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HomeMy WebLinkAboutPannabecker 04-07-19 BETWEEN: BEFORE: FOR THE UNION: FOR THE EMPLOYER: HEARINGS: IN THE MATTER OF AN ARBITRATION 0' ~- 61o 1-00 ~ North Bay and District Association for Community Living (The Employer) - and - Ontario Public Service Employees Union (The Union) Grievance of Bonnie Pannabecker R. Jack Roberts, Arbitrator Will Presley District Grievance Officer Garry R. Bergeron Counsel North Bay, Ontario June 6; August 14 & 15; D~cember 2,3, 16 & 17,2003 January 26 & 27; March 11,2004 1 AWARD I. Introduction: The grievor, who had been a support worker with the employer for twelve years, was alleged to have committed acts of physical and psychological abuse against two clients. In line with its abuse protocol, the employer referred the allegations to the police for criminal investigation and also launched its own investigation. When the grievor was criminally charged with two counts of assault on the basis of the allegations of physical abuse, she declined on , advice of counsel to cooperate any further in the employer's investigation. In the light of the seriousness of the allegations of psychological abuse, the employer felt that it had no choice but to act on the information about them that it had at hand. On February 7,2003, it terminated the grievor for acts of psychological abuse. On February 10,2003, the grievor filed the grievance leading to the present proceeding. Thereafter, on July 16,2003, the grievor was acquitted of the criminal charges. For reasons which follow, I issued an order on March 31, 2004, directing that the grievor be reinstated to her former position of support worker. ll. Factual Background: (1) General: The employer is a large agency in North Bay, Ontario, that takes care of over 400 developmentally handicapped clients. Some of the clients are children who live at home and receive care and resource assistance from workers who visit them there. Others only come in for speech therapy and counselling. Still others live independently and are supported by the employer in their own apartments or houses. Some live in what is called associated living, which 2 is somewhat like foster care. Many, however, live in group homes operated by the employer in the community. The employer has six group homes with anywhere :&om four to 16 residents each. They provide 24-hour care, seven days a week, to clients who are 18 years of age or older. These are people with varying levels of ability. Some function at less than the level of a two year old. Others are much more able. The group homes are staffed by three different classifications in the bargaining unit. Support workers act like parents to the clients. They provide primary care during the work week, ensuring that the day-to-day physical, emotional, recreational and medical needs of the clients are met. Part-time workers generally staff the group homes on weekends and are expected to provide basic care to the clients, such as feeding and dressing them. Night staff provide overnight care and organize the clients when they get up in the morning. Some group homes only have a supervisor on the premises half-time during the day. Because of this and the nature of their duties, the staff at the group homes are not closely supervised and the employer must trust them to carry out their responsibilities in a compassionate, caring and professional manner. One of the group homes with a half-time supervisor was called the Kehoe residence. Six clients were cared for in the home. Two of these, L and K, were more difficult to care for than the others. In terms of development, both were at the toddler level. Ms. Jo-Ann Trehan, the Behavioural Therapist who was responsible for Kehoe, described L as severely developmentally disabled. She was small in stature, primarily non-verbal and very dependent. She sometimes needed assistance in dressing. She had to constantly be watched because she had no appreciation 3 of danger, in terms of crossing the street, touching the stove, or drinking potentially poisonous liquids. She also was diagnosed as having a form of autism and obsessive-compulsive disorder (OCD). In addition, L suffered from post-traumatic stress disorder (PTSD) and anxiety disorder. These conditions apparently were brought on by two prior placements in which she was abused. As a result of these disorders, L had developed certain disruptive behaviours. The onset of a disruptive behaviour or crisis would be preceded by self-talking, which was a form of muttering to herself, followed by burping and the making of "raspberry" noises. While going through these stages, L would become increasingly frantic to the point where she could not be still and calming medication had little effect. She would yell and scream and lash out at others. This would be accompanied by running around the home and up and down the stairs, slamming doors as if she was trying to get away from someone who was not there. She even would try to drink from the toilet. Once a crisis became full-blown, it was difficult for anyone to get her attention and calm her. At the time of the termination, L had been a resident at Kehoe for about six years. The grievor was the primary support worker for L for five of those years. As to K, Ms. Trehan described her as likewise needing total supervision. In terms of development, she was severely to moderately disabled. In addition, she had bipolar disorder ~d diabetes. Apparently, the most upsetting time with K was mealtime. To control her diabetes, it was important for her to eat regularly from all the food groups. K, however, did not like to eat vegetables. She was less fInicky about meat but preferred french fries and dessert. To induce her 4 to eat what she needed, the staff at Kehoe would serve her meal in stages: fIrst, the salad; then the meat and vegetables; then the potatoes; then bread and pasta; and, fmally, dessert (usually fruit). Often K would refuse to go along with the process, rejecting the fIrst servings and loudly demanding the more desirable ones. It was disruptive and fTustrating to the staff. (2) The Events leading to the Arbitration: In November, 2002, the staff at Kehoe met with their supervisor, Ms. Bonnie Gale, and requested to meet with Ms. Sherry Carnevale, the employer's Human Resources Manager. They said that they were fed up with one of the part-time staff who had not been pulling her weight and bullied her co-workers to keep quiet about it. When Ms. Gale reported this request to Ms. Carnevale, the latter decided that it would be better for her to meet with just two of the employees at the home who would represent the group. The two employees who were selected were the grievor and Ms. Patricia Moms, another full-time support worker at Kehoe. After the meeting, Ms. Carnevale decided to interview individually each staff member at the home. The interviews were conducted on November 28, 2002. Perhaps not surprisingly, the part-time staff member who was the target of the interviews virtually immediately found out that she had been turned in to management by the grievor and Ms. Moms. That evening, she called the grievor and told her that if she was going down, she would bring the grievor down with her. The next day, November 29,2002, the part-time employee made good on her threat. In the course of her own discipline meeting she made several allegations of physical and psychological client abuse against the grievor. Knowing the background to these accusations, 5 Ms. Carnevale was not inclined to believe them; however, some of them seemed so serious as to demand further investigation. They could not simply be disregarded. As required by the employer's abúse protocol, they had to be reported to the police and investigated by the employer. After reporting the matter to the police, Ms. Carnevale and the employer's Director, Support Services, Ms. Darlene Brooks, set about interviewing the grievor and her co-workers about the accusations made by the part-time employee. The grievor was interviewed on December 3,2002. She denied all of the allegations and, indeed, many of them were not substantiated by her co-workers. At least four, however, appeared to have a degree of confmnation. They were as follows: (1) Forcing L to sit in a green leather rocking chair in the living room for "crazy" periods of time; (2) Punishing L by forcing her to sit on the floor for long periods of time; (3) Forcing L not to vocalize; and, (4) Punishing K by denying her dessert and throwing out all of her food in front of her --including her meat and french fried potatoes -- when K refused to eat her vegetables, and instructing part-time staff not to give K her evening snack. None of the above allegations involved the use of physical violence. The only co-worker who alleged that the grievor engaged in physical violence against a client was the part-time employee who had threatened to get even with the grievor. As indicated, Ms. Carnevale and Ms. Brooks were not inclined to believe her. Following the police investigation, however, the 6 grievor was charged with two counts of assault. The sole witness against the grievor on these charges was to be the part-time employee. Nevertheless, Ms. Carnevale and Ms. Brooks considered the allegations that appeared to be conflfIIled to be very serious. According to Ms. Carnevale and the employer's abuse protocol, even if a support worker's actions involved only the psychological stressing of a client and not physical abuse, they still amounted to client abuse if they were part of a practice of domination, intimidation or coercion of the client, or were intended to demean or punish the client. Generally, it was the policy of the employer to tenninate any employee who was found to have maltreated clients by engaging in practices of this sort. However, if the actions of the worker were not part of a practice but rather the result of a momentary loss of ability to cope with a difficult client, the abuse protocol permitted lesser discipline to be imposed so long as it was consistent with re-establishing a safe environment for the client(s). Ms. Carnevale and Ms. Brooks were unsure about which of the two categories fit the grievor. From past experience, Ms. Brooks already regarded the grievor as somewhat stubborn and prone to take a stern or harsh approach toward clients. I With the information gained in the investigation, both she and Ms. Carnevale strongly suspected that the grievor had engaged in a practice of dominating and intimidating L, as well as a practice of punishing Land K whenever ¡This view was based in part upon a past incident in which the grievor allegedly took a pen from a client and threw it out in front of him. The client, who was Ms. Brooks' uncle, apparently had a pen fixation and had misappropriated the pen from elsewhere. The grievor was not disciplined for this action. 7 she ran out of patience with their behaviours. Still, it had been their hope that the grievor might have been forthcoming in her first interview with them about the allegations that seemed to be confirmed, and either acknowledged some wrongdoing or explained that her actions were momentary lapses in her conduct. For example, Ms. Carnevale said, if it had been found that the grievor only made L sit in the chair for long periods .on a few occasions it probably would only have warranted a discussion. Instead, the grievor denied everything. She did not, as Ms. Carnevale put it, "come clean" but rather appeared to be dishonest. They decided to give the grievor another chance and attempted to contact her to set up another interview. By that time, however, the criminal assault charges against the grievor were already pending. According to the grievor, she was instructed by her counsel in the matter not to çooperate any further with the employer's investigation. She did not respond to the employer's calls. When Ms. Carnevale scheduled the interview for January 30,2003, the grievor attended with her union representative but the latter advised Ms. Carnevale that on advice from her counsel the grievor would not answer any questions. Ms. Carnevale and Ms. Brooks regarded this as yet another attempt to "stonewall" the investigation. After that, they felt that they had no choice but to terminate the grievor's employment. On February 6, 2003, Ms. Carnevale sent the following letter to the grievor: Dear Ms. Pannabecker: As you are aware a complaint was made against you alleging that you abused a client in your care. As a result of the complaint the Association, as well as the 8 police, conducted an investigation into the matter. It is our understanding that the police investigation has resulted in criminal charges being laid against you. During the course of the Association's investigation we interviewed several Association employees. At these meetings your fellow employees informed us of other incidents of client abuse that they alleged you had perpetrated. These included, amongst other things, improperly disciplining a client, on several occasions, by forcing her to sit cross-legged in a chair for extreme lengths of time. They also alleged that you, in front of a client, threw out the client's meal and did not allow her to eat anything else even though the client is diabetic and requires her nutrition. In the process of conducting our investigation into these claims we met with you twice and provided you with an opportunity to discuss these allegations. During the fIrst meeting you did respond to our questions, however, during the second meeting you refused to answer any further questions. You stated that you were doing this at the insistence of your lawyer. You maintained this position despite having been informed by management that a decision would have to be made and that this decision would be made with the information at hand. We have now completed our investigation and have concluded that you were involved in several incidences of client abuse. This constitutes serious misconduct on your part. Furthermore, your actions not only violated the Association's Abuse Protocol Policy, but it is also our conclusion that you were dishonest during the course of the investigation. Apart from undermining your credibility this is also a breach of Article 21.03 of the Collective Agreement. Under the circumstances, and based on the information in its possession, the Association has no alternative but to terminate your employment for just cause as of this date, February 7, 2003. Yours truly, (Signature) Sherry Carnevale Manager, Human Resources Thereafter, on February 10,2003, the grievor filed the grievance leading to the present proceeding. The first day of hearing in the arbitration was held on June 6, 2003. On July 16, 2003, Lebel 1., of the Ontario Court of Justice, acquitted the grievor of both of the assault 9 charges that had been filed against her. He noted that the case came down to believing the part time employee or the grievor, and concluded that he did not believe the part time employee. He made a point of stating that he believed the grievor. After the decision came down, there was some negotiation between the employer and the union but a mutually satisfactory resolution of the grievance could not be reached. (3) The Evidënce at Arbitration. of Client Abuse Against L: In the course of the arbitration hearing, the employer called, in addition to Ms. Carnevale and Ms. Brooks, Ms. Jo-Ann Trahan, the behavioural therapist responsible for the clients at Kehoe, and two co-workers of the grievor, Ms. Patricia Morris and Ms. Krista Gibson. None of the latter three witnesses, however, gave any evidence clearly supporting the allegations that the grievor committed acts of client abuse against L. It will be recalled that these allegations were that (1) the grievor forced L to sit in a green chair in the living room for "crazy" periods of time; (2) the grievor punished L by forcing her to sit on the floor for long periods of time; and, (3) the grievor forced L not to vocalize. Ms. Trahan testified, inter alia, that as Lis behavioural therapist she developed with the assistance of other professionals and support workers, intervention strategies, plans, and behavioural directives to assist in coping with L's behaviours and crises. These protocols set forth, inter alia, what the staff should do when L was stable and how they should respond when she began to develop disruptive behaviours. For example, an intervention strategy that was admitted into evidence indicated that at the initial stage, when L's self-talk began to get louder 10 and she started to pace and make more frequent repetitive movements, staff should try to divert her attention by offering her different options, such as having a snack, folding laundry, reading a picture book or playing with her toys. If these efforts were not immediately effective, staff were instructed to limit LiS self talk by telling her to stop and directing her to sit and calm down. Should L not respond and proceed to the next level, sucking air and burping, flailing her anTIS, running around, jumping up and down and crying, staff were instructed to give L some calming medication and isolate her in the upstairs quiet area if possible. IfL still did not respond and proceeded to the worst level, in which she added to the foregoing behaviours yelling, banging ber head against the wall and biting, staff were instructed to administer up to the maximum dose of calming medication and, using repeated verbal direction, to try to keep L sitting in a lounge chair in the quiet area. When she became calm, staff would offer her a drink to signify that her cbair time was over. As to repeatedly directing L to sit, Ms. Trahan said that sbe did not regard repeated direction as "force." To her, force meant physically making a client do something. IfL was not directed to sit like this, Ms. Trahan said, she'd be frantic and wandering around. It was easier to supervise her and calm her if she was sitting down. Ms. Trahan added that there was a box of activities for L in the quiet area. Sometimes, she said, L would be up there with supervision from staff for one or two hours before she was calm enough to rejoin the others. Ms. Trahan went on to say that there was a period of time in the summer of2002 when questions arose about having L sit in tbe green chair in the living room as part of the routine of 11 the home and not to address her behaviours. Because L needed consta,nt supervision and could not be left unattended, staff often directed L to sit in the chair while they were engaged in other tasks, such as preparing dinner. The chair was visible from the kitchen. There were picture books and activities for L in a box beside the chair. IfL refused to comply, the behaviour protocol for her was activated and she would be directed once again to sit down, only this time in a dining room chair that was closer to the kitchen. The summer of 2002, she added, was particularly difficult for L because the consistency of her care was disrupted due to considerable staff turnover at the home. Ms. Patricia Morris, a full-time support worker who worked with thegrievor at Kehoe from 3 :00 p.m. to 9:00 p.m. for about two years before the terinination, testified that she frequently saw the grievor interact with 1. She said that when she first started, she was told by the supervisors, Ms. Kathy Ellis-Bowman and Ms. Bonnie Gale, as well as other staff to keep L sitting in the green chair in the living room where staff could see her from the kitchen, living room and other locations. Otherwise, L would try to raid the kitchen and take candy, coffee grounds or food that she was allergic to, or wander into someone's room and potentially hann herself. In the summer of2002, she said, L's raids on the kitchen became so problematic that staff had to put a padlock on the refrigerator. The staff had to keep an eye on her at all times. Ms. Morris further testified that nevertheless, she had some concern over keeping L in the chair so long. It seemed that the grievor had L sit in the chair immediately after L returned from her vocational program at the Adult Support Centre. This took place at around 4:00 to 4:30 p.m., 12 when the staff were preparing dinner. L would stay in the chair until dinnertime, which usually took place about 15 minutes later. After dinner, L would be taken out for a walk, weather permitting, and return at about 6:30 p.m. From that point until 7:30 to 8:00 p.m., she said, L would sit in the chair until it was time for her to get into her pyjamas. Sometimes, Ms. Morris said, L would help the staff with laundry chores. Ms. Morris did not recall any instance of the griévor forcing L to sit on the floor. She said that sometime L would choose to do this in the upstairs office, but not often. According to Ms. Morris, the staff tried to discourage L from sitting on the floor in the living room because it was not as clean as the floor upstairs; however, when L did so it was usually to play with one of her toys, such as her top or her blocks. When doing this, she would sit cross-legged on the floor, clasping and unclasping her hands. When Ms. Morris was asked to comment on her allegation in her interview that the grievor did not allow L to vocalize, she said that the grievor thought that if L made certain sounds it would escalate into disruptive behaviours. To prevent tins, the grievor would say, "L, stop," or "L, quiet" in a firm but not loud tone of voice. I now turn to the evidence of Ms. Krista Gibson. She was a part time support worker who worked with the grievor three times a month for about a year and a half before the termination. She said that she had ample opportunity to observe the grievor supporting L and did not think that anything she saw the grievor do constituted an abuse of 1. She said that she thought that 13 there was a really good relationship between the grievor and L, and that L would always listen to the grievor. Ms. Gibson observed that L really seemed to like the grievor and alway~ greeted her when she came in. In addition, she said, L did not seem to "raspberry" as much when the grievor was around. On cross-examination, she added that L could drive staff crazy with continuous "raspberry" noises. When pressed by counsel for the employer about the allegations she made in her interview, Ms. Gibson conceded that she wondered why the grievor had L spend so much time in the green chair. She said that when L came home the grievor would tell her to go and sit in the green chair while the other clients settled in and staff prepared dinner. It was as if the green chair was L's chair. The chair was by the window in the corner of the living room. From the chair, L could see the television. After dinner, the grievor would tell L to go and sit in the same green chair and play with her activities. If someone was going for a walk, Ms. Gibson added, L loved to go with them. Otherwise, she'd usually remain in the chair until bed time at 8:00 p.m. The reason for having her do this, she said, appeared to be that L was calm when she sat in the chair. On cross-examination, Ms. Gibson said that at staff meetings she questioned the supervisor of the Kehoe residence about why L spent so much time in the green chair. As far as she could recall, she testified, the supervisor never said that having L do this was a bad thing. When asked about occasions when L sat on the floor, Ms. Gibson said that L would often sit on the floor and play with shoe laces or blocks. She could sit there by herself for about ten 14 minutes. If a staff member sat there and played with her, she added, L could even spend a longer time there. As to the allegation that the grievor forced L not to vocalize, Ms. Gibson said that it depended on the kind of self-talk that L was engaging in. She said that there was a particular type of self-talk that L would engage in when she was getting frustrated. The griever would stop her from carrying on with that type of vocalization. She would, however, permit other types of vocalization to continue. No physical force was ever used. According to Ms. Gibson, L always listened to the grievor and did what the grievor told her to do. (4) The Evidence at Arbitration of Client Abuse Against K: The employer's evidence of client abuse against K was much stronger than that elicited about L. It will be recalled that the allegation that the grievor abused K involved an incident in which the grievor allegedly punished K by denying her dessert and throwing out all of her food in front of her -- including her meat and french fried potatoes -- when K refused to eat her vegetables, and instructing part-time staff not to give K her evening snack. The witness for the employer regarding the incident was Ms. Krista Gibson. Ms. Gibson said that K was a diabetic client who would never eat her vegetables or salad. To induce her to eat these, the staff would give them to her first and save the good stuff, including her meat and mes, until she had eaten some of her vegetables. K always protested, and because she sat with, her back to the kitchen, she would twist around toward the kitchen and yell and scream about it. 15 The grievor would often react to this demonstration by saying from the kitchen, "If you don't eat your vegetables, you're not getting the rest of your supper!" Sometimes K would turn around and eat; other times she would not. On at least one occasion, Ms. Gibson said, the grievor became so frustrated with K that she dumped K's meat and fries into the garbage in front of her. K yelled and screamed as she saw her meat and fries being thrown out. The grievor also denied K her dessert and told Ms. Gibson that since K would not eat any of her vegies she should not get any snack that night. On cross,-examination, Ms. Gibson confirmed that after the grievor left the home that evening, she gave K her snack. She said that she felt "bad" for K because K loved food and obsessed about it. Ms. Gibson added that now that she'd had an opportunity to study the abuse protocol of the employer, she regarded the incident as an act of psychological abuse. She said that if she'd had an in-depth look at the protocol before the incident, she would have challenged it and talked to her supervisor about it. She also said that she had never seen any other staff member deny food or a snack to a client. If a client had to leave the dinner table for misbehaviour, she said, they always got their food later. The grievor testified that she could not recall the above incident but conceded that on one occasion she could have tossed K's meat and potatoes into the garbage in frustration. She maintained, however, that she never forced K to watch and denied saying anything at all to her. She said that the garbage can was right next to K's chair but she did not make K watch what she was doing. The grievor added that K could be very difficult at mealtime, yelling and screaming 16 about the food or the stages in which it was being served to her. ID. The Submissions of the Parties: Counsel for the employer, Mr. Bergeron, essentially based his submissions on two of the four allegations against the grievor: (1) Forcing L to sit in the green chair for long periods of time; and, (2) punishing K by throwing out all of her food in front of her, denying her dessert and instructing part-time staff not to give her a nighttime snack. Citing a number of arbitration awards, including Re Government of the Province of British Columbia and British Columbia Government Employees Union (1980), 26 L.A.C. (2d) 71 (B.C., Hope); Re Baptist Housing Society (Grandview Towers) and Hospital Employees' Union, Local 180 (1982), 6 LA.C. (3d) 430 (B.C., Greyell); and, Re Central Park Lodge Ltd and Service Employees International Union, Locals 204 & 268 (1994),44 L.A.C. (4th) 171 (Marcotte), he submitted that because the employees in the health care industry were vested with a high order of public trust to preserve and protect the wellbeing of the most vulnerable elements in our society, even a single act of patient or client abuse justified the discharge of a long-term employee like the grievor. Mr. Bergeron also submitted in the alternative that if! were nevertheless inclined to allow the grievance, the grievor should either be denied reinstatement due to destruction of the viability of the employment relationship, or subjected to a probationary reinstatement with no monetary compensation from the time of discharge to the time of reinstatement. In support of these propositions, he cited Re La Chaumiere Retirement Residence and Service Employees' Union, Local 210 (1993),37 L.A.C. (4th) 86 (Roberts); and, Re Digby Town and Municipal Housing 17 Corporation (Tideview Terrace) and Service Employees'International Union (1985), 20 LAC. (3d) 374 (N. S., Quigley). Finally, Mr. Bergeron referred to Re City of Dartmouth and Nova Scotia Union of Public Employees (1980), 27 LAC. (2d) 97 (N.S., Cotter), in submitting that because the grievor "stonewalled" the employer's investigation with denials of any misconduct up to the point of the arbitration proceeding, she would, in any event, be estopped ITom claiming any compensation ITom the date of discharge to the date of reinstatement. The representative of the union, Mr. Presley, submitted that the case for the employer failed to show any clear, cogent and reliable evidence of acts of client abuse, and as a result, the grievor should be reinstated with full compensation, service, seniority and benefits. Evidence of this order was required, he said, whenever allegations of serious abuse where made against an employee in the health care industry. In this regard, he referred to Re Lee Manor Home for the Aged and c.L.A.c. (1999),80 LA.C. (4th) 129 (Verity); Re Bethany Care Centre Calgary and Canadian Health Care Guild (1996),59 LAC. (4th) 347 (Alta., AV.M. Beattie); and, Re Alberta Health Care Association and Canadian Health Care Guild (1993), 37 LAC. (4th) 215 (Alta, A.V.M. Beattie). In the alternative, citing Re British Columbia and B.c.N. U (1997),62 LAC. (4th) 8 (B.C., S. Kelleher); and, Re Cove Guest Home and Nova Scotia Nurses Union (1990), 14 LAC. (4th) 48 (N.S., North), Mr. Presley submitted that even if a single act of abuse was shown, the abuse cases cited by the employer were distinguishable in that they all involved acts of physical abuse, whereas isolated acts of non-physical abuse were treated more leniently. Finally, in 18 response to the employer's claim that the grievor should be estopped from claiming compensation because she continued to deny any misconduct up to the point of the arbitration proceeding, Mr. Presley stressed that after the criminal charges were dismissed in July, 2003, there were several discussions between the union and the employer but they did not result in any mutually agreeable resolution of the gIievance. IV. Consideration of the Submissions: (1) The Allegations of Client Abuse Against L: I have no hesitation in rIDding that the case for the employer did not demonstrate with clear, cogent, and reliable evidence any of the allegations that the grievor abused L, and, as a result, the employer has not sustained its burden of proof on these matters. That this is the burden of proof or onus on the employer in cases of alleged serious misconduct was reiterated by Arbitrator Verity in Re Lee Manor, supra. He said, in pertinent part: The onus of proof in a disciplinary matter rests, of course, with the employer. The standard of proof required is the civil standard of proof on the balance of probabilities. Where serious misconduct is alleged, in this case resident abuse, the burden of proof on the employer is to satisfy the arbitrator as to the truth of its allegations on clear and cogent evidence. .... ¡d., at 141. Unless clear, cogent and reliable evidence of serious misconduct such as client abuse is adduced, an arbitrator has no choice but to dismiss the allegations. Here, there was no evidence at all that the grievor ever punished L by forcing her to sit on the floor for long periods of time. Neither of the eye witnesses for the employer testified to this. 19 At most, Ms. Morris said that on occasion, L would choose to do this on occasion to play with her activities. Ms. Gibson reflected the same in her testimony. Sitting on the floor appeared to be voluntary with L and would be discouraged by staff, at least in the living room, due to concerns about the cleanliness of the floor. There also was no evidence that the grievor ever forced L not to vocalize, at least as some part of a practice of dominating or punishing her. At most, the evidence showed that, as Ms. Krista Gibson testified, the grievor would tell L to stop a form of self-talking that she engaged in when getting frustrated and, to the grievor's knowledge, would lead into an escalation oft's destructive behaviours. This appeared to be.in accordance with the viewpoint expressed by Ms. Ms. Jo-Ann Trehan, L'S behavioural therapist, and LiS intervention strategy, which instructed staff to limit L's self-talking by telling her to stop when it appeared that L was starting to escalate into more serious stages of her behaviours. This brings me to the allegation that the grievor "forced" L to sit in the green chair for "crazy" periods of time. First, there was no evidence that the grievor ever used any force at all, let alone physical force. According to the evidence, all that she did was to tell L to sit in the green chair and L would comply. The employer suspected that the ready compliance ofL in response to the grievor's directions could indicate that physical force was used in the past and that fear of the grievor secured Lis compliance. None of the witnesses for the employer gave any evidence of this. Ms. Morris indicated in her evidence that L tended to listen to those support workers whom she knew best. The grievor had been Lis primary support worker for five years. 20 Moreover, Ms. Gibson indicated that L was far from afraid of the grievor. She said that she thought they had a good relationship and that L would always greet the grievor when she came into the home. In short, there was no evidence at all that the grievor engaged in a practice of dominating, intimidating or coercing L to comply with her directions. The evidence of the employer was all the other way. As to the other element of the allegation, that the grievor had L sit in the green chair for "crazy" periods of time, once again the evidence of the employer did not sustain its position. Ms. Gibson, the co-worker who allegedly used the term "crazy" in her interview to describe the amounts of time that L spent in the chair, did not do so in her evidence even when pressed on direct examination. By her calculation, L would spend, at most, between an hour-and-a-halfto two hours in the chair between dinner and bedtime, if she was not taken out for a walk or undertook to help with the laundry. Ms. Morris estimated the time to be one hour to an hour- and-a- half. In my opinion, and, indeed, in the opinions of Ms. Gibson and Ms. Morris, two hours in the chair might be considered too lengthy for a developmentally challenged individual, even considering the ready availability to L of television, sedentary activities and picture books while she was there. But, on the evidence, it seems difficult to characterize it as an abuse that should attract discipline. Most telling on this aspect of the case was the condonation of the practice by supervision at the home. Ms. Morris testified that when she started at the home she was told by the supervisors, Ms. Kathy Ellis-Bowman and Ms. Bonnie Gale, to keep L sitting on the chair in the 21 living room because staff had to keep an eye on her at all times; otherwise, she might wander and hurt herself because she had no appreciation of danger. I accept this evidence as fact, given that neither supervisor was called as a witness to contradict Ms. Morris. For the same reason, I also accept as fact the evidence of both Ms. Morris and Ms. Gibson that they brought up their concerns about L's chair-time in staff meetings with supervision but nothing ever was done to . change the routine. As Ms. Gibson said, she was never told that having L do this was a bad thing. How then can the grievor be disciplined for following an accepted and condoned practice? She cannot. (2) The Allegation of Client Abuse Against K: The evidence of client abuse against K was much stronger for the employer. Ms. Gibson testified unequivocally that the grievor often threatened to withhold the rest ofK's food when K acted up at the table, and on one occasion carried out her threat by (1) dumping K's meat and vegetables into the garbage in front of her while K screamed and yelled at the sight; (2) withholding K's dessert from her; and, (3) instructing night staff to deny K her snack. The grievor's evidence was equivocal. She allowed that, while she had no specific recollection of the event, she might have tossed K's meat and vegetables into the garbage but denied saying anything to K and also denied forcing K to watch. I have no hesitation in preferring Ms. Gibson's evidence over that of the grievor on this issue. Ms. Gibson was the ultimate independent witness. She was a fellow member of the bargaining unit and a co-worker of the grievor, who was placed in the difficult position of being 22 called to testify against the grievor in the case for the employer. Unlike the part-time employee whose allegations led to the investigation, she had no "axe to grind" against the grievor and, in fact, gave much evidence that was favourable to her. The grievor, on the other hand, was a stakeholder in the outcome of the case. Her testimony was equivocal and came across as relatively weak effort to minimize her culpability in the matter. This was particularly so of her evidence that she did not force K to watch while she threw out the rest ofK's food. According to the evidence, the garbage can was right next to K. She could not help but see what the grievor was doing and the grievor could not help but realize that K would see what was happening as the rest of her food was thrown out. I accept as fact that the grievor often threatened to withhold the rest of K's food when K acted up at the table and on one occasion actually carried out her threat by dumping K's meat and fries into the garbage in front of her while K yelled and screamed in protest at the sight. I also accept as fact that in the course of the incident the grievor withheld K's dessert from her and instructed part-time staff to deny K her nighttime snack. There were several things wrong with these actions by the grievor. First, as I understand the employer's abuse protocol, it would have been an abuse of K even to threaten to withhold her food. As Ms. Carnevale testified, the definition of abuse through psychological stress in the employer's abuse protocol included any kind of coercion, verbal aggression, or derogatory comments -- anything that would make the client psychologically stressed. Such threats would, to the knowledge of the grievor, psychologically stress K. As Ms. Gibson said, K loved food and obsessed about it. 23 Secondly, it was an abuse ofK to actually carry out the threat on one occasion. The abuse protocol made it clear that anything that was intended to demean or punish a client constituted abuse. Ms. Brooks testified that if the grievor did this as a form of punishment, it would be characterized as abuse. On the evidence, there seems to be little doubt that the grievor was acting in a stem, harsh and punitive way when she threw out the rest ofK's meal in tront of her, denied her dessert and attempted to deny her a nighttiine snack. Thirdly, it was an abuse ofK to withhold food trom her for any reason. According to Ms. Carnevale, it was the policy of the employer never to deny a client his or her food. As Ms. Gibson said, if clients had to leave the table due to misbehaviour they always got their food later. She had never seen any other staff deny clients their food for any reason. Moreover, to the knowledge of the grievor and the rest of the staff, K was a diabetic who needed certain amounts of food throughout the day to keep her blood sugar in check. As Ms. Carnevale and Ms. Brooks said in their evidence, this made the denial of food to her particularly offensive. Counsel for the employer, Mr. Bergeron, stressed these three aspects of the client abuse against K in a strong submission that, regardless of the evidentiary difficulties with the allegations of abuse against L, the termination of the grievor was still justified. And certainly, the cases upon which he relied provided support for the submission. In Re Government of British Columbia, supra, the termination of a 20-year employee with an unblemished record who slapped a developmentally challenged child in frustration was upheld due to the rigid nature of the public trust in the health care field. In Re Baptist Housing, supra, an arbitration board 24 confirmed the termination of a nurse with four years seniority who bruised an elderly resident while forcefully attempting to restrain him from banging his cane on the wall. In Re Central Park Lodges, supra, a Health Care Aide with 23 years of service who slapped an elderly resident had her discharge upheld at arbitration because higher standards were expected of employees in the health care sector and her persistent denial of the misconduct left the arbitrator with no confidence that she would refrain from repeating the misconduct if reinstated. See id, at 202- 03. Pointing to the grievor's initial denial of the allegation of client abuse against K and her attempts to minimize her own culpability at arbitration, counsel submitted that I should likewise have no confidence that the grievor would refrain from engaging in similar acts of client abuse if she were reinstated. I gave this submission careful consideration but in the end I decided that the termination could not be upheld and lesser discipline was app~opriate. Chief among my reasons for doing so was testimony from Ms. Brooks on cross-examination that the discharge of the griever was all about the abuse of L, not K. Ms. Brooks added that the treatment of K would not have been a deciding factor in the discharge and the employer would not have terminated someone for that. I also took into account the employer's abuse protocol, which did not invariably call for discharge for client abuse so long as the abuse was a momentary response in frustrating circumstances and retention of the employee was consistent with re-establishing a safe environment for the clients. Finally, I considered the distinction brought out by the representative of the union, Mr. Presley, that all of the cases relied upon by counsel for the employer involved acts of physical abuse whereas here, only psychological abuse was alleged. While I accept that acts of psychological 25 abuse can be as emotionally damaging to a client as physical abuse, they would appear to be more amenable to corrective action without the risk to the physical safety of clients that would exist in cases of physical abuse. Perhaps that is why Ms. Brooks did not consider the incident with K to be cause for termination. (3) The Appropriate Remedy: It goes without saying that I have already concluded that reinstatement of the grievor was appropriate. In fact, I issued an order on March 31, 2004, directing that the grievor be returned to her former position as a support worker. Considering the four factors that were set forth in my prior La Chaumiere award, supra, at 91-92, this was not a case where the viability of the employment relationship was destroyed by the actions in which the grievor was proven to have engaged;,~ Moreover, it does not seem to me that the grievor's denial of any wrongdoing up to the point of arbitration can raise an estoppel against a claim for monetary compensation for some part of the 13 to 14 months that passed between her termination and reinstatement. In the first place, I consider the case upon which counsel relied for this proposition, Re City of Dartmouth, supra, to be of uncertain authority. Secondly, given that the grievor was going through a criminal prosecution on related charges that lasted until after the commencement of the arbitration, it seems to me that she was within her rights to refuse to make any further statements to the employer until after the charges had been dealt with by the court. Finally, as the representative of the union, Mr. Presley, pointed out, after the charges were dismissed the union and the grievor entered into active discussions with the employer. 26 I now turn to the matter of the discipline that should be substituted for the termination. I believe that the discipline must be "substantial enough to send a clear message to any employee who may engage in misconduct toward a. . . [client]" that it will not be tolerated and will draw a significant penalty. Re Digby Town and Municipal Housing Corporation, supra, at 380. In this regard, I note that even a case cited by the union, Re British Columbia and B. eN u., substituted a 30-day suspension for a discharge. I think that the same level of discipline ought to be substituted in the present case. In the B. eN U case, supra, a psychiatric nurse, through a lapse in judgment, allowed herself to be manipulated by a drug-addicted patient who subsequently died of an overdose. While I recognize that the degree of harm that occurred in the present case was not nearly as significant as a death, I also find that the grievor's level of culpability in her mistreatment ofK was much greater than that attached to a mere lapse in judgment. In my opinion, one factor balances off the other. A clear message must be sent and, in my opinion, a 30-day suspension should suffice reasonably to accomplish this objective. V. Conclusion: The termination of the grievor is set aside and a suspension of30 working days is substituted in its place. Except for the period of the suspension, the grievor shall be entitled to payment of wages, less appropriate deductions, for the time that she spent offwork as a direct result of the termination. She also shall be entitled to full credit for service, seniority and benefits that would have accrued to her during the entire time she spent off work as a direct result 27 of the termination. I will retain jurisdiction pending implementation by the parties of the terms of the award. Dated at Toronto, Ontario, this 19th day of July, 2004. I "