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HomeMy WebLinkAboutSuleman 05-11-08 ,,~ < In the Matter of an Arbitration Between: Region of Halton A and ..~ ø ~ f'\ ~ ~ '"'.:(\\ OPSEU ~~. ¿'), '~¡Þ \~ '9 cÞ ,., '1(. .(\ , « d '\, ~- ~ .~!. ,~, ~ '-" .., \,'-;: /' '\' " '>{'1. /' \, /'.,/' In the Matter of the Termination Grievance of Nasim Suleman\- AWARD Before: Dana Randall For the Employer: Tom Moutsatsos, Counsel Mary Killeavy Nancy Kohler Sheldon Wolfson For the Union: Mitch Bevan, Grievance Officer Joan White A hearing in this matter was held in Oakville on June 16, September 15, 20 and 21,2005. - , AWARD I This is a termination case. Ms. Nasim Suleman (the Grievor), a health care aide, was dismissed, along with Julie Dams, another HCA, for alleged resident abuse arising out of an incident at the Allandale Care Facility on January 15, 2005. As a result of the incident, an 88 year old female resident (DH) sustained significant bruising on both of her forearms and a skin tear on one of her hands. The letter terminating the Grievor's employment reads in part: On Saturday, January 15th, 2005 you were bathing a resident who became resistive and you requested the assistance of your Heath Care Aide partner. You and this co-worker continued to dress the resident despite the fact that the resident was visibly agitated. Your actions violated the Resident's rights and your unnecessary rough handling caused severe bruising along the resident's forearms, and a skin tear on one hand.... ...Your primary responsibility as a Health Care Aide is to ensure the safety and comfort of our residents. Resident Abuse is very serious and will not be tolerated. The above actions are inconsistent with your role as a Heath Care Aide at Allendale. Ms. Dams' grievance was placed before another arbitrator and was settled on terms which, I was advised only, included her not returning to work with Allandale. 1/ On September 28, 2005 I issued the following 'bottom line' decision in this matter: In my view, the Employer has not made out a case of resident abuse warranting termination and I so find. Nor am I satisfied to find anything in the Grievor's conduct grounds a finding that the employment relationship is no longer viable. As a result, Ms. Suleman is to be reinstated to her former position forthwith. I reserve on the issue of whether the Grievor is guilty of disciplinable conduct, whether, if found, that conduct can be properly characterized as resident abuse, and on the appropriate remedy. - . These are my reasons for the conclusions set out in the first paragraph above and my decision on the issues identified in the second. 1/1 This matter was heard over 4 days. The Employer called Sue Israel, the Grievor's RN supervisor, Edna MacNeil, the Home's Manager of Resident Care, Ingrid Johnston, the Home's Administrator and the person who made the decision to terminate the Grievor, and Ms. Dams. Ms. Dams was called in the wake of having settled her own termination case with the Employer. The Union responded with the evidence of the Grievor. The Employer did not call the evidence of DH. I draw no adverse inferences on that basis. She is elderly and suffers from dementia and I had no expectation that she would be called. At the same time, there was no suggestion that DH was unable to testify but only that the experience would be very stressful for her; as such, hearsay rules were not relaxed. This, no doubt, caused the Employer significant difficulty, not only in getting a case before me, but because Ms. MacNeil, and Ms. Johnston in reliance on her, seem to have drawn conclusions based on discussions with DH that are not supported by the evidence before me, especially with respect to allegations that the Grievor was guilty of forced dressing. The only direct evidence of the incident comes from Ms. Dams and the Grievor and their evidence, on all material points, has been consistent throughout. From the outset of the Employer's investigation to their testimony before me, their evidence provides a compelling and coherent narrative of events, which is, in my view, exculpatory of everything but the most minor wrongdoing on the Grievor's part. While there are three points on which they disagree and an apparent inconsistency between the Grievor's written statement and her viva voce evidence respecting the extent of the dressing of DH, those disagreements and that apparent inconsistency are, on close scrutiny, neither material to my findings nor sufficient to ground a finding that the Grievor is not credible. Rather, they reflect on the Employer's failure to clarify apparent inconsistencies during its investigation. Certainly, with respect to the most serious allegation, the two HCAs agree that nothing the Grievor did 'caused' the injuries to DH. At no time, aside from while bathing DH, did the Grievor touch, let alone injure, the hand and forearms of the resident. On the other hand, both witnesses testified that Ms. Dams did restrain DH by holding her forearms with her hands and both testified that DH's injuries 2 . could well have been caused by her own actions of flailing her arms and striking both them and the hard edges of the tub chair. The Management witnesses could only testify about their subsequent involvement, their investigation, including their interviews of both the Grievor and Ms. Dams, and their expectations and view of best practices, given the situation which developed. Frankly, the challenge for the Employer with this evidence was to establish grounds for the imposition of any discipline against the Grievor. Much of that evidence was highly speculative, at best. Given these circumstances, it is not surprising that virtually all of the evidence respecting the incident is not in dispute, though, as we shall see, the narrative is not seamless and the interpretation to be given to that evidence is very much in dispute. I intend to set out the facts as I have found them. I will then deal with the three areas of conflict in the evidence between the Grievor and Ms. Dams and my view of the Grievor's credibility. IV The Allendale Care facility is a nursing home, which, at the time of these events, had 200 residents. The Home is divided into 'houses', with 25 residents in each. DH resided in Pettit house. She suffers dementia and has a history of incidents involving staff and a history of making accusations of abuse. While that history has not involved striking staff, the Employer witnesses readily agreed that she is very difficult, that she shows very poor judgment about what is best for her, is very demanding, and often 'acts out' by, amongst other things, calling her care- givers very unflattering names. On the day of the incident, for instance, she called Ms. Dams a "fat pig". From the reports of the incident, it is clear that the Home is unaware of what 'triggers' DH's acting out. DH can also be very lucid and has no difficulty articulating her wishes. DH liked the Grievor, who often cared for her; she did not like Ms. Dams, who, for reasons of design or otherwise, had only cared for her on about 3 occasions. The Grievor has 11 years of unblemished service with the Employer and has, in addition to that, many more years of employment in long term care. Ms. Israel, who has supervised her on numerous occasions and who demonstrated a very level-headed attitude to these events, described her as a good employee, whose involvement in an abuse incident she found surprising. On the day in question, Pettit house was short-staffed for the morning routine of getting residents out of bed and down to breakfast; instead of having 3 HCA's on 3 . duty, there were only 2: the Grievor and Ms. Dams. As a result of the short- staffing, Ms. Israel testified that she advised both of them that 'we should concentrate on getting residents down to the dining room and that any baths could be delayed until after breakfast.' Ms. Dams heard the advice, but the Grievor testified that she did not. In any case, the 2 HCA's began their routine, which commenced with all their two person lifts. They then separated and began getting the other, ambulatory, residents up and dressed. DH rang her call bell and asked the Grievor for a bath; the Grievor advised her that she would have to wait and helped her lie back down in bed. She advised DH that whenever she had time she would come back. The Grievor continued with her duties and decided to give another resident a bath. Prior to that bath and throughout it, DH repeatedly rang her bell and the Grievor, who determined that she still had enough time to bathe DH, returned to her and told her that she could now have her bath. DH was happy with the news. The Grievor gave a detailed account of getting DH to the tubroom, getting her into the tub chair, lowering her into the water, and bathing her. Throughout the bath, the Grievor testified that DH was in a happy mood and that they had a pleasant conversation about, amongst other things, the Grievor's hair. The Grievor then lifted DH out of the water, by means of the chair lift, and began patting her dry with towels. Before proceeding further, it will be helpful to describe the chair lift in some detail, as it features prominently in the interpretation to be given to these events. Residents are placed in and removed from the high-sided bath tub by means of this chair. In fact, they remain in the chair throughout the bath and throughout most of their dressing post-bath. The lift has a solid base and is located at the narrow end of the tub. The base has 2 pedals for raising and lowering the plastic moulded seat, which is attached to a 5 or 6 foot metal upright. The seat is attached to the metal upright by means of s-shaped metal supports, which sets the seat out and away from the upright to allow the resident to be lowered over the edge of the tub. The chair swivels on the upright. A resident is seated in the chair in its lowest position and belted in. The seat is then raised by means of the foot pedals to its highest position, so that the resident's feet are above the edge of the tub (2 feet or more, apparently); the chair is then swivelled to the right so that the resident is out over the tub and then slowly lowered. When the bath is complete, the chair is raised to its highest point and swivelled back to the left and out over the floor for drying and dressing. 4 , With the resident in the highest position and with the chair swivelled out over the floor, the Grievor began dressing DH's bottom half. All of this is standard procedure. She put on DH's underwear and pulled them up to her high shins. She applied cream to her legs, which the resident liked. She put DH's pants on and pulled them up as far as she could with the resident still sitting. Then she put both of DH's socks on. Throughout all of this, the Grievor testified that DH "was not acting up at all". Then she put DH's left shoe on. At that point, DH began to kick her on the head, gently at first, and the Grievor thought initially that DH was "just kidding". The Grievor told her to stop, but the kicking not only intensified, DH began flailing her arms, hitting the Grievor on the head. When the Grievor looked up, she saw that DH, presumably in kicking out, had slid down partially off the chair and the belt was now up over her breasts. The Grievor candidly admitted that she panicked. She had never, in all her years of practice, had a situation develop where a resident's resistive behaviour had placed them in a situation which endangered their own safety. She warned DH that she was going to slip off the chair and immediately held onto the two sides of the chair and used her body to hold DH in the chair. She did not hold DH's arms; DH continued to strike her. She testified that she "couldn't swing her around and let go of her for her safety and reach the pedal". She called for assistance by shouting "Julie, Julie" and Ms. Dams responded immediately. Ms. Dams testified that when she arrived DH's "bum was half off the chair" and "the belt was above her breast line". Ms. Dams testified that "we couldn't leave her in that position". She could have fallen and seriously hurt herself. This view was clearly shared by both caregivers. Ms. Dams announced, immediately, that they had to get DH down, but that was easier said than done. Ms. Dams put it this way. If DH was calm, we would just go around her to push the pedal, but she was not calm. In fact, upon seeing Ms. Dams, DH grew more agitated, kicking and flailing her arms and yelling and cursing at Ms. Dams: "not you; get out of here; I can't stand you." Ms. Dams appears to have drawn two conclusions. "Because the floor was soaking wet because [DH] was freaking out", and while the Grievor was still in position to stabilize the resident in the chair, Ms. Dams put DH's second shoe on to ensure that she would not slip when they got her feet on the floor. She also concluded that they had to 'contain' DH in order to get to the pedal without being constantly struck by her. Further to that, she grabbed the chair and swivelled it around, while the Grievor went around to lower the chair. (Why they changed positions, in this fashion, was never explained, nor was it pursued by either party.) DH continued to kick and flail when the Grievor went around to lower the chair and, while being lowered, DH kicked Ms. Dams in the groin, with sufficient force, that 5 she sought medical attention immediately after her shift. Once DH's feet were on the floor, the Grievor attempted to undo the seatbelt and was repeatedly struck by DH's hands. In Ms. Dams' account, DH "was trying to bite, and was spitting, hitting and swearing at us." At some point, Ms. Dams said to DH: "don't hit Nasim" and held DH's wrists while the Grievor finished that task. The Grievor testified that she was unaware that Ms. Dams was holding the resident's wrists, initially, but became aware at some point in the drama and was certainly not aware that Ms. Dams was using excessive force to hold them. Once the belt was untied, Ms. Dams released DH's arms and she immediately flailed her arms again striking the two of them. At that point, the Grievor noticed that DH had a skin tear on her hand and placed a wash cloth on it, which immediately fell off with the movement of DH's arms. In the Grievor's version, it was at this point that she also pulled a loose fitting sweater over DH's head and shoulders, but did not put her arms through the sleeves. She testified that she would never have done the latter, because of the skin tear. She testified that she pulled the sweater over DH's shoulders, because DH was naked on top, was cold after her bath and for her dignity: she would be walking back to her room in the public hall with male residents making their way down to breakfast. The two HCA's then assisted DH to stand up and the Grievor dried the resident's bottom. Together, they then pulled DH's underwear and pants up, which were pooled at her ankles, so as to ensure that she would not trip and fall. In Ms. Dams' version, it was at this point - after DH was standing and after the Grievor had placed DH's walker in front of her - that the Grievor pulled DH's sweater over her head. While Ms. Dams agreed that the Grievor only pulled it over DH's head and shoulders, she testified that because DH continued to resist, she (Ms. Dams) told the Grievor to "just let her go to her room naked", which is what the Grievor did. In the Grievor's version, Ms. Dams' remark was made at this juncture, though the sweater had been pulled on earlier, because the Grievor, who was following DH out of the room, tried to pull DH's sweater down at the back. The Grievor followed DH back to her room, ensured that she was seated safely in a chair and then called the RPN and RN to report the incident. She stayed with DH until registered staff arrived in the room. V As indicated, there are three conflicts in the evidence between the Grievor and Ms. Dams and there is the alleged inconsistency on the issue of the extent of the 6 dressing. While, in my view, they are not material to the disposition of this matter, because the Employer considers them significant in assessing the Grievor's credibility, I will examine them briefly. The three conflicts are: 1) Ms. Israel's 'direction' respecting baths; 2) Ms. Dams having come into the tubroom at an earlier time when DH was still in the bath and complaining and 3) the timing of putting on the sweater. Regarding 1), I have no doubt that Ms. Israel said that baths could wait until after breakfast. It was, however, less a direct order than a suggestion. Ms. Dams heard it, but didn't know if the Grievor did. The Grievor said she did not. I am satisfied to find that she did not. However, I am also satisfied to find that Ms. Dams, who was a little upset that the Grievor undertook to do 2 baths, said to the Grievor, when the latter announced an intention to do 2 baths or when she had commenced doing them, to 'forget about doing baths'. I have no difficulty in finding that the Grievor, who denies that Ms. Dams said that to her, is mistaken about that. But, in my view, that is not material to the issue in dispute nor does it call into question the Grievor's credibility. Regarding the former, there is no suggestion in the termination letter that the Grievor's decision to bathe DH formed any part of the Employer's decision to discipline; nor did the Employer take that position before me, though Mr. Moutsatsos relies on the fact of bathing, given the morning's time constraints, to develop a theory that the Grievor rushed the bath and, as a result, triggered the resistance. Even Ms. Dams, who was irritated by the Grievor's decision, volunteered, unprompted, that bathing DH was 'a reasonable thing to do in order to get DH to stop ringing the bell'. As importantly, I agree with the Union that, if this was an important conflict in the evidence, the Employer should have raised this with the Grievor 8 months earlier, at the time of the investigation, when it had both of their written statements. Fully one third of Ms. Dams' statement is dedicated to the issue of not doing baths, while the Grievor's is silent on the issue. Unfortunately, Ms. Dams' statement was not shown to the Grievor, nor were its contents put to her at the time, so as to either fix her memory or highlight and resolve conflicts. Regarding 2), Ms. Dams also testified that she came into the tubroom while DH was in the bath, that DH made unflattering remarks about Ms. Dams and complained: "she [the Grievor] is abusing me", to which the Grievor replied, ' I'm just washing you; if you don't want me to I'll give you the cloth and you can wash yourself'. There was no suggestion in Ms. Dams' evidence that this was an allegation to be taken seriously. In fact, the tone with which she conveyed that bit of evidence was clearly intended to establish the contrary: that DH, as usual, was making meritless complaints and that the Grievor was dealing with her 7 patiently and appropriately. Neither party dealt with this bit of evidence when it was adduced by Ms. Dams and I concluded that it was of no relevance. It only took on any relevance when the Grievor denied that Ms. Dams came into the tubroom at that time or that this exchange took place. Again, this assertion by Ms. Dams appears in her written statement, but was never put to the Grievor at the time of termination so that a proper assessment could be made and the Grievor's memory fixed. While I have no trouble in preferring Ms. Dams' evidence on this point, it is not material to the issue before me and the Grievor's having forgotten the exchange is of no consequence to her credibility. I am satisfied to find that it tells us more about DH than it does about the Grievor. Thirdly, there is the disagreement over when the Grievor put the sweater on. I have set out the evidence of the two witnesses in detail above and do not need to revisit that. Again, it is not clear how the difference is material and, therefore, why a finding one way or the other is of consequence to the issue of credibility. I do note, however, that Mr. Moutsatsos concluded, on the basis of the Grievor's version of events, that the pulling on of the sweater would have taken place while DH was being restrained by Ms. Dams. The evidence does not establish that. While at one point in the Grievor's cross-examination, there was some ambiguity with respect to that (and Mr. Bevan appears to have conceded the point in final argument), the totality of the evidence makes very clear that Ms. Dams had released her before the sweater was pulled over DH's head. It was shortly after the release that the Grievor noticed the skin tear on DH's hand and that was clearly before she pulled the sweater over DH's head. There is no evidence, whatsoever, which suggests that Ms. Dams restrained DH a second time and I so find. In Ms. Dams' version, there was no restraint at the time, though there was resistance. In sum, these differences are not material to this matter and are not sufficient to ground the finding, sought by the Employer, that the Grievor was not credible. I agree that the Grievor was not a particularly good witness. She was neither articulate nor resourceful, which may well be only a function of her language skills. Instead of having a nuanced response to areas where her own recollections differed from those of Ms. Dams, she simply denied Ms. Dams' version. And she was also highly suspicious in cross-examination, which made her a less cooperative witness than she could otherwise have been. But given my view that the Employer's response to her actions was unreasonable and excessive and given the Employer's attempt to sustain the termination, before me, on the basis of a very broad and ever expanding interpretation of its grounds for same, a certain degree of prudent paranoia may well be understandable. 8 Finally, before moving on, one other bit of fact finding should be noted respecting the extent of the dressing of DH. Because the Employer's best case relates to the "forced dressing" allegation, the more dressed DH was, the stronger its case is. At the time of the termination, the Employer had concluded that the Grievor had completed the dressing of DH or, alternatively, that she had put DH's bra on and put her sweater on, with one of her arms in one of its sleeves. This conclusion appears to be based on a written statement the Grievor had provided and a conclusion drawn by Ms. MacNeil from her brief interview with the Grievor. It clearly contradicts Ms. Dams' own written statement, which is more detailed on the issue of the dressing. Ms. MacNeil did not interview Ms. Dams and, prior to its actions of terminating both employees, the Employer sought neither to underscore the importance of the extent of the dressing with them or to resolve any conflicts in their evidence with respect to it. The evidence I have before me on these issues is that the bra was not put on and that the sweater was pulled over DH's head, but with neither arm in a sleeve. The Grievor was adamant about that; Ms. Dams, who had difficulty remembering the status of the bra, ultimately agreed that the bra was not put on and she concurred entirely with respect to the status of the sweater. The Employer's attempt to impeach that evidence, given the witnesses' agreement before me and the Employer's earlier failure to fully investigate the issue, is simply not convincing. VI As indicated, in addition to Ms. Dams, the Employer called three other witnesses to opine on these events and to put before me three policies, which it relies upon: the "Prevention and Management of Aggressive Behaviours" policy, its "Resident Abuse" policy, and the Resident's Bill of Rights. The first provides this key concept at 5.2: The caregiver will suspend care temporarily when a resident is abusive, verbally or physically and/or resident is uncooperative, ensuring the resident is in a safe environment. [emphasis added] And 6.2 provides: Education/training will focus on recognition, prevention and diffusion of aggressive behaviours. In the majority of instances, verbal interventions will avert physical aggression. 9 The Resident Abuse policy, in addition to defining physical abuse as the 'wilful direct infliction of physical pain or injury", includes "rough handling". It also includes "forcing a resident to do something he/she does not want to do." The Employer also relies on the definition of Emotional Abuse, which includes "treating a resident like a child". Ms. Israel testified about the injuries to DH. While the skin tear was a concern, and needed to be dressed, skin tears are not uncommon amongst the elderly because of the paper thin nature of their skin. Moreover, she admitted in cross- examination that the skin tear could have been caused by DH striking the tub chair. The bruising, however, she considered shocking and I share that view. Photos of the resident's arms show extensive and deeply coloured bruising, especially at the wrists. I also share her view that this bruising is more consistent with DH having been held by the wrists than with her having struck objects with her hands and arms. Ms. Israel also testified about her discussions with both the Grievor and Ms. Dams that day and about a meeting with the two of them with DH's daughter. She outlined the Grievor's version of events as set out then and it is wholly consistent with the Grievor's version before me. With respect to the Grievor's concern that DH was going to fall, Ms. Israel said in her in-chief: "the way it was explained to me, I could understand her concern, especially given the fact that the chair was in its highest position... it seemed like a reasonable description of how she felt and the circumstances". In cross-examination, she readily agreed that it would not have been appropriate to leave DH in the chair in the state and position she was in. Ms. Israel also testified that, during the meeting with DH's daughter, the Grievor's remarks focussed on what she had done to deal with the situation. Ms. Dams, on the other hand, was more concerned with the resident's conduct. Ms. Israel stated that the daughter became upset with Ms. Dams' comments and her lack of remorse for the incident. Ms. Israel's reports of the incident focus on the conduct of DH, rather than on that of the two HCAs. In the 'analysis' portion of her report, which asks 'what acts, failures to act and/or conditions and the basic reasons for these, contributed most directly to this', Ms. Israel wrote: "resident's dementia". With respect to preventing a recurrence, she recommends '2 staff for all aspects of care', which I understand was implemented in the wake of the incident. She also recommends trying to have staff, who DH likes, provide the care, which is clearly a reference to DH's dislike of Ms. Dams, and she recommends 10 "Behaviour monitoring" of DH in order to determine the 'triggers' of her behaviours. Ms. MacNeil, who is the Manager of Residential Care, testified at some length with respect to the various policies outlined above. The main point made is that "backing off is definitely our direction" when faced with an aggressive resident in order to avoid harm to either staff or residents. If providing care and the resident, through words or aggressive actions, becomes resistive, the appropriate response is to stop the care and leave the resident as safe as possible. Unfortunately, Ms. MacNeil provides the unhelpful scenario of a resident who begins to resist while being dressed in bed. The caregiver in that situation is expected to stop, put up the side rails and cover the resident and return later. The theory is that continuing to provide care escalates the resident's aggression and, pursuant to the abuse policy, providing care to a resident who doesn't want it is abuse. In Ms. MacNeil's view, the Grievor was guilty of not doing the above. She should have stopped providing care, brought the resident down in the chair lift and backed off. She suggested that even calling Ms. Dams for assistance was not a good idea because DH does not like her. In her in-chief evidence, she simply discounts the Grievor's assertion (confirmed by Ms. Dams) that reaching the pedals, while safely holding DH in the chair, would have been extremely difficult to accomplish. Because the chair swivels, Ms. MacNeil opined that the Grievor could have gotten behind DH in order to reach the pedals without compromising DH's safety or her own. She considered the whole process of getting DH dressed and out of the chair as "rough handling" because it was against DH's wishes. She determined that both HCAs had "pushed the limit" and both were guilty of resident abuse. In cross-examination, her position was significantly more situationally informed and less doctrinal. If DH was slipping out of the chair and in danger of falling, she conceded that she would expect Ms. Dams to have been summoned and that the first priority would have been to prevent DH from falling. She also conceded that you would not leave DH in the chair with her pants down around her ankles, even after the chair had been lowered, because of the obvious tripping hazard. Ms. Johnston, the decision-maker in this matter, reasons broadly in support of her decision, as follows: "I concluded, based on the resident's very damaged arms, that something happened in the tubroom that day and that Ms. Suleman, as one of two staff there, contributed to the harm". Like Ms. MacNeil, she 11 concluded that both staff were guilty of not having stepped back when the resident had clearly indicated her desire to have the provision of her care stopped. They were therefore guilty of "forced dressing". Ms. Johnston, while conceding that the Grievor had not held DH's arms, nonetheless believed (mistakenly, as I have found) that the skin tear may well have been caused by the Grievor having forced DH's arm into the sleeve of the sweater. In any case, even if the Grievor did not restrain DH, she is still responsible for the abuse because 'she is not allowed to stand by during abuse. If employees do not report, they are responsible; they are deemed to have contributed to it.' In cross-examination, while conceding that the Grievor's accounts of the incident had been consistent throughout, Ms. Johnston would not concede that the Grievor did not directly cause the injuries. She stated that "the injuries could very easily have been caused by the Grievor forcing her arm into the sleeve of a sweater". Ms. Johnston did concede that DH's bottom was properly dressed and that the only basis for the forced dressing allegation was the bra and sweater. She conceded that pulling up DH's underwear and pants, once the chair had been lowered, was appropriate to avoid DH tripping. Nor did she condemn Ms. Dams' decision to put DH's other shoe on prior to lowering the chair. While she thought a towel could have been put down on the floor, instead, she testified: "clearly putting the shoe on was the option Julie thought was appropriate at the time". Nor did she condemn the Grievor for calling Ms. Dams for assistance. While not conceding that the Grievor needed assistance, she did concede that calling Ms. Dams for assistance was "one legitimate method" of dealing with the situation. However, with respect to the Grievor's concern that DH was falling out of the chair, with the belt sliding up around her neck, Mr. Johnston simply dismisses the concern: "I think she was safe... its not easy to slide on the chair... I don't believe the resident could have fallen right out of the chair with the belt on". And though she also testified that she was "not saying that the resident couldn't fall from the chair", she nonetheless opined that the Grievor should have "stepped back and given the resident space, once she began kicking, and she would have stopped flailing". Alternatively, she believed, like Ms. MacNeil, that there was a way to lower the chair down on her own, without danger to either the resident or herself. In sum, Ms. Johnston testified that the Grievor "caused" DH's injuries, to use the language in the termination letter, because her actions contributed to DH being injured. She did not lower the chair, she forced the resident to get dressed, she 12 . called a co-worker in and allowed the co-worker to hold the resident's arms. For Ms. Johnston, the Grievor was a party to the incident and that, in itself, appears to have been sufficient to sustain the termination. VI/ In argument, Mr. Moutsatsos develops three themes. First, he submits that there was sufficient cause to terminate on the basis that the Grievor's actions caused or contributed to the resident's injuries. While there was no suggestion of malice in any of her conduct, her actions were careless, reckless, and negligent. Secondly, even in the event that I were to find that discharge is excessive, counsel argues that reinstatement is inappropriate because the Grievor does not acknowledge any wrong-doing, has shown no contrition, and was not a credible witness. Thirdly, and in the second alternative, counsel submits that, in the event I reinstate, a lengthy suspension be substituted without back pay. The Employer's argument is predicated on two things: 1) that the Grievor, who must have been in a rush that morning, given the short-staffing, triggered the resident's response with rough-handling from the outset.; and 2) that the Grievor was not a credible witness and, as a result, I should make the finding sought in in 1) above and, in addition, find, consistent with her written statement, that DH was fully dressed, with bra and sweater on. On that basis, I should find a clear case of forced dressing, given Ms. Dams' evidence that the Grievor put the sweater on when DH was still resisting. It is submitted that if I make any finding of rough handling or forced dressing, I must find that the Employer has made out a case of resident abuse and that the termination should be upheld. It is submitted, as well, that the primary meaning of negligence - that things flow from one's actions - is underscored by the Grievor's conduct here, that DH's injuries were caused or contributed to by her failure to step back, to lower the chair or to prevent Ms. Dams from restraining the resident. The Employer relies on numerous cases. While those cases set out the high standard of conduct which healthcare providers are expected to meet and make clear that difficult residents do not exempt employees from that standard, concepts with which I fully agree, the cases deal with malicious conduct by employees and, in my view, are distinguishable from the facts before me. In my view, and for reasons that flow from the detailed fact finding set out above, I can find no basis upon which to sustain a termination. Aside the Grievor's having pulled DH's sweater over her head and shoulders, while DH continued to 13 resist, I can find no conduct that was remotely disciplinable. For the reasons which follow, I substitute a written reprimand for that action. That action, however, cannot be characterized as resident abuse and I so find. This case turns entirely on its facts and those facts are provided by the Grievor and Ms. Dams. On all material points, they agree. Where they do not, I have made my findings, with detailed reasons. While I have preferred Ms. Dams' evidence on certain secondary evidentiary matters, it is my view that these findings are not remotely fatal to the Grievor's overall credibility, given all the circumstances, and especially the Employer's failure to address discrepancies in their first statements and further clarify events before terminating the Grievor. While the Grievor's decision to bathe DH may well have been ill advised, she was not disciplined for that nor, at any time throughout the hearing, was it suggested that her decision to bathe DH could be the basis for discipline. Nor is there any evidentiary foundation for a finding that the Grievor "rough handled" DH in the bath or at anytime prior to Ms. Dams' arrival to assist the Grievor in lowering DH to the floor. It is mere speculation that the Grievor 'triggered' DH's fit. And speculation hardly meets the standard of "clear and cogent" evidence applicable to that serious allegation. I find, as the Grievor testified and as Ms. Israel seems to have found, that there was no obvious trigger to DH's sudden aggressivity and resistive behaviour and that its inexplicability is best put down to DH's dementia. It was not anything that the Grievor did. I find, and this was conceded by the Employer, that none of the Grievor's dressing of DH, prior to Ms. Dams arrival, was inappropriate. Certainly, none of it was forced. That brings us to the point where DH began to strike the Grievor and the latter realized that DH was slipping off the chair and that the belt had ridden above her breasts. This had never happened to the Grievor before; nor was there any suggestion that it had ever happened before at the Home. Certainly, neither of the two Management witnesses, who testified with such assurance about the proper thing to do, testified that they had personal experience with such a scenario. In my view, even 8 months later and after all of the Employer's scrutiny, the Grievor's actions - seeing the risk to DH, grabbing the sides of the chair and using her body to hold her from falling further, while being struck by DH - appears to have been the proper thing to do. She concluded that she could not hold the resident in place and reach the pedals to lower the chair, so she called for help. Ms. Israel found all of this reasonable. Ms. MacNeil and Ms. Johnston appear to be of the view either that the Grievor should have stepped back, which may well have resulted in DH slipping further and ultimately falling or, while holding DH in place, swivel the chair, reach the pedals, and lower the 14 chair. The former, in my view, is a silly suggestion. With respect to the latter, nothing in the Employer's evidence convinces me that this could be done. Ms. Israel did not opine that such a manoeuver was possible and Ms. Dams' evidence that, even with the two of them there, lowering the chair presented numerous difficulties, strongly suggests otherwise. The Employer conceded that calling Ms. Dams for assistance was appropriate and that the latter's having put DH's other shoe on, prior to lowering the chair, was not inappropriate. To the extent it was, it is hardly an action for which the Grievor can be held accountable. After lowering the chair, the co-workers decided that the belt, which had ridden up near DH's neck, had to be undone. There was no suggestion that this should not have been done or that 'backing off' was the appropriate thing to do at that point. Ms. Dams decided to restrain DH while the Grievor did that. I make no finding about the appropriateness of doing that. Frankly, I heard no evidence about when staff are allowed, for either their own safety or that of the resident, to restrain a resident. I have no difficulty in finding that much of the bruising was caused by Ms. Dams holding DH's arms. But I have great difficulty with the Employer's assertion that the Grievor is complicit in this. The Grievor was initially not aware that Ms. Dams was holding the resident and certainly not aware that she was using excess force in holding her. The notion that the Grievor was duty-bound to take the issue up with Ms. Dams, in the midst of these events, is unreasonable. There is a duty to report abuse. It is set out in the facility's Resident Abuse policy in the following terms: It is the responsibility and obligation of all staff members who observe resident abuse in any form to report the incident to a supervisor or manager immediately, otherwise that staff member will be deemed to share blame for the abuse. In my view, the Grievor met her 'obligation to report' by immediately apprising Ms. Israel of the these events. Given that the Employer does not challenge the appropriateness of their having pulled DH's pants up, and my finding that the only additional piece of clothing put on was the sweater, the Grievor's decision to pull the sweater over DH's head and shoulders, while DH continued to resist, can be the only basis of discipline in this matter. The Grievor did it without malice and for the best of intentions: to keep her warm and dignified. It was not motivated by any desire to impose her will on DH so, in my view, it falls well short of forced dressing. The 15 .. Grievor testified that she thought DH had calmed down a bit when she pulled the sweater over her head, but Ms. Dams' evidence was clear that DH continued to resist. The Grievor heeded Ms. Dams' prompt to 'just let her go', which suggests a clear-eyed ability to disengage from events. In my view, the appropriate penalty for pulling the sweater on is a written reprimand. It is minor misconduct only and a very long way from the grounds set out in the letter of termination. Caregivers are constantly negotiating the line between the resident's right, reasonable or otherwise, to refuse care and providing good and appropriate care. In the circumstances of this case, the need to ensure the resident's safety was paramount and appropriately informed most of the Grievor's action. But once DH's safety was no longer in doubt, the residents' rights model, which the Employer adamantly presses before me, is to trump concerns about comfort (being cold) and dignity. I vindicate that view and the concomitant one respecting the 'direction to back off' to the extent that I impose the written warning and no more. VI/I For all of these reasons, this grievance is allowed. The Grievor's termination is to be struck from her record and a written warning substituted. The Grievor is to be made whole in all respects and I remain seised. DATED AT BARRIE, ONTARIO THIS 8TH DAY OF NOVEMBER, 2005 ~R~- Dana Randall, Arbitrator 16