitin~ or çhQ.king you. In many cases tþ.e person's auditory .Q..hanne~own ancL.tÞ~y cannot hear you during the peak of the violent outburst. The ~here is attempting to use a squirt gun to douse a bonfire: it is ineffective. Therefore, the first principle which must be established is: Avoid overreaction and underreaction. Use verbal intervention skills to intervene with a verbally acting out person. However, ~e aggression becomes physical. you must a1£!Lhave in your re,pertoire o~ ~ysicat intervention techniques to control tillulhysicat acting out Qd1avior. This section ends with a small figure of two lines: Verbally acting out................ Verbal Intervention Physical acting out................. Physical Intervention Thus, it is clear from the outset that it is critical to intervene in the way best suited to the type of behavior exhibited by the client. Physical intervention is recommended if the client is acting out physically. - -- '-- . .. ' 4" -- 11 The discussion then proceeds to the "Four Levels of Crisis Development", carrying the reader through "The Anxiety Level", and "The Defensive Level" to "The Acting Out Person", and on to "Tension Reduction". In our case, once X grabbed the scissors and wielded them as he did, the grievor was faced with an "acting out person". In this situation, the Manual says (at pages 4s to 5s, again with underlining added to emphasize the points particularly relevant to our discussion): The Acting Out Person If you do not impose and enforce reasonable limits, the individual simply refuses to follow your directives, or you arrive too late during the crisis development process, you may encounter the third level of behavior: the acting out person. Thi eh vi r 1 v 1 i fin a t 1 10 ill contro~h usuallY involves physical ~ggression. The indi~ is no longer atiliL!Q. controLhimse1f and verbal aggression turns into ¡i.hysical assau1L.Ihe person may assault, staff. Q!þ.er people or even attempt to harm himself. Nonviolent Physical Crisis Intervention A1..!Þis point anq no sooner. you must physically controLtÞe person's hcl1avior until he can regain controlilllJris own. Nonviolent physical control and restraint shmiliLbe used only as a last resort. You have now reached the point where all verbal means of managing the situation have been exhausted. The person js no longer responding to reason. andJte may present a danger to himself. ~ or other people in the area. You want to avoid physical intervention for several reasons. First, there are the obvious legal implications of physically restraining someone. Also, physical intervention can be dangerous to - -- ~" u "_T" -- 12 the individual and staff. But equally important, you don't want to use a hands on approach until it is absolutely necessary because you run the risk of escalating a situation which might have been defused through verbal means. It should be stressed that physical intervention, used' appropriately and used as a last resort, can be as therapeutic as any other intervention tool. By utilizing safe, noninjurious restraint techniques, you are providing the ultimate care and welfare for the individual by initiating physical control for his or her own safety. What could be more therapeutic? If physical restraint is utilized with the interests of care in mind, in most cases the person will realize this and it will aid you in your therapeutic treatment plan. Physical intervention should never be utilized as a punitive measure. Unfortunately, pain compliance techniques are still a part of the restraint technique repertoire in some agencies and institutions. Besides the ethical questions, pain compliance produces negative feelings between the individual and staff. When a person loses total control' he often does not remember what happened during his outburst. If the first sensation he experiences when regaining control is pain, he will remember that pain. This will lead to difficulty in managing the individualls behavior during future interactions. Staff must remember that losing control of one's behavior is an unpleasant and frightening experience. It is sometimes difficult to keep this in perspective when the aggression or violence is directed toward you. However, most physical acting out in human service environments is not premeditated violence, but simply an explosion of pent up energy. The staff are simply the object of the explosion because they happened-to be present at the time. - . , ..,. ----.-.. ."- -- 13 Now, the grievor knew that restraint out to be done by a team. Indeed, he acknowledged readily that there are no satisfactory one-on-one restraint methods to be used on an adult. So what was he to do? He was clearly faced with a dilemma which had to be resolvedin moments. He had a critical judgment to make-he could try to leave the room, taking the room-mate Y with him, in which case X may have done serious harm to himself; of he could attempt to restrain X, to bring X under physical control, risking harm to X and the grievor in the process. The Manual has this to say about the intervention itself (at page 7 s, again with underlining added): T earn Intervention All of the intervention concepts are best utilized when a team of professionals intervene. The concept of team intervention is not new. However, when it comes to intervening with the potentially violent person, the team concept tends to break down. Example: security personnel often feel as if crises get "dumped into their laps" only after other staff has mishandled the onset of the crisis and now requires" brute force" to manage the situation. On the other hand, some staff feel security tends to intervene with too much of a heavy-handed approach. This breakdown in teamwork occurs due to the fact that there is frequently a fundamental lack of communication regarding exactly what a crisis intervention team is supposed to do and who should be involved in the team. Good "teamwork" is a product of two ingredients: communication and experience. The questions "Who should be on an intervention team?" and "What should the team do?" need to be answered before one can expect cohesive team intervention. Why Team Intervention? 14 ---~.....".<7' -- It is always advisable to intervene as a team of two or more ~e situation djctates or gemandLSQ}o intervention. If you are alone on a nnit and an in~ a ~lass anctJ):lreatens suicieJe you may feel it is. in your best I2tQ.fessionaLj,ydgment. a wise qecision not to leave the scene to obtain assistance. Under all other circumstances, it is best to intervene as a team. Thus, the Manual recognizes that it may be necessary in some situations to undertake a solo intervention. This possibility was simply not acknowledged by Ms. Secor, nor Ms. Goldenberg, and, in our view, their position is not in accord with the Manual. The grievor had to make a judgment call. He chose to try to restrain X, in order to stop X from harming himself or someone else seriously. We know the results of his actions-X was bruised when he lost his balance and fell against the siderail on his bed. Was this judgment call a culpable mistake? We do not know what the result would have been if the grievor had chosen to flee the room, taking Y with him. Would X have harmed himself badly? Would he have picked up the thrown scissors and slashed himself? Ms. Secor, Ms. Goldenberg, and another counselor, Ms. O. Bradshaw, are quite certain that X would have calmed down once left alone in the room. But all three of them would have said before September 22 that X would never have brandished a long, pointed scissors and thro~n them at a counselor, just because the counselor insisted 'that X clean up his room. XIS behavior in his room that evening was outside the range of all expectations about him. What if X had been left alone and he slashed himself grievously? This would be a far worse conclusion to the whole scene than what actually happened. ; . --- --....~" "41'" -- 15 And what if the grievor left the room and Y refused to leave the room (or there just wasnlt time to get Y out of the room) and somehow, through a sheer accident in the midst of his continuing rage, X hurt Y badly? Again, this would have been a far worse conclusion to the situation than the injuries X suffered. In our view, the grievorls own comments now about the decision he took on September 22 are the most believable and acceptable-he testified that, after the grievor threw the scissors, he wasn't really sure what to do; and now, on reflection, he's not sure what he ought to have done. And, having heard all the evidence, this accords with our view. We're just not sure what was the best thing to do in the situation. It was a very difficult judgment call that the grievor was required to make, and he had to make it in brief moments, with no time for reflection. In these circumstances, we cannot possibly come to the conclusion that the grievorls conduct was culpable. The grievor did not throw a punch at X. The grievor had no intention to harm X. The grievor's whole effort was aimed at bringing X under control for the safety and well-being of all concerned. If an employee is called on to make a difficult judgment call in a case like this, and the course of action decided upon results in unintended minor harm, this is not just cause for discipline. In sum, we find that, at most, by yelling at X that he was lying about having cleaned his room, the grievor may have been too insistent with X in the matter of cleaning up the room. But there was no just cause for dismissal, nor for any discipline beyond filing this award in the grievor's. personnel record. We allow the grievance and order that the grievor be reinstated in his employment with Community Living Oakville, and that he be compensated for any monetary losses he suffered as a result of his ~ .. - "-~. ' .4"" 16 dismissal. We will remain seized to deal with any matter which arises out of these orders. Having come to this conclusion, we ought to comment on two additional points. Firstly, the Employer drew our attention to a letter written by the grievor to Mr. A. Rotsma, the Executive Director of CLO, on August 31, 1993, shortly before the incident with X. The grievor was deeply upset at the time by the possibility that he might be moved to another house, and he wrote his confidential letter "as a last ditch effort" to avoid being moved. He intended to leave the employ of CLO if forced to move. The letter made certain allegations about the conduct of colleagues, and expressed the grievorls opinion about the situation in the house to which it was proposed he move. In the end, Mr. Rotsma did not move the grievor, because there was smoking in the proposed house, and this might affect the grievorls health. The Employer suggested that the letter was unprofessional and that we ought to consider this before reinstating the grievor. In our view, all that the letter demonstrates is that the grievor has very strong feelings about certain situations and certain types of conduct, and he knows that he would not be able to function well in those circumstances. This does mean that the grievor is not as "flexible as some other employees may be, and there may come a time in the future when the Employer will require more flexibility of the grievor than he is able to offer" (for example, if there was a cut-back in operations and all the positions acceptable to the grievor were occupied by employees with greater seniority who refused to move). But this possibility does not affect us now. Thegrievor can go back to Tansley B. . " ,) -- -- "C- -- 17 Secondly, there was some concern expressed during the hearing about the possibility of the grievor working with X again. We do not have concerns in this regard. The grievor testified that, about one week after the incident, he was sitting in a restaurant near the house, having breakfast with Ms. Goldenberg, when X and Y came by. Y came over immediately to give the grievor a big hug, but X was reticent. The grievor proffered his hand, and X came over and gave the grievor a hug. The grievor next saw X at the first day of our hearing, when X testified. That night, X phoned the grievor. X was sheepish. He asked if the grievor was angry, and was assured by the grievor that the grievor was not angry, that the grievor understood that X had to tell his story. X asked the grievor if the grievor would be at his birthday party, and the grievor replied that he would come, if it was OK with Inge Secor. But the grievor never heard about the party again, and so missed it. He sent a gift. Before Christmas, the grievor phoned room-mate Y's mother to talk to her about the baseball glove he planned to give Y (the grievor had promised this long before, and wanted to be sure that Y wasn't going to get a glove from someone else). YIS mother asked the grievor if he would visit her son at Tansley B over the holidays. Y would be there with X. The grievor checked with his former supervisor, Ms. Cramer, and was told that it would be permissible to meet the boys at the nearby mall, but not appropriate to meet them at the house. So the grievor had a pleasant afternoon of bow ling with X and Y. From the outset, he made it clear to X that they could not talk about the incident or "the court thing" (meaning' . .. ,'!} 18 our arbitration he-aññg). ' They woûld lèâve the affair behind them. And they did, and got along fine. We think that they will continue to get along well. Done at London, Ontario, this 1st day of /"-1~ cf... ' 1994. . / .' ...- ./ I~ i S 4-- .¡; ~... 7(.. ~ C./ . 1 G. 1. Campbell, Employer Nominee ..--------~ . / ....../ fL4~ !L/(C:.:-t.-t.L-<...-j. J. D. McManus, Union Nominee " t' .. .;.. - - ~. "- DISSENT OF G. !. CAMPBELL IN THE MATTER OF AN ARBITRATION BETWEEN COMMUNITY LIVING OAKVILLE AND THE ONTARIO PUBLIC SERVICE' EMPLOYEES UNION (Grievance of R. Schott, Dismissal) wit 11 t h(' greatest of respect to my colleagues, I regret tha,t r can not i 0 i n with them in this award. I feel very strongly that my co ¡ I €,i'ICJues are wrong, and that returning Mr, Schott to Community Living O~kville is not in the best interests of the residents. 1 dqrt'P with my colleagues' statement at page 1 of the award, that thc' rE'.:.ldents in a facility such as Community Living Oakville must not be abused in any way, and that if an employee does abuse a r~!:ident, normally the only appropriate response is to dismiss the ('mp 1 oYC(!. The question here is whether resident X was abused. My <.:0 I 1 E'é ql1(;~~ conclude that X was not, and I come to the opposi te L~(JIH ~ 11m ion. I can come to no other conclusion from the evidence we tw; nJ . Tn 1"1r".qin wLth, for reasons which I do not understand, my colleagues qiv(' virtually no weight to the evidence of resident X. Had they qivf'n w~iqht to resident X's evidence, they could not possibly have comc' to the conclusion they clid. r found resident X t.o be ror'thriqht and entirely bel.ievable in giving his evidence, and I tCHHlct the grievor to be just the opposite. 1'111' I.~r i t i cally important evidence of X was that the grievor got mad i\t him lor. not cleaning his room and swore at him, and that the <J r i c'vor wòs blocking the doorway and would not let X go to the wè)!:hrooln. X reacted by throwing the scissors at the grievor, and tit!' qrievor got mad at x for doing so. (At no time did X suggest tt1ilt" t)~ did not throw the scissors.) X then stated that the C"J r i ('vo r jumped across the bed and pushed X hard against the b()( ~;l:m;~?, dislodging a shel f. X then stated that the grievor pu::h<'d X hard a second time, towards X's bed. The photographs we wC"r'c' q iven of X's face clearly indicate that X suffered severe bruising. ." ,1 --'--- . c- - ~ _. -- 'I'tw qrievc)r's version of events is so different that both versions cannot be true. The grievor claimed that after the scissors were thrown, he went around the end of X's bed in order to restrain X, élnd cf;W(\ X a sl ight push into the bookcase. The grievor cIa i med t.h;Lt é'lt this point he pushed X qently a second time, not in the din'c..:tion of-the bed, to give each some space. The grievor then <:1.. imf:'c.t thAt X turned 180 deqrees and dove as if trying to dive on hÍ!~ b4".d, but missed and hit the railing of the bed. WhCJ!;(\ vf'rsian at these events is accurate? I believe X, since he h;HI ~bp,ol utely no reason to fabricate a story. Furthe'rmore, X' s vC'n:ion of events is consistent with the. grievdr being angry, as X ~;il i II he was, whereas the qr ievor' s vers ion suggests a person who WiH; nct i nq with a cool head. I would also note that the qrievor i n<1 i (:i\t(!d in his report of the incident that he apologized to X for 1 m: i nQ h í I:; temper, and in fact toldmanaqement that he acted like ë\n i rri\t" i<Jnal parent and not like a trained counsellor. In fact on ~';(!pt ,,-mbp r 2:3 , the grievor told manage.ment that he needed a "p:;yc..~hiiltric holidaytt, and that he felt he needed some psychiatric iHHõ i p,tanco. Moreover, the grievor told management on September 23 their t\(~ did not feel he could go back to Tansley B anymore and that it We'lll) d not be in X' s best interests to see the grievor. Wh"t iB even more telling about the grievor's version of the criticnl events is that at the hearing, for the very first time, mëH1;I<)emE!nt heard from the grievor that X had first pointed the !-H..~il;'8()rl; tit himself., and that X's hand was shaking as if he was tJo i nq t.o stab himself. The grievor claimed at the hearing that th i:: r(~.\ 11 y alarmed him, and that his first concern was for X' s ~;í\ I ('t.y. Furthermore, the grievor claimed that another reason he plH.:hed X HS he did was because the grievor believed X might try to jump out: of the window and the griever wanted to ensure that X was .bl()('kad from doing so. The qrievor also claimed that he knew there Witl; í\nother pair of scissors in X's dresser, and that he ha.d to m"~:(' ~nl1.e X didn't qet to them. 'l'h(I!.:é' .n.!) clearly very important factors in th is whole case, and it ~;t t-il i n~ the bonds of credibility that they would first be raised at t IH' hC?i'l r i nq, They were not mentioned in the grievor' sine ident r'C'port, and they were not mentioned in any of the discussions the qrirovor had with management regarding the incident. I believe they W('l rop n()t. ment iened earl ier because they never happened, but t:.hey C:('f.të'\ in I y de much to enhance the griever's version o~ events. WI1¡!l n.'", L ty happened? By the griever's own admission, he agrees the\ t ht' ~,;hould not have forced the issue with X of X cleaning his rOCJ( ItI. [m:tead of backing away from the whole issue, as counsellors ,HOC' t p, i ned to do in such circumstances, the grievor yelled and rlw( r~ ~t X and allo~ed the situation to get out-af-hand. -~ ,- ~ ~~~7f~r~i~~.~~- . ". -.-,..., ' - - - --.-....... ... ' ÆT -~ - -- bel iove that it became a question of whose will would pn'dominate, and the grievor decided that for some reason his must. 'J'hat started the whole incident. I believe that the grievor did gE't- mad, and. badly overreacted to a situation that he had himself <.::n'ated. I believe that he did jump across X's bed, and that he puf"ohed X hard not once but twice. I believe that it is very ~i~ni(icant to this matter that the griever was angry, He said so in h i~; report otthe inoident, but he then said in cross- f")("aminiition that he did not. Obviously, reacting in anger is not Whdt It counsellor should clo. why would he first say he was angry, ¡.H1d I at~~r deny it? 1 llel ieve that the griever's pushing. of X led directly to X's injuries, ,and that is a clear case of abuse. The grievor created thE' situation, then qot angry, and hurt the resident. I can come to no other conclusion. fiiCi 1 it i.es such as Community I.tivinq Oakville must maintain very h iqh standards of employee conduct qiven the nature of their clj~nts. The grievor's conduct fell well below these standards, And h~ ~hould not be allowed to again work in such a facility. 1 h(~l ieve the majority are wrong in reinstating this individual, And ( <;an only hope, for the sake of the residents and their fHmi¡ iest that there are no further incidents. I ::t10lJ ld mention that we received in evidence a letter that the qriE'vor had written to the Executive Director of Community Living Oë1kvillu some three weeks before the incident. The letter conçarn~d a potential transfer of the grievor to another house. Thc> I !'.tt.er is highly uncomplimentary about various individuals within community Living Oakville, and is signed "sincerely Pissed ot tho r am not a psychiatrist, but the whole tone of that letter, ¿lrnl the way in which it was signed. do not indicate to me a stable individual. . I t i nd j t bewildering that my colleagues simply 'give no credence to"-)=,-,? .'~~f~. X'~; evidence. There is just no basis for ignoring it. In fact,<cX~:~i::-:;l/~>. ~~i' ie! i 11 his evidence that he did not want the grievor to look aft~:r,,'.è:'~<:7:""':- him (>vt>r again, and this is totally ignored by my colleaques'.:;,Ji2..~ . "i;., l~.H'I my <;olleaques possibly believe the evidence of the 9riev<?:r~- t n how X now feels about the grievor, and ignore the :/dL pv i<l('n(.~~ of X? ... 1 would have. dismissed this grievance.