HomeMy WebLinkAboutForsythe/Union 15-11-17
In the matter of an Arbitration
Between:
Ontario Public Service Employees Union, Local 433
and
Ongwanada
Grievance of Kasaundra Forsythe
Andrew Tremayne, arbitrator
Appearances
Peggy Smith, Wendy Nield and Kasaundra Forsyth for the union
Vince Panetta, Alastair Lamb and Cindy Chappell for the employer
Hearing held on June 26, August 20, September 14, October 5, 6, 19 and 20,
2015 at Kingston, Ontario
Award issued on November 17, 2015 at Ottawa, Ontario
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1. Ongwanada provides services and support for individuals with disabilities and their families.
It runs programs from three sites and operates approximately 30 residences in the Kingston area. The
typical client of Ongwanada has a primary diagnosis of a developmental disability, and many have
additional challenges, including physical impairments. The clients who live in the residences are there
“24/7” and are never left alone. Some clients are severely disabled, in that they are non-verbal and
require constant supervision and assistance with many or all of their most basic personal care needs.
2. The grievor is a permanent part-time Community Support Worker who works most of her
hours at “Douglas”, which is one of the residences. The clients who live at Douglas are severely
disabled. One of these clients is named R. On May 15, 2015, the grievor’s employment was
terminated for engaging in physical abuse towards R. Specifically, the employer believed that on
April 15, 2015, the grievor dragged R from a hallway into the bathroom/tubroom. The employer’s
belief was founded on the eye-witness account of GL, another Ongwanada employee who was at
Douglas for an orientation. The union grieved the termination. The grievance was referred to
arbitration and I was appointed to hear the matter under section 49(4) of the Ontario Labour Relations
Act, 1999.
3. The union also filed a policy grievance claiming that the employer’s investigation of the
incident that led to the termination of the grievor’s employment was flawed. Because this grievance
arises out of the same set of facts as the first grievance, the parties agreed that I should hear both
grievances together.
4. The union submits that the grievor did not do what she is alleged to have done. That is, she
did not drag R from the hallway into the bathroom/tubroom. The employer has not shown, with clear
and cogent evidence on a balance of probabilities, that the grievor engaged in physical abuse towards
R, says the union. The union is seeking the grievor’s reinstatement with full redress. The grievance
should be dismissed, the employer submits, because GL’s evidence is clear and she had no motive to
lie about the incident. The employer agrees that I have the discretion to vary the penalty of
termination of employment, but submits that I ought not to do so in this case.
5. With respect to the second grievance, the union says that the employer’s investigation was
seriously flawed and that among other things, the employer did not follow its own policies and
procedures. The grievor was not informed of the allegation as soon as possible, says the union, and
this is contrary to the Collective Agreement. By way of remedy for this grievance, the union seeks a
declaration and a direction that the employer comply with the Collective Agreement. The employer
resists this allegation and says that it acted properly once the allegation was brought to its attention.
6. For the reasons set out below, the employer did not have just cause to terminate the grievor’s
employment. I find that the employer has not shown on a balance of probabilities that the grievor
engaged in physical abuse towards R. The first grievance is upheld. With respect to the second
grievance, I find that the steps taken by the employer during its investigation did not violate the
Collective Agreement. The second grievance is dismissed.
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Background
The Employer’s Policies and the Collective Agreement
7. The employer has a Code of Ethics and a policy on the Alleged Abuse of Ongwanada Clients.
Employees receive training on these and all other Ongwanada policies and procedures when they are
hired, and they are required to review them every year. Employees also attend a mandatory session on
Abuse Awareness. Staff who are involved in the direct care of residential clients receive site-specific
orientations. The grievor attended all of these sessions and signed various documents confirming that
she met all of the employer’s expectations with respect to her training and orientation and that she
was up to date with her annual policy and procedure review.
8. The policy on the Alleged Abuse of Ongwanada Clients begins as follows:
1.0 POLICY
Ongwanada will not tolerate any form of abuse. Abuse refers to any act or
situation which may be physical, emotional/ psychological, financial,
neglect or sexual in nature. Behaviour which demeans or infringes on
personal rights, dignity or places an individual's health and safety at risk will
also not be tolerated.
. . .
All reported cases of alleged abuse will be reviewed and any employee, in
which the abuse is substantiated whether in whole, or in part, will be
disciplined accordingly up to and including dismissal. In the case of Home
Share providers/volunteers Ongwanada will discuss appropriate actions to
be taken i.e. Civil, Criminal or Program action.
All matters involving allegations of client abuse shall be treated extremely
seriously and automatically reviewed by the Executive Director/designate.
Ongwanada's intent is to have incidents reported immediately and
reviewed promptly. Individuals who have been abused will be provided
with support, protection and confidentiality. All employees/Home Share
providers and volunteers will be supported in their efforts to prevent
abuse.
. . .
Ongwanada has a zero tolerance position with respect to client abuse.
Employee's/Home Share providers/volunteers have an obligation to report
all cases of suspected abuse regardless of circumstances or time elapsed.
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9. The section on procedure for reporting includes the following:
6.0 PROCEDURE FOR REPORTING
6.1 The employee/Home Share provider/volunteer suspecting an alleged abuse of
a client will immediately inform the area Supervisor. If the Supervisor is not
available the employee/Home Share provider/ volunteer will immediately
inform anyone of the Management Officials as listed in Section 3.2. If a
Management Official cannot be reached the Administrator-on-Call should be
notified immediately.
6.2 The employee/Home Share provider/volunteer will provide the area Supervisor
or Management Official/Administrator-on-Call with a written report, (Witness
Statement Report, Section 1.0), as soon as possible.
. . .
6.7 The Supervisor or Management Official/Administrator-on-Call will ensure:
6.7.1 Reasonable action is taken to protect the client from harm.
6.7.2 An immediate medical examination of the client is conducted by a
physician, including photographs, if appropriate. Factors such as location,
nature and when the alleged abuse occurred will be taken into
consideration.
6.7.3 The scene/evidence is protected whenever possible.
6.7.4 Employee's having knowledge of the incident may be required to remain
on Executive Director/designate or Inquiry team.
6.7.5 Completion of Witness Statement Report, Section 2.0 as soon as possible
or employee's/Home Share providers/volunteers Witness Statement
Report 1.0
. . .
10. The following provision of the Collective Agreement is relevant to the second grievance:
ARTICLE 32-INVESTIGATIONS
32.01 Any employee alleged to have violated the employer's standard of conduct
shall be informed as soon as possible of the allegation and informed that they
are entitled to have union representation whenever they are being
interviewed as part of an investigation. The employer shall provide the
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employee with a written letter of the outcome of the investigation within
twelve (12) calendar days after the investigation has been deemed closed by
the employer.
Douglas Residence
11. On the day of the incident, there were 5 clients living at the Douglas residence. All 5 clients
are severely disabled. They are non-verbal and require assistance with all of their basic needs,
including eating, getting dressed, bathing, and going to the toilet. They use wheelchairs to leave the
home and for outside activities. In that sense they are mobile, but they rely on Ongwanada staff to
transport them in a large van which is designed for non-ambulatory passengers. The employer trains
staff how to load and secure the clients using “Q’Straints” to secure their wheelchairs, and how to
safely operate the van. Some clients like to use their wheelchairs in the residence and some do not.
Some are able to move on the floor by crawling or “scooting” without assistance. During the school
year, the residents attend a day program at a center operated by Ongwanada. They are transported in
the van to and from the day program by staff.
12. The residence is staffed by Community Support Workers and Residential Counsellors. Both
classifications provide direct care to the residents and assist them with their basic needs, but the
Residential Counsellors have some greater responsibilities, including monitoring the clients’ support
plans, documenting and charting the clients’ condition, and administering medication. Residential
Counsellors have a “case load” and are the primary contact between the Ongwanada resource team
and their clients. At Douglas, one Residential Counsellor works a day shift and another works a night
shift, so there is always a Residential Counsellor at the residence. CL and TD are regular, full-time
Residential Counsellors, and they are usually assigned to Douglas.
13. In addition to providing basic personal care for the residents, Community Support Workers
assist with daily living in the home, including cleaning, cooking, shopping, doing laundry, and
driving the clients to the day program or taking them on other excursions in the van. During the
school year, the Community Support Workers are scheduled in split-shifts from 7:00 am to 10:00 am
and then from 2:00 pm to 7:00 pm. In the summer, their schedule changes because the residents do
not attend the day program. The grievor is a permanent part-time Community Support Worker, and
she works most of her hours at Douglas.
14. On the day of the incident, CL, TD and the grievor were working at Douglas. CL is a
Residential Counsellor, and her shift started at 8:00 pm the night before the incident and ended at
8:00 am on the day of the incident. TD is also a Residential Counsellor and her shift started at 8:00
am on the day of the incident. CL and TD have been working at Douglas for many years. The
grievor’s shift started at 7:00 am. She had been working at Douglas for approximately 2.5 years, first
as a casual employee and then in a permanent part-time capacity. She was approximately 7 months
pregnant at the time of the incident, and there was an accommodation plan in place which restricted
some of her duties. GL was also in the residence that day because she was doing an orientation shift
that was scheduled to go from 7:00 am to 10:00 am. This was the first time that GL had been to
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Douglas. Debbie McMullen, the Residential Supervisor for the Douglas residence, was there in the
morning to do GL’s orientation.
15. GL has lived in Canada since 2009. Before that, she had a career as a teacher and youth
counsellor in the country where she was born. Since 2011 she has worked at a developmental services
agency in the Kingston area (not Ongwanada) where her clients are high functioning individuals who
still require assistance with some of their daily life activities, such as medical appointments, finding
work, personal guidance and support, and some hygiene. GL was hired as a Residential Counsellor at
Ongwanada in February 2015. Prior to her orientation shift at Douglas on April 15th, GL did some
orientation and training with Ongwanada and site-specific orientation shifts at a couple of other
residences. New employees are required to attend organizational orientation, which covers the
employer’s policies and procedures, as well as site-specific orientation at the residences where they
will be working. By the time GL was doing her site-specific orientations, including the one at
Douglas, she had been fully trained and the employer expected her to be able to perform all of the
duties and responsibilities of a Residential Counsellor. These included, for example, the safe
administration of medications and the safe operation of the van.
16. R is one of the residents of Douglas. He is in his 20s and severely disabled. He is non-verbal
and cannot use of the left side of his body. He has Pica, which means that he will ingest or try to
ingest items that are not food. As a result, it is not safe for him to wear regular clothing, because he
may pick at it and ingest whatever he can remove. He wears a specially made one-piece sleeveless
outfit, which has a zipper and buttons on the back. R’s upper body is fairly well developed,
particularly on his right side. He is able to climb in and out of his (low) bed by himself using his right
arm. He can also lift his upper body onto a change table, again using his right arm and his core
strength. His left arm stays tucked close to his body. He is lifted into the bath, or into his wheelchair,
either from the change table or from the floor, by means of a sling and an electric lift. Without the
sling and lift, it takes two people to lift him, one grasping his torso from behind, and the other
grasping his knees from the front. R is able to move around the residence by “scooting” on his right
side. He lies on the floor on his right hip, and with his right arm bent at the elbow, he is able to propel
himself along the floor headfirst.
17. Douglas is a bungalow with four bedrooms, an open living room/dining room area, a kitchen,
a tubroom/bathroom and a laundry room. The main entrance, which is located on the side of the
house, off the driveway, opens into the living room. The living room/dining room area is at the front
of the house, and the kitchen is behind the dining room. The bedrooms, bathroom/tubroom, and
kitchen run from a hallway that goes from the living room/dining room area to the back of the house.
There is a bend in the hallway so that the bedrooms cannot be seen from the dining room. As one
walks down the hallway from the living room/dining room area towards the back of the house, there
are three bedrooms on the left. The laundry room, the tubroom/bathroom, and one other bedroom is
on the right. R and his roommate P are in the third bedroom on the left. The bathroom/tubroom is
diagonally across the hallway from R’s and P’s bedroom, with the bedroom located a bit farther
towards the back of the house.
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The Incident
18. GL says that on April 15, 2015, she arrived at Douglas at approximately 6:50 am. Her 3 hour
orientation shift was scheduled to start at 7:00 am. CL was there when GL arrived, and after they
introduced themselves, CL gave GL the residence’s orientation binder to review. CL and GL were
both sitting at the dining room table. The grievor arrived a few minutes later and went down the hall
towards the residents’ bedrooms. GL says that a few minutes later, she went down the hall to see what
the grievor was doing. She was in one of the bedrooms, says GL, tidying the beds. After the grievor
gave her some instructions about cleaning and tidying, GL returned to the dining room table to
continue her review of the orientation binder.
19. GL says that after a while, the grievor came to the living room and sat on a couch near the
dining room, taking a break. When the grievor got up and walked towards the hallway, GL says that
she decided to follow her so that she could learn more about the morning routine.
20. She says that as she followed the grievor, she saw R lying in the middle of the hallway. His
head was towards the living room/dining room and his feet were down the hallway towards the back
of the house. She says that he was on his back, parallel to the direction of the hallway. At the hearing,
a picture was drawn with GL’s assistance and approval, and that is what it shows. GL says that the
grievor, who was standing in the doorway to the bathroom/tubroom, took a step towards R, and using
her right arm, reached down and grabbed the material of R’s outfit at his right shoulder and dragged
him from the middle of the hallway into the bathroom/tubroom.
21. GL says that the grievor said to her “I don’t usually do that, but today is a busy day” or words
to that effect. GL says that she thinks that the grievor said this to her because she (GL) probably
looked shocked at what the grievor had just done, and the grievor was responding to her facial
expression. GL says that the grievor started to undress R on the floor, and then she (GL) left and
returned to the dining room table. She says that she pretended to continue to read the orientation
binder and tried to calm herself. GL says that she had never seen a client treated like this before. She
says that she was confused, because she was not sure that she wanted to work in a place where
something like this could happen.
22. GL says that after a few minutes, other staff arrived at Douglas, namely TD and Ms
McMullen, although GL is not sure who arrived first. By this time, GL says, the grievor had brought
R to the dining room table in his wheelchair for breakfast. TD and Ms McMullen introduced
themselves, and Ms McMullen asked the grievor what she had done so far. GL replied that she had
been reading the orientation binder. She asked GL if she had had a tour, GL replied that she had not,
so Ms McMullen took GL around the residence. After the tour, GL and Ms McMullen returned to the
dining room table. GL says that they discussed the residents’ support plans and their individual needs,
such as the type of assistance each residence require for eating. GL took notes of some of these
things, she says.
23. At some point, GL noticed that the food that CL had prepared for the clients’ lunches was
“rough” and did not look good. She says that she voiced her concern to CL and CL fixed it. GL also
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says that the grievor went outside a few times that morning for smoke breaks. After the grievor
brought R to the dining room in his wheelchair for breakfast, GL says, the grievor said that she was
hungry, made herself toast with jam in the kitchen, and then sat on the living room couch and ate it.
24. GL says that she did not tell anyone that day about what she saw when the grievor dragged R
from the hallway in to the bathroom/tubroom. She was afraid of doing so because she was new staff,
and that there were no other witnesses and no evidence of what she had seen, she says. GL had not
met CL, TD, Ms McMullen, or the grievor before that day.
How the Incident Came to Light
25. GL disclosed the incident to Wendy Marshall-Delonghi, a Residential Supervisor, on May 1st,
2015. Ms Marshall-Delonghi was replacing Ms McMullen, who was on holiday and who would
normally have dealt with the matter because she is the Residential Supervisor for Douglas. GL was
meeting with Ms Marshall-Delonghi on another matter, namely that GL had completed an incident
report about something that had happened while GL was working at Douglas on April 28th. There
were some errors in the report, and GL says that Ms Marshall-Delonghi met with her to discuss the
errors. By the time of her meeting with Ms Marshall-Delonghi, GL had been at Douglas twice: the
first time was for her orientation shift on April 15th, the day of the incident; the second time was April
28th, when GL worked the day shift. During the course of the May 1st meeting, Ms Marshall-Delonghi
asked her some questions about her experience at Douglas, and GL described the April 15th incident,
among other things.
26. On April 28th, GL was scheduled to work from 8:00 am to 1:00 pm, however other staff
called in sick so GL’s shift was extended to 6:30 pm. The grievor was not at Douglas that morning
because she had a meeting at the Ongwanada Resource Centre, and she did not arrive for work until
2:00 pm. The residents were at the day program, and are normally picked up from there in the van
around 2:30 pm – 3:00 pm and driven home to Douglas.
27. It is Ongwanada policy that whoever drives the van is also responsible for securing the
passengers’ wheelchairs to the floor of the van using the “Q’Straint” system. The system consists of
straps on the floor that must be pulled tightly, and the spaces between the wheelchairs are narrow.
The grievor was pregnant, and her accommodation plan, which had been in place since late February,
said that she was to be exempted from doing the work necessary to operate the “Q’Straint” system.
Because of the employer’s policy that the driver is also responsible for securing the passengers, the
grievor was also not supposed to drive the van while her accommodation plan was in place.
28. At some point in the afternoon of April 28th, the grievor told GL that it was time to “do the
van run” and pick up the residents. The grievor told GL that she (the grievor) could not drive the van
because of her pregnancy and the accommodation plan. GL expressed a reluctance to drive the van.
She says she expressed her reluctance because she was not comfortable driving the van. The grievor
called Ms Marshall-Delonghi, the on-call supervisor, and explained the situation. Ms Marshall-
Delonghi called GL and asked her to drive the van. GL again expressed her reluctance to do so. She
says that she told Ms. Marshall-Delonghi that if there was no other option, she would do so. There is
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some dispute as to the conversation that ensued between GL and the grievor, but eventually the
grievor drove the van both to and from the Resource Centre, and GL, possibly assisted by some of the
day program staff, secured the passengers for the return trip.
29. As the passengers were being loaded onto the van at the Resource Centre, one of them started
to hit and bite himself. He is prone to this behaviour, so wrist restraints and a helmet are kept nearby
even when he travels. These were applied, and eventually the grievor drove the van back to Douglas.
When she returned to the home, GL and the grievor unloaded the residents. The grievor showed GL
how to undo the “Q’Straints” and they brought the clients into the home. GL says that she went into
the dining room and started to write an incident report. She says that she was trained that if any
restraint is put on a client, a form must be completed and the supervisor notified. GL says that she
thought that she had to complete the report immediately, so she began to do so. This is the report that
Ms Marshall-Delonghi and GL were discussing on May 1st.
30. There is some dispute as to the conversation that ensued between GL and the grievor, but the
grievor ended up changing the diapers on all 5 residents. The grievor says that after she completed the
changing, she did not feel well, and that her belly and lower back were hurting. She completed an
employee incident report, noting that she had changed 5 clients by herself because the Residential
Counsellor (GL) would not help. She also called the Facility Coordinator to report her injury, which
is in line with Ongwanada policy.
31. GL eventually completed the incident report about having used the restraints on the resident,
and although there is some dispute about who, as between GL and the grievor, did what after that, the
residents’ dinner was prepared and they were fed. Because of the staff absence, the scheduler had
contacted CL, who was able to start her shift at 6:00 pm, which was 30 minutes earlier than
scheduled. GL’s shift had already been extended to 6:30 pm, and the grievor’s shift ended at 7:00 pm.
32. Returning to GL’s meeting with Ms Marshall-Delonghi on May 1st, GL says that she
described her experiences at Douglas on April 15th and 28th. She disclosed the April 15th incident
where the grievor is alleged to have dragged R from the hallway to the bathroom/tubroom to Ms
Marshall-Delonghi, she says, because as she described the other events of April 15th and 28th, Ms
Marshall-Delonghi was listening to her in a non-judgmental way, and she felt comfortable. GL says
that Ms Marshall-Delonghi asked her to write down what she had seen on April 15th but that she
declined to do so. She told Ms Marshall-Delonghi that she does not like writing, that speaking is
better for her, and that she did “not want to make it more of an issue,” or words to that effect. Ms
Marshall-Delonghi informed her superiors of GL’s allegation that on April 15th, the grievor had
dragged a client across the floor at Douglas. The report reached the Executive Director of Ongwanada
and the first investigation was launched.
33. The day before she met with Ms Marshall-Delonghi, GL sent an email to Ms McMullen
about the events of April 28th, not knowing that Ms McMullen was on holidays. The email is
approximately one page long, and GL describes what she did during the day shift on April 28th, which
started at 8:00 am and was extended to 6:30 pm. The second half of the email begins with a heading
in bold that says, “There were three things that there might be issues with during my shift.” Item “A”
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is, “changing the client’s diaper was challenging – I wanted to see how staff performed with this
first;” Item “B” is “driving a van was challenging – I was fully aware of my responsibility to do but I
told staff that I would drive if there is no option like no one is available for this time. The CSW staff
agreed that she would not mind driving.” There is no third item. GL proceeds to elaborate on these
first two points and then asks for patience because she is a new worker and the environment is
unfamiliar.
34. GL says that the third item that she was going to mention was the alleged incident where the
grievor dragged R from the hallway to the bathroom/tubroom on April 15th. GL says that she wrote a
description of the incident but then deleted it, because she wanted to see how Ms McMullen reacted
to the first two things she raised (“changing the client’s diaper” and “driving a van”) before she
reported the third item. GL says that she was still afraid to disclose the “dragging” incident because
she was new staff, but she still wanted her supervisor to know what had happened on her April 28th
shift. She deleted the description of the April 15th incident, GL says, but forgot to change the
reference to the number of items in her email from three to two.
The Employer’s First Investigation
35. The Executive Director assigned two managers to conduct an investigation into GL’s
allegation: Kim McCormick, the Coordinator of Residential and Client Services; and Kathy Doyle, a
Client Facilitator. Cindy Chappell, Coordinator of Human Resources was also informed of the
allegation and was told that an investigation would be conducted. Ms Chappell passed this
information along to the President of the OPSEU Local. Ms Chappell says that she told the Local
President about the allegation on May 3rd, right after she found out about it, but that she used the word
“misconduct” and not use the words “client abuse” because the investigation had not yet started and it
was premature to come to that conclusion.
36. On May 4th, Ms McCormick and Ms Doyle interviewed GL and the grievor. They also
interviewed Ms McMullen and Ms Marshall-Delonghi. They did not interview CL or TD. All of the
interviews were conducted separately, and Ms McCormick took notes. Although the purpose of the
investigation was to find out whether there was any evidence to support GL’s allegation that the
grievor had dragged R across the floor on April 15th, the notes show that both GL and the grievor
were also asked questions about the events of April 28th.
37. With respect to April 15th, the notes show that GL said that she arrived at 6:50 am and started
to read the orientation binder. She observed staff giving medications and breakfast to some of the
clients. GL said that the grievor arrived at 8:00 am and that she went out several times for smoke
breaks. GL told Ms McCormick and Ms Doyle that Ms McMullen arrived next. There are a few other
observations about the morning, and GL said that her experience was not positive. The interview
notes move to a very lengthy section titled “April 28th” before returning to April 15th and the
“dragging” incident. GL told Ms McCormick and Ms Doyle the following: R was lying in the
hallway, the grievor called him and then dragged him into the bathroom, the grievor commented that
“it is a busy time, we don’t usually do this” to GL, and that R was grabbed by the top of his jumpsuit;
there were no other witnesses.
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38. GL also told Ms McCormick and Ms Doyle that on April 16th, she told a co-worker at the
other developmental services agency where she works about the incident. GL identified that co-
worker as SD. SD also works at Ongwanada as a casual Facility Coordinator. GL told Ms
McCormick and Ms Doyle that SD strongly advised her to come forward and report the incident, but
that she (GL) figured that the next time that she and the grievor worked together, she would see what
happened, and that during the April 28th shift, she had no concerns. She added that when she saw SD
again on April 29th, he asked her how things were at Ongwanada and she told him that they were fine.
GL told Ms McCormick and Ms Doyle that at the time of the incident, she did not feel confident
enough to address and confront the grievor about the incident. This was the first time that GL told the
employer that she had discussed the incident with SD on April 16th. GL signed the notes that were
taken of her interview. Ms McCormick and Ms Doyle did not interview SD.
39. Ms McCormick and Ms Doyle interviewed the grievor in the presence of a union
representative. According to the notes, it appears that the grievor was asked to respond to comments
that a client in a jumpsuit was in the hall and that she (the grievor) had dragged him into the
bathroom. The grievor responded by describing the routine for changing the clients at Douglas,
particularly R. It is not clear that the grievor was describing her recollection of April 15th, because she
mentions that GL changed one resident and she (the grievor) changed the others. There is no dispute
that GL did not change any clients on April 15th. The grievor continued to describe her recollection of
the events of April 28th. She also noted that R is sometimes changed in the hallway or in his bedroom
if he refuses to move, and it is “very heavy to move this client” or words to that effect. She added that
she uses the lift for R in the morning, which is the protocol for bathing him. Again, it is not clear from
the notes if the grievor’s comments in this regard were directly responsive to the proposition that she
dragged R from the hallway to the bathroom on April 15th or if she was responding to other questions.
The grievor signed the notes that were taken of her interview.
40. The notes from the interview of Ms McMullen suggest that she was asked questions such as
whether R is ever on the floor at Douglas. Other comments are noted but they do not appear to
address the April 15th incident. The notes from the interview with Ms Marshall-Delonghi summarize
her conversation with GL on May 1st. They appear to include information about both April 15th and
April 28th. Neither Ms McMullen nor Ms Marshall-Delonghi signed the notes that were taken of their
interviews. As noted above, Ms McCormick and Ms Doyle did not interview CL or TD even though
they were at Douglas when the incident was alleged to have happened.
41. Ms Chappell says that after Ms McCormick and Ms Doyle completed their interviews, a
follow-up meeting was held. Ms Chappell, the Executive Director, the investigators and some other
senior managers attended. Ms McCormick and Ms Doyle gave a synopsis of the interviews. At some
point during the meeting it became apparent that some questions had not been asked, and that it was
not clear what had actually happened on April 15th with the grievor and R. Ms Chappell says that she
could not understand why there was so much information about April 28th in the interview notes. It
was decided that more information was needed, and that she and Ms McMullen would start over and
go through the same investigation process.
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The Employer’s Second Investigation
42. Ms Chappell says that in addition to discussing the notes that Ms McCormick and Ms Doyle
had taken during the first investigation at the follow-up meeting, she also reviewed the notes before
the second interviews were conducted. They planned to interview GL, the grievor, and CL, because
they were the three people that she and Ms McMullen thought needed to be interviewed, Ms Chappell
says. They would also interview SD, whose name had come up for the first time when Ms
McCormick and Ms Doyle interviewed GL. They did not plan to interview TD, nor did they plan to
re-interview Ms Marshall-Delonghi.
43. Ms Chappell informed a member of the executive of the OPSEU Local that the witnesses
needed to be re-interviewed to get a clearer picture of what had taken place. The union executive
expressed concern about the amount of time that it was taking to get the matter resolved and that it
was stressful for the grievor, says Ms Chappell. She acknowledged this, she says, but told the union
that she would rather do everything possible to arrive at a fair outcome, and that it was better to do it
right than to do it fast, or words to this effect. Ms Chappell says that this conversation took place on
or about May 10th or 11th.
44. The second interview with GL took place on May 12th. Both Ms Chappell and Ms McMullen
took notes. Ms Chappell took the lead and from time to time Ms McMullen would jump in and ask
for further clarification. GL was informed that she could have a union representative attend the
meeting, but she declined. GL was told that more specific information was needed, and she was asked
to explain the allegation that she had brought forward. GL described her arrival at Douglas. She said
that she arrived at approximately 6:55 am and was greeted by CL. CL gave her the orientation binder
and she started to read it at the dining room table. The grievor arrived soon thereafter. GL said that
she got up from the dining room table, went down the hallway, and saw that the grievor was tidying
one of the bedrooms. GL returned to the dining room table and saw that CL was taking one of the
residents’ blood pressure and that TD had arrived. GL said that she went back down the hallway and
saw R on the floor in the hallway between the bedroom and the bathroom/tubroom. The grievor was
in the bathroom/tubroom calling R to come to the bathroom/tubroom. GL said that the grievor
grabbed R’s left shoulder with her right hand and pulled/dragged him into the bathroom/tubroom.
45. GL said that the grievor told her that it was a busy day and that she would not normally do
this. GL said that she assumed that the grievor said this because of her reaction of surprise and
disapproval. The grievor then proceeded to undress R, GL said, and she returned to the dining room.
GL said that she was confused as to whether or not this was acceptable and asked herself whether this
was abuse. After a while, R came to the dining room in his wheelchair for breakfast. Ms McMullen
arrived shortly thereafter and started the site-specific orientation.
46. GL told Ms Chappell and Ms McMullen that the incident continued to be on her mind, and
that when she was working the next day at the other developmental services agency, SD asked her
about her job at Ongwanada, and she shared the incident with SD. GL says that SD encouraged her to
report it. GL said that she was reluctant to do that because there were no other witnesses.
12
47. Ms Chappell says that after her interview with GL, she looked at the notes from the first
interview to see if GL’s accounts of the incident were consistent, and that she concluded that they
were.
48. Ms Chappell and Ms McMullen interviewed CL on May 13th. Both interviewers took notes,
and a union representative was present. Ms Chappell says that prior to the interview, she reviewed the
Douglas logbook to see if anything unusual had been noted. CL’s notes in the logbook about her 8:00
pm to 8:00 am shift indicated that it was a routine morning. CL told Ms Chappell and Ms McMullen
that she had already bathed three of the residents, as usual, and brought them to the dining room for
breakfast when GL arrived at approximately 7:00 am. CL said that she gave the orientation binder to
GL and then took her on a quick tour of the house. At some point during the tour, CL opened R’s
bedroom door to wake him up. CL and GL returned to the dining room and GL continued to review
the binder. The grievor arrived shortly before 7:00 am. CL said that she asked GL three times to go
and watch the grievor bathe R and eventually GL went down the hallway to do so. GL was down the
hallway for a short time, said CL, and then she returned to the dining room table. CL told Ms
Chappell and Ms McMullen that GL did not say anything at all when she returned.
49. CL said that GL watched her take one resident’s blood pressure, after which CL reviewed
some information about food preparation, dietary requirements, and the residents’ behavioral support
plans with GL. CL told Ms Chappell and Ms McMullen that she did not recall hearing anything (such
as a conversation) coming from down the hall while GL was there to observe the grievor and R,
although conversations can be heard from the dining room. CL said that R usually responds when
asked and that food is a good motivator. She does not use the lift to move R, she said, because if you
wait he usually responds. She told Ms Chappell and Ms McMullen that April 15th was not a
particularly hectic morning, although having to do an orientation can sometimes slow things down. at
the end of the interview, CL signed Ms Chappell`s notes after making a small correction to the
grievor`s arrival time at Douglas.
50. Ms Chappell and Ms McMullen interviewed the grievor on May 14th. Both interviewers took
notes, and a union representative was present. The grievor described her recollection of the morning
of April 15th. She said that she arrived at Douglas at approximately 6:55 am. When she went down the
hallway to R’s room, he was already in the bathroom/tubroom leaning against the change table. She
said that she prompted him to get onto the change table. She started to run his bath and went to get his
clothes and his sling, she said. R was still not on the change table, so she lowered him to the floor,
undressed him, put the sling underneath him, and used the lift to move him into the tub. Ms
Chappell’s notes say that the grievor said that she explained to GL that R sometimes won’t get on the
table, so it’s easier to let him stay on the floor to change him. Ms McMullen’s notes do not mention
this.
51. The grievor said that by the time she was using the lift to put R into the tub, GL had left.
After she removed R from the tub and moved him to the change table using the lift, she dried and
dressed him, and then used a dry sling to move him to his wheelchair. The grievor said that GL
returned to watch her put R into his wheelchair. She shaved R and brought him to breakfast. TD
13
arrived at approximately 8:00 am and told her that one of the residents was going to go to a local
hospital for bloodwork that morning, but that other than that, it was a routine day, she said.
52. Ms Chappell says that she explained the allegation to the grievor. She told the grievor that
there was an allegation that she had dragged R along the floor from the hallway into the bathroom.
Ms McMullen’s notes say that the grievor started to cry. Ms Chappell’s notes do not mention this.
The grievor said that she did not pull R, and that she thought that the allegation was being made
because she had reported GL for not doing her work on April 28th when the grievor was injured by
changing all of the residents herself. The grievor then described her version of the events of April
28th. The grievor signed Ms Chappell’s notes of the interview without making any changes.
53. Ms Chappell says that after her interview with the grievor, she looked at the notes from the
first interview. She decided that the confusion after the first investigation about whether the grievor
had been asked to respond to the events of April 15th or April 28th had been addressed, and that she
was satisfied that the grievor had had a fair opportunity to describe her version of the events of April
15th in the second interview.
54. Later on May 14th, Ms Chappell contacted SD by phone. She made notes of the conversation.
Ms Chappell says that Ms McMullen was in the room with her and listened to the conversation on
speaker but did not take notes. SD told Ms Chappell and Ms McMullen that he had been keeping tabs
on how GL was doing at Ongwanada. GL had told him that she was concerned about how the clients
at Douglas were being treated, SD said, and that GL felt that she had not had adequate training, for
example in bathing the clients. SD said that GL described to him an incident where a gentleman was
dragged to quicken the routine. SD said that GL described the person who had done this, and that it
was clear that it had been the grievor. SD told Ms Chappell and Ms McMullen that he thought the
conversation with GL had taken place on April 15th or 16th, and after he consulted his schedule, he
confirmed that it had been the 16th.
55. Ms Chappell says that SD also told her that GL had been distressed when she described the
incident to him, and that she told him that she thought it was abuse. SD said that he told GL that if she
felt it was abuse, she should report it, Ms Chappell says. SD told her that he did not report it himself
either, but that he later asked a senior manager at Ongwanada whether GL had reported the incident,
and he said that he was told that she had. Ms Chappell did not make notes of this part of the
interview.
56. Ms Chappell says that she and Ms McMullen did not interview any other witnesses and that
at this point, they closed their investigation. She says that they concluded that the incident described
by GL did occur. She says that there was no information that led them to believe that GL would lie or
make up the incident. The fact that GL told SD about the incident shortly after it occurred took away
any doubt that it had been fabricated in retaliation for the grievor’s complaint about GL not doing her
fair share of the work on April 28th, she says. Also, GL worked for another developmental services
agency, so she would know what is and what is not acceptable, says Ms Chappell. She had been
trained in Ongwanada’s client abuse policies and she had experience with the disabled community.
She and Ms McMullen could find no reason why GL would make up the incident, and there was no
14
reason for her to lie, so they felt that she was telling the truth. They concluded that what the grievor
had told them was false, because she and GL could not both be telling the truth.
57. The same senior management team that had met after the first investigation reconvened
(minus Ms McCormick and Ms Doyle). Ms Chappell and Ms McMullen shared their conclusion with
the group. It was decided that what had occurred was client abuse, and that the grievor would be
disciplined consistent with Ongwanada’s policies and the seriousness of the incident. Alternatives to
the termination of the grievor’s employment were discussed, but in light of the organization’s zero
tolerance policy and the conclusion that abuse did occur, it was decided that the grievor could not be
trusted to be with the clients. As a result, her employment was terminated by letter dated May 15,
2015.
The Parties’ Submissions
58. The employer submits that there are four important themes in the case law which are relevant
to this matter. First, there is a higher duty of care and a higher duty of truthfulness on health care
workers, particularly in settings where the client population is very vulnerable. Second, there are
some special considerations when determining the credibility of witnesses in matters such as these.
Third, an incident such as the one described by GL constitutes client abuse. The fourth relates to the
factors that ought to be weighed if any consideration is being given to substituting the penalty
imposed by the employer for similar incidents.
59. With respect to the first theme, the parties agree that there is a higher duty of care and a
higher duty of truthfulness on health care workers, particularly in settings where the client population
is very vulnerable. The parties also agree that the onus is on the employer to prove its case on a
balance of probabilities based on clear and cogent evidence. In terms of applying those considerations
in the context of a case where client or patient abuse is alleged, a case submitted by the union is
useful. Arbitrator Keller in Westgate Lodge v. Service Employees International Union, Local 183
(Waite grievance) [2005] O.L.A.A. No. 86 (February 11, 2005) formulated the appropriate test as
follows:
51. The determination of this matter turns on how the Board assesses the
credibility of the various witnesses and the conclusions it is able to draw from both
the documentary and viva voce evidence. Before analyzing the evidence it is useful
to recall the standard of proof that applies in this case. Both parties agreed that the
onus is on the employer to prove the allegations on a balance of probabilities based
on clear and cogent evidence. There are two elements to this. The first is a balance
of probabilities. This means that the Board must be satisfied that when all the
evidence is weighed the preponderance leans towards a finding that the grievor
committed the allegations as alleged by the employer: that it is more likely than not
that the events took place as alleged by the employer.
52. The second element is that the evidence must be clear and cogent. This
phrase has been the subject of much interpretation in arbitral jurisprudence through
15
the years. In summary, the Board believes that a fair definition of the phrase is that
the evidence will produce a firm belief or conviction as to the allegations sought to
be established. In order to do that the evidence must withstand scrutiny such that
when it is considered as a whole it allows the Board to reach its necessary
conclusions.
53. Thus, first the evidence must be clear and cogent. If it is, it then has to be
considered in order to determine if the balance of probabilities supports the
employer's position. If the evidence is not clear and cogent, that does not
necessarily end the matter but clearly it, at the very least, makes the task of proving
the allegation exceptionally difficult.
60. The employer submits that as long as there is clear evidence about the abusive incident,
inconsistencies or differences in the evidence regarding peripheral events are not fatal. In the
Canadian Union of Public Employees and its Local 2345 v. Community Living Windsor (90 C.L.A.S.
264, August 27, 2007) (Watters), two witnesses claimed to have seen the grievor physically abuse a
disabled client who resided in an apartment building by dragging him through a doorway. The two
witnesses claimed to have seen this on a closed-circuit channel that displays real-time images from
the building’s lobby to residents on their TVs. As between the two witnesses, there was some
uncertainty as to whether the grievor used her left or right arm, or both, to drag the resident. But the
Board found that both witnesses clearly observed the grievor drag the resident through the door. In
other words, even if there are inconsistencies in the accounts of witnesses who observe the core event,
this does not negate an assessment that their core observation is credible and truthful, argues the
employer.
61. It is also appropriate for me to consider motive when I assess the credibility of witnesses,
submits the employer. In Windsor Community Living Support Services and C.U.P.E. Local 2345 (27
C.L.A.S. 590, September 3, 1992)(Williamson), the grievor was accused of making a threatening
gesture towards a disabled client, an allegation that the grievor denied. Another worker in the home
claimed that she saw the grievor attempt to strike the client, although she was some distance away.
There was other circumstantial evidence that supported the allegation, and the Board also found the
grievor’s credibility wanting. The witness was more credible, as she was well positioned to see what
she said she saw, and she had no motivation to lie, because as a part-time employee who was about to
return to law school, she had no vested long-term interest in her job with that employer. The grievor,
on the other hand, had a motivation to lie (the preservation of his employment) or at least to be vague
about his recollections about what he was doing with the resident at the time he was alleged to have
threatened him.
62. With respect to the third theme, the parties agree (as does the grievor) that the incident, if it
occurred as described by GL, is client abuse. For reasons set out in detail below, it is not necessary
for me address the fourth theme, as it is not necessary for me to consider varying the penalty imposed
by the employer.
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63. The employer submits that the case comes down to GL’s clear recollection that the grievor
dragged R from the hallway to the bathroom/tubroom on April 15th in contrast to the grievor’s blanket
denial that the incident took place. There is no way to reconcile the two different accounts of what
took place, argues the employer, and it comes down to an assessment of credibility. SD’s evidence
that GL described the incident to him on April 16th stands by itself and has not been contradicted in
any way, submits the employer. On April 16th GL had no motivation to fabricate the incident because
the issues between the grievor and GL that occurred on April 28th and which caused the grievor to
complain about GL had not happened yet. This piece of evidence is key to my assessment of GL’s
credibility, the employer says.
64. With respect to the other elements of GL’s account of the incident, she was new to
Ongwanada and April 15th was the first time that she visited Douglas. It is understandable that GL
may not have drawn the layout of the hallway, bedrooms, and the bathroom/tubroom correctly.
English is not her first language, so she is not able to describe some things using the words that a
native English speaker would. However, GL was very clear about what she observed when she says
that she saw the grievor drag R from the hallway to the bathroom/tubroom, submits the employer. On
the other hand, the grievor has a motive for denying that the incident occurred, and that is to get her
job back. I should examine the motives of GL and the grievor very carefully when I assess their
credibility, argues the employer.
65. The union submits that there are many problems with the employer’s investigations.
Questions were not written down, key witnesses were not interviewed, and there was a very
significant delay between the incident and the investigation. GL refused to put her allegation in
writing: to this day, there is still no written account from her of what she alleges took place on April
15th. There is also no written report on the outcome of the investigation. GL had many opportunities
to report the incident to the employer before May 1st but she did not. The union submits that GL never
formally reported the incident in writing because she did not want to be pinned down, and this is
because the incident did not happen. These things also made it very difficult for the grievor to
respond to the allegation, says the union, so the grievor was left with little choice but to simply deny
that the incident had happened.
66. Furthermore, argues the union, if GL’s description of the incident to SD on April 16th was so
important, the employer ought to have interviewed SD more carefully and more thoroughly. Instead,
there was a very brief telephone conversation with him. GL and SD were not just co-workers – SD
had acted as a reference for GL in connection with her application for work at Ongwanada, says the
union. No questions were asked about this during the investigation, although the information could
have been uncovered easily.
67. GL wrote the April 30th email to ensure that she appeared in the best possible light with her
employer, says the union, because she knew that she had been trained to drive the van but refused to
do so. She had also been shown how to change the clients’ diapers, but she did not help the grievor,
who had to change all 5 clients by herself. The email is all about GL being a good employee and
about her trying to keep her job after the problems of April 28th. There is no reason to believe that the
“third thing” was the April 15th incident, argues the union, because the reference at the start of the list
17
is to “three things that there might be issues with during my shift” and the shift that GL refers to at the
top of the page is the April 28th shift. She had a clear opportunity to report the April 15th incident on
April 30th in writing, and she did not. The union submits that this is because the incident did not
happen.
68. With respect to the actual dragging incident, the union submits that it could not have
happened as GL describes it. The picture that was drawn at the hearing cannot be accurate. Many
details simply aren’t correct: details such as R lying on his back with his hands up; R lying straight in
the hallway as opposed to diagonally between the bedroom and the bathroom/tubroom; the grievor
bending and reaching to grab R; and GL’s description of the distances and dimensions of the hallway.
GL’s evidence about many of these important details has also changed. It is highly unlikely, argues
the union, that the grievor could have bent down, reached forward, grabbed and dragged R in the
manner described, and still have been able to look up and see GL’s facial expression, allegedly
prompting her to make the “we don’t normally do this” comment. GL took contemporaneous notes
about other things that she wanted to remember from her April 15th orientation, but she made no notes
about the incident. All of these things show that GL’s account is not credible, submits the union.
69. On the policy grievance, the union argues that there is a duty to report an alleged incident of
abuse immediately. Similarly, it is clear from Article 32.01 of the Collective Agreement that an
employee who is alleged to have violated the employer’s standard of conduct “shall be informed as
soon as possible of the allegation.” A respondent also needs to understand the full particulars of the
allegation against them, submits the union. GL did not report the allegation immediately, nor did SD
when he became aware of the allegation. All of this made it very difficult for the grievor to respond to
the allegations against her, the union says.
70. The employer says that as soon as Ms Marshall-Delonghi was aware of the allegation, the
investigation process started. The grievor was interviewed just a few days later. The employer
responded to the report of the allegation and the grievor was informed as soon as possible. There was
no violation of the Collective Agreement, argues the employer.
Analysis
The Employer’s First Investigation
71. The first investigation did not begin until 19 days after the alleged incident. Although the
employer acted promptly once the incident came to light on May 1st, this is still a significant delay. A
review of the notes shows that Ms Doyle and Ms McCormick spent roughly an equal amount of time
gathering information about April 15th as they did about April 28th. It is not clear why. It is also not
clear if the investigators were aware of who was working at Douglas on the day of the alleged
incident and what time their shifts started and ended. If they had been aware of these things, it is
likely that GL would have been asked to clarify her statement that the grievor arrived for her shift at
8:00 am. It is also likely that CL and TD would have been interviewed. It also does not appear that
Ms McMullen was asked any questions about what she saw or heard when she was at Douglas on
April 15th, although she was there to give GL her site-specific orientation.
18
72. It is equally unclear whether Ms Doyle and Ms McCormick were aware of R’s physical
characteristics. For example: how he lies on the floor, how he moves, what his build is like, how
much he weighs, etc. Similarly, it is not clear that Ms Doyle and Ms McCormick were aware that the
grievor was approximately 7 months pregnant, and that because there was an accommodation plan in
place for her that limited her duties with respect to doing up the “Q’Straints” this may have also
affected her ability to drag R as alleged (perhaps as indicated by her injury at work on April 28th as a
result of her changing all 5 clients without assistance). A greater awareness of any or all of these
things might have caused Ms Doyle and Ms McCormick to ask GL more detailed questions about
exactly what she saw on April 15th.
73. Overall, the questions that GL was asked did not solicit enough information for a reasonably
informed person to determine if what she was describing was likely to have occurred or was even
physically possible. Among other things, the locations and positions of the parties are not clear and
the distances are not clear. GL was not asked to visit Douglas with the investigators nor was she
asked to produce a drawing. Although GL signed Ms McCormick’s notes, it is not clear whether or
not she was asked to complete a written statement or an incident report as part of the first
investigation. In any event, she did not. As a result, there is no clear picture or description of exactly
what the grievor was alleged to have done to R.
74. As it was, the information gathered from GL was barely adequate to allow the grievor to
respond to the allegation. And because there was no clear picture or description of exactly what the
grievor was alleged to have done to R, it was not possible for the grievor to have made a complete
response to the allegation. Moreover, because of the unique way that R lies on the floor and moves, as
well as some of R’s other characteristics, such as his weight and his build, the grievor was in no
position to tell her interviewers whether she thought that what she was alleged to have done was even
possible.
75. I also note that SD was not interviewed in a timely manner despite the fact that on May 4th,
GL told Ms Doyle and Ms McCormick that she (GL) had described the incident to him. CL and TD
were not interviewed. These decisions, which were never explained, cast serious doubt on the
thoroughness of the first investigation.
76. In any event, the employer concluded correctly that the first investigation was inadequate,
and that a second investigation was necessary.
The Employer’s Second Investigation
77. The interviews for the second investigation began on May 12th, which was 27 days after the
incident. Ms Chappell and Ms McMullen were placed in charge, although Ms McMullen was
interviewed as part of the first investigation and she was at Douglas the morning of the alleged
incident. She interacted closely with GL on April 15th because she conducted most of the site-specific
orientation. Even if Ms McMullen’s evidence was that she did not hear or observe anything unusual
at Douglas that morning and that she did not see any signs of distress or discomfort on GL, this is still
evidence. She was therefore a possible witness for the second investigation, although there is no
19
evidence that the employer considered this. The plan was to interview CL but not TD. It is not clear
why. Ms Marshall-Delonghi would not be re-interviewed, although she was the first manager and the
first person (other than SD) to whom GL disclosed the incident. SD would be interviewed, because
the first investigation uncovered GL’s evidence that she had spoken to him about the incident on
April 16th.
78. Although the notes from the second interview with GL show that the questions are focused on
the April 15th incident, the locations and positions of the parties and the distance that R is alleged to
have been dragged are still not clear. GL was not asked to visit Douglas with the investigators nor
was she asked to produce a drawing. GL did not sign Ms Chappell’s or Ms McMullen’s notes, and it
is not clear whether or not she was asked to complete a written statement or an incident report. In any
event, once again, she did not. GL was interviewed for the second investigation nearly one month
after the alleged incident. In the meantime, the employer was aware of GL’s April 30th email to Ms
McMullen regarding the events of April 28th. In fact, GL says that she drafted a description of the
incident but deleted it. It is reasonable to conclude that she was capable of completing an Incident
Report, or a Witness Statement Report, or submitting a written description of the April 15th incident.
Without something in writing from GL, many of the details surrounding the incident remained vague,
and many other details changed. Among other things, this made it more difficult to put a clear,
consistent description of the incident to the grievor. It also made it more difficult to examine GL’s
description for inconsistencies or to detect changes in her description as time passed. The decision to
proceed in the absence of something in writing from GL was not necessarily fatal to the second
investigation, but it ought to have alerted the employer to the need to proceed with great care,
especially since it was already almost one month after the alleged incident.
79. The picture or description that emerges of exactly what the grievor was alleged to have done
to R is somewhat clearer than it was after the first investigation, but there are still many questions left
unasked and unanswered. For example, in the first investigation, the notes show that GL said “R was
grabbed by the top of his jumpsuit.” In the second interview, the notes say that the grievor used her
right hand to grab R’s left shoulder. There is no reference to the jumpsuit. Ms Chappell says that she
asked GL to describe how the grievor dragged R, and that if GL had mentioned the jumpsuit, she
would have probed further. GL had already mentioned the jumpsuit in the first investigation, and Ms
Chappell had those notes. This is an important detail, because dragging R by top of the jumpsuit
could have caused distress to R (made him very uncomfortable or possibly choked him). It is also
much different from grabbing and dragging someone by the shoulder. GL may have been changing
her account of the incident, but this was not clarified. It is also not clear that Ms Chappell and Ms
McMullen were fully aware of R’s physical characteristics and his method of moving himself. It is
reasonable to conclude that if they were, GL’s description of the incident would have been probed
more thoroughly.
80. Another example of a line of inquiry that probably ought to have been pursued during the
second investigation flows from GL’s statement in the first investigation that the grievor went out
several times for smoke breaks during the morning of April 15th. There is no reference to this in either
set of notes from GL’s second interview. This is important, because although the grievor was
pregnant at the time, she says that she still smoked sometimes, but only ever in the afternoons,
20
because smoking in the morning made her nauseous. It is also not clear when, if at all, there would
have been time for the grievor to have taken a smoke break (let alone several) because the morning
routine is quite busy. GL may have been changing her account of the incident, but this was not
clarified at the time of the interview, and it was not until the hearing that the grievor was asked about
the smoke breaks.
81. There are also some inconsistencies between the two sets of notes that were taken in the
second investigation. Most are very minor, but some could be significant. For example, Ms
Chappell’s notes from the interview with GL say that the grievor was in the bathroom/tubroom
calling R to come to the bathroom/tubroom. GL said that the grievor grabbed R’s left shoulder with
her right hand and pulled/dragged him into the bathroom/tubroom, and that GL said that the grievor
told her that it was a busy day and that she would not normally do this. The notes say that GL said
that she assumed that the grievor said this because of her reaction of surprise and disapproval.
However, Ms McMullen’s notes say that GL said that the grievor called R to come to the
bathroom/tubroom and that he was not listening. Next, the grievor looked at GL and said “today’s a
busy day” and then pulled R from the hallway to the bathroom. This is more or less consistent with
the notes from the first investigation, but it reverses the order of the pulling and the grievor’s alleged
explanation for it; it also omits GL’s comment that the grievor must have said this because of GL’s
reaction of surprise and disapproval. In fact, if the sequence of events had happened in that order, the
“reaction to the facial expression” explanation for the comment becomes entirely unnecessary. It calls
into question when, and how, and perhaps even if, the grievor could have looked up and seen GL’s
facial expression. Again, in the absence of a written statement from GL, it becomes extremely
difficult to assess the significance, if any, of these discrepancies.
82. A review of the notes from the second investigation also shows that few if any of the
questions that the witnesses were asked were written down. As a result, when Ms Chappell gave
evidence at the hearing about how GL’s allegation was put to the grievor, she relied on her memory,
and she was not sure whether the grievor had been told that she was alleged to have used her right
hand to grab R’s left shoulder, for example. Ms Chappell also gave evidence at the hearing about
what the grievor was told about what she was alleged to have said to GL (the “we don’t normally do
this” comment), and because there are no notes about the grievor’s response, that evidence was also
given from memory. Ms Chappell also relied on her memory for her evidence about where GL said
she was standing and where the other staff were during the incident. These important details should
have been written down at the time the witness was interviewed.
83. Overall, the information gathered during the second investigation was sufficient to allow the
grievor to respond to the allegation. However, because there is still no clear picture or description of
exactly what the grievor was alleged to have done to R, it was once again not possible for the grievor
to make a complete response to the allegation. Because of the unique way that R lies on the floor and
moves, as well as some of R’s other characteristics, such as his weight and his build, the grievor was
in no position to express a view as to whether it was even possible for her to have done what she was
alleged to have done.
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GL’s evidence at the Hearing
84. The evidence that GL gave at the hearing with respect to how the grievor grabbed and
dragged R is very difficult to reconcile with the statements she made during the second investigation.
On May 12th, she told Ms Chappell and Ms McMullen that the grievor used her right hand and
grabbed R’s left shoulder. At the hearing, she says that grievor used her right hand and grabbed R’s
right shoulder, also confirming that she saw the grievor grab the material of his jumpsuit. These
details are significant. At the hearing, GL relied on her own memory of the incident when she gave
her evidence. She had made some notes during her orientation visit about the diet and eating
requirements of some of the residents, but no notes about the incident. At the hearing, she showed the
notes that she had made, and there were some notes about the incident in slightly different writing.
The notes do not say much beyond a very general description of the incident. GL says that she does
not know when she made those notes. All of these things call into question the accuracy of GL’s
recollection of the April 15th incident.
85. At the hearing, GL was asked about the statement she had made during the first investigation
about the grievor going out several times for smoke breaks during the morning of April 15th. GL
confirmed her recollection that the grievor had done this. GL also says that at one point, after one of
the smoke breaks, the grievor said that she was hungry, made herself toast and jam, and ate it. GL did
not mention (or was not asked about) the smoke breaks during the second investigation. The grievor’s
alleged statement about her being hungry and making and eating toast with jam not mentioned in
either the first or second investigation. The grievor says that at that point in her pregnancy, she was
nauseous in the mornings, so she did not smoke in the morning or eat breakfast. She also says that she
does not like jam. The grievor says that she did smoke from time to time during her pregnancy, just
not in the morning, and she says that she did take a smoke break at Douglas in the afternoon of April
28th. These things suggest that GL may be confusing some elements of what happened on April 28th
with what happened on April 15th, again calling into question her ability to accurately recall the
incident.
86. GL was also asked about the events of April 28th at the hearing. She says that the grievor
never asked her to drive the van. She told Ms McMullen that she would drive if there was no other
option, but in the end, she says, the grievor agreed that she would drive. GL insists that the grievor
never asked her to drive the van. The grievor, who had an accommodation plan that resulted in her
not having to drive the van, says that she asked GL to drive. GL had been trained on the van and was
expected to be fully qualified to perform all of the duties and responsibilities of her position, which
included loading the van, securing the passengers in their wheelchairs using the “Q’Straint” system,
and driving the van. The grievor reasonably expected GL to be able to drive the van on April 28th, and
it is difficult to believe that the grievor never asked GL to do so.
87. There are other problems with GL’s evidence. In the first investigation, GL told her
interviewers that when she was asked to drive the van on April 28th, she felt unwell and said that she
did not want to drive. In her April 30th email to Ms McMullen, GL never mentions that the reason that
she did not want to drive the van was because she felt unwell. In fact, her explanation on April 30th is
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that driving a van is challenging, and that she was fully aware of her responsibility to do so, and that
she told the grievor that she would drive if there was no other option.
88. GL was also asked at the hearing about why she did not change any of the clients after they
returned to Douglas from day program on April 28th. She says that she did not change any of the
clients because she thought that she had to complete the incident report about the client who had had
the helmet and wrist restraints applied right away. In response to a question at the hearing as to
whether she had been asked to change diapers that day, GL replied that by the time she had finished
the report, all of the clients had been changed.
89. In the first investigation, GL told her interviewers that on April 28th, she wanted to watch the
grievor change the clients’ diapers, but she (the grievor) changed all 5 clients alone. GL did not
mention the incident report. In her April 30th email, she says that she “wanted to see how staff
performed with this first” and then goes on to say that she “might be a bit reluctant to do the changing
diapers on my last shift but it did not mean that I did not do my job during my shift” before saying
that her first priority is safety for the clients and for herself and that she wants to be efficient but does
not feel confident. Again, GL did not mention the incident report. SD says that when GL told him
about April 28th, GL said that before she and the grievor were going to “do the hygiene” she asked the
grievor how to do it, and the grievor said “I’ll do it” and did it all by herself.
90. GL’s evidence about some of the other things that happened on April 15th is equally
troubling. CL says that she had to ask GL three times to go and observe the grievor before GL got up
and went down the hallway. CL described this during the second investigation and her recollection at
the hearing was clear. CL says that one of the reasons she recalls having to ask GL three times is
because it was very unusual for her to have to do that, as most new staff are very eager to learn and to
observe the client care routine. CL also says that she took GL on a quick tour of Douglas on the
morning of April 15th. CL says that she is proud of the condition of the residence and the way it has
been decorated, so she always takes new staff on a tour.
91. GL says that she went down the hallway to observe the grievor on her own initiative, and she
denies that CL had to ask her three times to do so. GL also says that CL did not take her on a tour of
the residence, which is what she told Ms McMullen when she arrived, and that Ms McMullen took
her on the tour. CL has worked at Douglas for many years, and she has done many orientations. Her
experience with GL stood out because it was unusual. It is probable that she followed her usual
practice of taking new staff on a tour of the residence. It is also probable that she would remember
having to tell a new staff more than once to leave the dining room table and to go and observe the
morning routine. As between CL’s and GL’s recollection of these events, I find that it is more
probable that CL’s is accurate.
92. All of these inconsistencies taken together suggest that GL has a tendency to change her
description of certain events in order to cast herself in a more favorable light with the employer. This
in turn calls into question the reliability of GL’s recollection of the April 15th incident.
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93. Turning to the incident itself, GL says that R was lying on his back in the middle of the
hallway between his bedroom and the bathroom/tubroom. His head and shoulders were between the
bedroom and bathroom/tubroom doorways, and his feet were towards the back of the house, she says.
That is what the picture that was drawn with GL’s assistance and approval at the hearing shows. If
GL’s evidence at the hearing is her best recollection of the incident, her allegation is that the grievor
used her right arm to grab R’s right shoulder and drag him into the bathroom/tubroom. Among the
elements that should be considered when this allegation is assessed are R’s weight and his usual body
position. There are at least two possible scenarios. First, if R was on his back, the grievor could have
grabbed his right shoulder, but even then, could she have dragged him, head first, the distance
described? Second, if R was in his usual position, on his right hip and right arm, how could the
grievor have grabbed R’s right shoulder, which would have been under his body and bearing a lot of
of his weight?
94. CL and TD have many years of experience caring for R. They (and the grievor) say that R’s
left arm stays tucked close to his body. When he is on the floor, he lies on his right hip, and using his
right arm bent at the elbow, he is able to propel himself along the floor headfirst. CL says that she has
never seen R lying on his back in the manner depicted in GL’s drawing. First, R would have no
reason to be going to the back of the house. Second, just as a matter of observation based on the way
that R moves, it would be extremely difficult for him to move himself so that he is feet-first down the
hallway. He does not move himself feet-first, so he would either have been coming from the back of
the house or he would have turned himself around. Neither of these things are likely. CL, TD, and the
grievor all describe R as “heavy.” CL and TD say it takes two people to lift him using a “two-person
lift” technique. TD describes one occasion when she had to move R out of the hallway quickly
because the washing machine was overflowing. She grabbed his feet or ankles and pulled him feet-
first along the floor. She says that she use would do the same thing if she had to evacuate R quickly
from the building using the “blanket-drag” technique – feet first. She says that he is too heavy “on
top” to pull him headfirst.
95. All of this suggests that it is not likely that R was lying on his back in the middle of the
hallway between his bedroom and the bathroom/tubroom. It is even more unlikely that he was feet-
first down the hallway towards the back of the house. If he was anywhere in the hallway at that time,
R was probably on his right side, either resting on his right hip or using his right arm and elbow to
“scoot” along the floor headfirst from his bedroom to the bathroom/tubroom. If this was the case, it is
not likely that the grievor, who was 7 months pregnant at the time, could have bent down and grabbed
R’s right shoulder. Even if she had been able to do this (which is unlikely) she then would have had to
drag him by the heaviest side of his body (the upper part) for a considerable distance along the floor
into the bathroom/tubroom. It not likely that the grievor would have been able to do this, and it is less
likely that she would have been able to do this without causing R and/or herself distress or injury.
None of the witnesses who were in Douglas that morning heard anything unusual (aside from GL,
who described the “we don’t normally do this” comment allegedly made by the grievor, which could
be considered unusual) or saw any signs of injury or distress from R when he was brought to the
dining room for breakfast after he had his bath.
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96. These are not peripheral details. In my view, they go to the core of what the grievor is alleged
to have done. It is a materially different proposition to say that the grievor grabbed and dragged R by
his left shoulder as opposed to his right shoulder. Whether or not it is likely that R was on his back in
the middle of the hallway with his legs extended towards the back of the house goes to the heart of
the reliability of GL’s allegation. This is not a case where there is agreement or consistency with
respect to the basic elements of the alleged abuse.
97. There is no evidence that the employer gave sufficient consideration to these questions during
either of its investigations. Ms Chappell says that Ms McMullen told her that “it was certainly
possible” to drag R across the floor. But the real question for the purposes of this investigation is
whether or not it was probable that the grievor had done so in the manner described by GL. For all of
the reasons set out above, I conclude that the grievor would probably not have been physically able to
do so.
98. Ms Chappell says that SD was interviewed during the second investigation because the
grievor had raised the possibility that GL had fabricated the allegation in retaliation for the grievor
having reported GL’s poor performance on April 28th. If GL described the incident to SD on April
16th, then this casts serious doubt on the grievor’s theory, because the events of April 28th had not yet
happened. The fact that GL shared a description of the incident immediately after it occurred took
away any doubt that GL had fabricated the incident in retaliation for the grievor’s complaint about
GL, says Ms Chappell.
99. First, there are some serious questions about how SD dealt with GL’s disclosure of the
allegation to him. He says that he strongly encouraged GL to report the incident. He says that he told
GL that because dragging a client is not proper procedure and he was concerned about whether R
might have been injured. At the end of their conversation, SD knew that GL was not going to report
the incident because that is what she told him. He says that he believed GL, but that he did not report
it himself because he had not witnessed the incident first-hand and he did not have all of the details
(such as the names of the client and the grievor).
100. In my view, SD could have easily found those details. In any event, the employer’s policy
says that an employee “suspecting or witnessing an alleged abuse of a client will immediately inform
the area Supervisor.” If SD thought that GL was telling the truth, he must have suspected that there
had been abuse, or at least “alleged abuse.” He ought to have reported the incident immediately. If he
was concerned about acting unilaterally and against GL’s wishes, he could have given GL an
ultimatum: report it yourself within 24 hours and confirm to me that you have done so, or I will report
it myself. Instead, he waited until he saw GL again on April 29th, when he asked her if she had
reported the April 15th incident. She said that she had not, but that she planned to send an email that
day or the next reporting the incident and her other concerns about Douglas. Again, SD ought to have
reported the incident himself or somehow made sure that GL was going to report it herself.
101. It was not until several days later (and several weeks after the alleged incident) that SD says
that he asked a manager at Ongwanada if the incident had been reported. He says that he did this
sometime between May 1st and May 11th. This means that SD was prepared to wait until almost one
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month after the incident was alleged to have occurred before he took concrete steps to ensure that it
had been reported. By the time he did so, it had been reported, although whether this was on May 1st
or as late as May 11th, SD is not certain. In my view, SD showed poor judgement throughout this
entire matter. However, SD was candid about his failure to report the allegation when he first became
aware of it, and he was frank about the limited steps that he did take to follow-up to ensure that GL
eventually reported it. It is not reasonable to conclude that he was being any less truthful when he
described his April 16th conversation with GL. He also said during the hearing that he was simply
recounting what GL had told him, and noted that he had no independent information to confirm what
she was saying.
102. Second, it is not clear precisely what GL told SD on April 16th. Ms Chappell’s notes of her
interview with SD say “gentleman on the floor . . . individual was dragged to quicken the routine. . .
described the person, Kasaundra Forsythe.” At the hearing, SD says that Ms Chappell called him and
asked him to confirm that GL had told him on April 16th about the April 15th incident. SD says that
the incident was described as “R being dragged across the floor” and he told Ms Chappell that GL
had told him about this incident on April 16th. At the hearing, SD says that GL told him about “a
gentleman who wears a full jumpsuit (who had been) dragged on the floor to the bathroom to be
changed” or words to that effect, however given Ms Chappell’s notes and SD’s recollection of what
he was asked by her, it does not appear that this level of detail was solicited by or conveyed to Ms
Chappell during the interview.
103. SD also says that GL spoke a great deal about her lack of comfort with the routine,
particularly changing the residents’ diapers, in both their April 16th and April 29th conversations. With
reference to April 29th in particular, SD says that GL told him that she was not comfortable with
doing the clients’ hygiene and that she wanted to be guided through it and to have someone go though
it with her properly. It is reasonable to conclude that SD was aware of GL’s lack of familiarity and
comfort with changing diapers and performing the personal hygiene for severely disabled individuals.
GL may have been a seasoned worker in the field of providing counselling and support in the
developmental services sector, but it is reasonable to conclude that she was not familiar with the type
of care and support required by the residents of Douglas and that she was very uncomfortable
providing it. However, there is no evidence that the employer took this information into account as
part of the second investigation.
104. At the hearing, it became clear that there was a little more to the connection between GL and
SD than was revealed during the second investigation. SD had been working with GL at the other
developmental services agency for approximately 4 years, he says. At some point, SD told GL that he
would talk to people at Ongwanada about available positions if she ever wanted to apply for work
there. SD says that GL did not take him up on this offer, however after she applied to Ongwanada,
she told him that she had put him down as a reference. It is reasonable to conclude from this that SD
cared about how GL was doing at Ongwanada. He says that he was “checking in with her” and
“keeping tabs on her” when he asked her about her April 15th and April 28th work experiences. It is
reasonable to conclude that this contributed to why GL felt comfortable sharing her experiences with
him, including the April 15th incident involving the grievor. SD was more than just a co-worker to
GL, he was a trusted colleague. But there is no evidence to suggest that their relationship was
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anything more than that, nor is there any evidence to support the proposition that SD would fabricate
a story and say that GL had described the April 15th incident to him when she had not.
105. Many things cast doubt on the reliability of GL’s account of the events of April 15th. Some of
her recollections (the grievor’s smoke breaks, the grievor making and eating toast with jam, being
asked three times to follow the grievor to observe the routine, taking a tour with CL) have either
changed over time, or have been directly contradicted by others who were present, or both. GL’s
description of the manner in which she alleges the grievor dragged R has not been consistent and has
changed materially over time. The simple mechanics of it are very difficult to believe, and the grievor
would probably not have been physically able to do it. It is therefore not necessary to conclude that
GL fabricated the incident in retaliation for the grievor’s unfavorable report of GL’s allegedly poor
performance on April 28th in order to find that GL’s description of the incident is not supported by the
preponderance of the evidence. She may have described something to SD, but if her description was
not reliable to begin with, then is it not material that she passed it on to SD the day after it was alleged
to have happened. As a result, it is not necessary to consider GL’s motivation.
106. The employer’s policy on the Alleged Abuse of Ongwanada Clients states that it is the
organization’s intent to have incidents reported immediately and reviewed promptly. An employee
who suspects that a client has been abused is to inform his or her area Supervisor immediately. The
employee is to provide the Supervisor with a written report (a Witness Statement Report) as soon as
possible. The immediate reporting of alleged abuse is important for many reasons. It allows the
alleged victim to receive medical attention and/or counselling, if necessary. Families can be notified
and the appropriate resources deployed. An alleged victim can also be examined for signs of abuse or
other evidence. It also allows the employer to begin its investigation right away. Evidence can be
secured and witnesses can be interviewed before memories fade. Obtaining a written statement of
allegations is important because it sets out the details while they are still fresh in the mind of the
employee. It assists the employer in developing its road map in terms of lists of possible witnesses,
what details should be confirmed or investigated further, etc. It can also help guard against spurious
complaints, because an employee is asked to commit, in writing, to a version of events that he or she
says is true.
107. Requiring an employee to immediately inform his or her Supervisor of alleged abuse in all
cases also allows the employer to quickly take on the role of determining whether or not there is
sufficient evidence to support the allegation. That decision is taken out of the employee’s hands. The
employee is not asked to weigh the seriousness of the alleged incident or to decide on the
consequences. As Ms Chappell says, the decision of whether or not something constitutes abuse is a
determination that is made at the end of the investigation. Until that point, it is an allegation, nothing
more.
108. GL did not report the alleged abuse immediately and she never submitted a written statement.
As a result, if she suspected abuse, her decision to not report it immediately would have deprived R of
the opportunity to receive treatment or care for possible injuries or trauma, if any, that he may have
experienced. The employer was deprived of the opportunity to conduct a prompt and thorough
investigation.
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109. Instead, GL took matters into her own hands. According to her own evidence, when SD
strongly advised her to report the incident, she decided to wait until her next shift (which turned out to
be two weeks later) to see if she should still be concerned about the care that R was receiving from
the grievor. When she sat down at her computer on April 30th and composed the email that set out her
version of events on April 28th, she deleted her description of the April 15th incident and decided that
she would wait and see how Ms McMullen reacted to her reports about changing the clients and
driving the van. This shows very poor judgement.
Disposition of the First Grievance
110. After the second investigation, the employer believed that it had clear and cogent evidence
that the grievor had abused R on April 15th. GL's account may have seemed credible at first. She told
the employer that she had a clear recollection of the incident. She described the grievor dragging R
from the hallway to the bathroom/tubroom. She did not appear to have had any reason to invent the
allegation when she disclosed it to SD, which from the employer’s perspective, was important.
111. But there is other evidence that is equally clear and cogent. If the investigators had been more
fully aware of R’s characteristics and abilities, and if GL’s account had been probed more thoroughly
and carefully, then the employer would have likely uncovered evidence which shows that the grievor
would probably not have been physically able to have dragged R as GL had alleged. There was the
also the grievor’s denial. If a more detailed account of the allegation had been put to her, it is likely
that the grievor would have been able to explain that it would not have been possible for her to have
done it. Her denial might have carried more weight with the employer than it did. Instead, this
evidence did not emerge until the hearing.
112. There are also many other things that undermine the reliability of GL's account of the
incident. Her description of the incident itself, such as whether the grievor grabbed R by his right or
left shoulder is inconsistent. Her description of R does not fit with where R is likely to have been in
the hallway and how R usually lies and moves on the floor. Her account of other things that happened
in the morning of April 15th, such as having to be asked repeatedly to observe the grievor, CL taking
her on a tour, and the grievor taking several smoke brakes and eating toast, is not supported by the
evidence of any of the other staff who were present. It is not probable that GL’s recollections of these
things is accurate, and this casts serious doubt on the reliability of her allegation that the grievor
dragged R from the hallway to the bathroom/tubroom.
113. GL also gave differing accounts of what happened on April 28th. A comparison of her
evidence at the hearing with her accounts during the investigations and her April 30th email shows
some significant inconsistencies as well as a tendency to shape her recollections to deflect blame
away from herself and to place herself in a more favorable light with the employer. This tends to
undermine confidence in the reliability of her allegation.
114. At the end of the day, I find that there is insufficient clear and cogent evidence to show that
on a balance of probabilities, the grievor abused R on April 15th. As a result, the first grievance is
upheld and the termination is rescinded. I understand that the grievor is currently on pregnancy and
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parental leave as a result of the birth of her daughter in June 2015. If the grievor was able to work her
regularly scheduled shifts between the date of her termination and the birth of her daughter, she
should be made whole. If her pregnancy and parental leave began soon after the termination of her
employment, compensation for lost hours of work may not be payable. Nevertheless, I remain seized
in the event that the parties are unable to resolve any issues regarding remedy.
Disposition of the Second Grievance
115. As soon as Ms Marshall-Delonghi was aware of the allegation, the investigation process
started. The grievor was interviewed just a few days later. Although the first investigation was
flawed, the employer did not draw any conclusions from it and instead decided to begin a second
investigation. Overall, the information gathered during the second investigation was sufficient to
allow the grievor to respond properly to the allegation. The grievor knew that she was alleged to have
dragged R from the hallway to the bathroom/tubroom in the morning of April 15th. She responded
with a denial. Although the grievor was not informed of the precise manner in which she was alleged
to have grabbed and dragged R, this is because the employer did not solicit this information from GL.
The employer was not hiding information from the grievor, nor was it being deliberately vague. The
allegation, such as it was communicated to the employer, was put to the grievor.
116. Article 32.01 of the Collective Agreement provides that the employee be informed as soon as
possible of the allegation. There is no evidence that the employer sat on the allegation or delayed the
communication of it to the grievor. The employer responded to the report of the allegation and the
grievor was informed as soon as possible. As a result, there is no violation of this provision of the
Collective Agreement. The second grievance is therefore dismissed.
Signed at Ottawa, Ontario on November 17th, 2015
Andrew Tremayne