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HomeMy WebLinkAbout1988-0263.Pearson.89-06-08 'r ONTARIO EMPLOYES DE CA COURONNE CROWN EMPLOYEES DE L'ONTAR/O GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE 2100 TELEPt~ONE/T~L~PHONE 180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8- BUREAU2100 (416) 598-0~8 263/88 IN THE MATTER OF AR ARBITRATION ~nder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (William Pearson) Grievor - and-- The Crown in Right of Ontario (Ministry of Commuity & Social Services) Employer Before: N,V. Dissanayake Vice-Chairperson. I. Thomson Member G. Milley Member For the Grievor: N. Roland Counsel Cornish & Associates Barristes & Solicitors For the Employer: S. Patterson Counsel Legal Services Branch Ministry of Community & Social Services Hearings: May 3, 9, 1989 2 AWARD The grievor William Pearson claims that he was discharged without cause from the Oxford Regional Centre ("ORC") located at Woodstock, Ontario. The ORC is operated by the Ministry of Community and Social Services with a staff of close to 800, and is'equipped to provide care and treatment for up to 440 developmentally handicapped residents. The grievor has been employed by the ORC for approximately 18 years. For 15 years preceding his discharge he has been providing direct care to ORC residents in the capacity of Residential Counsellor II.The incident giving rise to the grievor's discharge occurred on February 12, 1988, while he was working in the High Park Unit of the facility, the allegation being that he physically abused a resident, who we will identify as K. For a number of reasons, the staff at ORC did not want K coming into the staff coffee room. He is non-verbal and had a reputation as being an extremely dirty person with a habit of deliberately soiling his clothing with urine and faeces. He also had a practice of rushing into the staff coffee room and eating cigarette butts from ashtrays. On the day in question the grievor was in the coffee room shortly before the commencement of the 7:00 p.m. shift. Ms. Wanda Glenn, a fellow residential Counsellor II, was in the 3 coffee room reading a book. Ms. Glenn testified that she heard the grievor shout out which caused her to look. up from her reading. She observed the grievor and K standing nearby. She then saw the grievor hit K across his back. and push him towards the door. She testified that a short time later the grievor told her that he was "so sorry for what happened". Ms. Betty Andich has been employed at the ORC for some 20 years and at the relevant time was a supervisor at the High Park Unit. She was not scheduled to work on February 12, 1988, but came in to attend to Lsome business. Shortly before 7:00 p.m. she came down. the hall and arrived at the staff coffee room door. She testified that as she arrived she observed the grievor slap K across his right cheek and then gently shove K. She told the grievor that he should not have done that and asked if K had been aggressive. He stated that K had not been aggressive, that it was something he did "on the spur of the moment without thinking" and that he should not have done it. ~e apologized for what he did. Ms. Andich and Ms. Glenn discussed what each other had observed an~ decided that they should report the incident. Ms. Andich first attended to the business she had come for before reporting the incident to Mr. Gerry Deyo, her supervisor, who in turn reported the matter to Mr. John Hewitt, the Administrator. Mr. Hewitt testified that the ORC has had bad publicity about resident abuse in recent times. Certain lobby groups were critical of the ORC for incidents of resident abuse and politicians had also got involved. When he was notified about the allegations, by letter dated February 15, 1988, he suspended the grievor with pay pending investigation and obtained written statements from Ms. Glenn and Ms. Andich. Copies of the statements filed in evidence substantially confirm the witness' viva voce testimony. Mr. Hewitt also directed "the Standing Committee to Investigate Critical Incidents" tO investigate and report on the allegations. The Committee interviewed Ms.. Glenn, Ms. Andich, Mr. Deyo and the grievor. During his interview the grievor admitted that he had struck K twice as claimed by the witnesses, but maintained that it happened accidentally when he was spooked by someone shouting while he had a sweater over his head in the process of removing it. The Committee issued its report on February 16, 1988. The following conclusions and recommendations were made in the Report: CONCLUSIONS: t. As a result of the reports submitted and the interviews conducted, the Committee believes the incident occurred as described by staff members Betty Andich and Wanda Glenn. Mr. Pearson's account of the incident, during his interview does not concur with his statements to witnesses Betty Andich and Wanda 5 Glenn, and to afternoon Supervisor, Gerry Deyo. 3. While the actions of Ross Pearson towards resident, (n~me deleted) can be cQncluded to have been "spur of the moment", the actions by Mr. Pearson were not as accidental and ~t as described by him during his interview. It was also concluded that (name deleted) was shoved out of the room by Mr. Pearson and did not go out on his own, as related by Mr. Pearson during his interview. 4. The actions of Mr. Pearson towards resident (name deleted) were impulsive, but an overreaction to (name deleted) presence in the room. 5. The Committee feels that this was an isolated incident by Mr. Pearson towards a resident, however, he did on this occasion strike resident (name deleted) twice - once on the back and once on the cheek~' 6. Although he did not state it in his interview, it is evident that Mr. Pearson is genuinely sorry for the incident; it was not ~r~meditated and was completely out of character for him. RECOMMENDATIONS-: 1. Results of the interviews indicate that disciplinary action should take place. 2. When. staff members are in a ward coffee room, the "half door" should be closed and locked, thereby preventing residents from entering the room. Upon receipt of the Committee's report, Mr. Hewitt scheduled a pre-disciplinary meeting for March 3, 1988, to be chaired by Mr. W. Fenlon, Assistant Administrator. Also in 6 attendance were Mrs. Dianne Manship, representing the Human Resources Department, Ms. Nadine Edmondson, Unit Director of the Park Place Unit, the Hrievor, and a Trade Union representative. The minutes of the meeting were filed in evidence. This describes Ms. Edmondson as the "ManaHement's representative". The Minutes indicate that after reviewing the evidence, Ms. Edmondson "felt that Mr. Pearson was in. direct violation of the Ministry's Standards of Conduct" Then the minutes Ho on to state as follows: She~then reviewed Mr. Pearson's employment history. It was pointed out that Mr. Pearson has been employed by Oxford ReHional Centre since May 12, 1969, having always worked in a direct care capacity. Throughout his employment, his record has been clear of any disciplinary action. His performance appraisals, she noted, have been positive, especially in regard to his interaction with the residents. Ms. Edmondson concluded that Mr. Pearson's actions appear to have been an isolated incident directed toward a trying individual. Notwithstanding, she stated that Mr. Pearson's actions appear to have been unprovoked and occurred prior to commencement of his shift. Therefore, the lack of provocation and the excessive use of force, impel her to recommend strict disciplinary action. At this ~ meeting the grievor simply stood by the explanation he had earlier given that he struck K accidentally while removing a sweater. Mr. Hewitt testified that he then reviewed all of the evidence, including the employee statements, the Committee 7 Report and the minutes of the pre-disciplinary meeting and came to the conclusion that the grievor must be discharged. He issued a letter of discharge dated April 8, 1988. The Board observes that in addition to a statement that the grievor "violated the Ministry's Standards of Conduct and Disciplinary Guidelines with respect to resident abuse", the letter of discharge also refers to incidents of horseplay and sexual harassment. These incidents occurred about a week prior to the alleged abuse incident. The grievor was issued verbal warnings on February ~2, 1988, after the incident involving resident K. Mr. Hewitt made it clear during his testimony that he merely "threw in" those two incidents and that the grievor's dismissal was based solely on the incident on February 12 involving K. During his testimony the grievor admitted that he had fabricated the "sweater story". However, he continued to maintain that the striking of K was accidental. He explained that he was scared by the way management "over-reacted" to what he thought was a minor incident. He felt that by adding the "sweater story" he would be able to demonstrate more objectively that the striking was in fact accidental. At the hearing, his position was that the accidental striking (twice) occurred while he was attempting to grab K's ~l~oulder in order to escort him out of the coffee room. We do not accept the grievor's claim that the striking was accidental. Firstly, it is physically improbable that the grievor could have struck K once on the cheek and once more in the back in the manner described by eye-witnesses, while trying to grab K's shoulder. The eye-witnesses were both extremely credible witnesses who did not show any desire to exaggerate. They both opined that the grievor's actions were not premeditated or malicious. Both agreed that this was an isolated incident and that the grievor's intentions were good, namely, to prevent K from grabbing and eating cigarette butts. At the same time they had no doubts that what they observed · were not accidental blows. Their evidence confirmed the written statements they had prepared within a couple of hours of the incident. Furthermore, the evidence is that immediately after the incident, the grievor apologized and stated that he did it "on the spur of the moment without thinking" The grievor admitted that he had made such a statement. That statement, in the Board's view, is inconsistent with the grievor's claim that the blows were accidental. On the basis of all of the evidence, the Board has no hesitation in concluding, as the committee did, that the grievor's actions were not accidental, but constituted an impulsive response. His actions were not malicious and was totally out of character. The blows were not vicious. There was no intent to injure K, and indeed no injury resulted. 9 Nevertheless, the conclusion is inescapable that as a result of a momentary and uncharacteristic loss of control, the Grievor did use inappropriate force upon K and that such conduct falls within the definition of "abuse" in the Ministry's Standards of Conduct and Disciplinary Guidelines. Accordingly, the Employer was justified in disciplining the Grievor. The issue is whether the ultimate penalty of discharge was appropriate in the circumstances. Mr. Hewitt, who made the decision to discharge, testified that he balanced the grievor's conduct on February 12 with his unblemished work-history of over 18 years. He concluded that the incident was "not isolated but a sustained, unprovoked and unwarranted use of force". When Union counsel pointed out in cross-examination that Ms. Edmondston, the unit head who was involved in the investigation, had concluded that the grievor has had positive interaction with residents in the past and that this incident was an isolated occurrence, Mr. Hewitt's response simply was that in his mind "the past history did not weigh strongly enough". Similarly, when counsel pointed out that the Grievor's past performance appraisals indicate that the grievor has had positive relations with residents and that suggested that the gri=vor would not strike a patient in the future, Mr. Hewitt's response was that, "it does not demonstrate that conclusively enough". When counsel pointed to the opinions of Ms. Glenn, Ms. Endich, the committee and 10 Ms. Edmondston, who all felt that the grievor's conduct was not malicious and was out of character, Mr. Hewitt responded "whatever anybody else may think I stand by my decision" Counsel for the Employer submits that Mr. Hewitt weighed the seriousness of the grievor's conduct of February 12 on the one hand, and all of the mitigatory factors including his good work record on the other, before making the decision to discharge. Relying on two arbitration awards from British Columbia, Re Juan de Fuca Hosmital Society, (1.988) 35 L.A.C. (3d) 289 (Dorsey) and Re Government of the Province of British Columbia, (1980) 26 L.A.C. (2d) 71 (Public Service Adjudication Board), he' submits that the Board-should not intervene with the Employer's decision. Counsel for the grievor submits that the evidence establishes that what occurred was accidental and therefore no discipline is warranted. In the alternative, he submits that the alleged incident was so minor, and the mitigatory circumstances so substantial, that no more than a period of suspensicn was justified. This Board has had substantial experience in dealing with situations of patient/residence abuse and has established certain principles, which we find very persuasive. The decision in Re Samuel Johnston, 7/78 (Adams) has many factual similarities with this case. The grievor there had 5 years 11 service as a Residential Counsellor and had no prior record of resident abuse. He was found to have kicked a female patient causing her eye to swell and discolour. It is useful to review the follgwing observations of the Board: While a concern for the welfare of the patient is of the utmost importance in cases of this kind, sight must. not be lost of the fact that this Ministry is also an employer and its employees have a right to be dismissed for ~ust and sufficient cause and no less. The result is that the employer and the Board are obligated to consider and accommodate the interests of employees where this can be done without impairment of the crucial interests of the patient. This also means that the mere recitation of "the patient's interests" is, in itself, an insufficient justification for the termination of an employee. If an employer is of the opinion that the patient's interests can only be accommodated by an employee's dismissal, the employer is obligated to establish this fact by direct evidence and Ms. Lovering.'s testimony was quite inadequate if this was its purpose. To fair to the witness, she had no knowledge of the circumstances surrounding this case; the severity of the injury; or of the motive of the grievor in. committing the act that he did. Thus she was required to speak in a very general way, but with the result that her opinion took on the same form as Directive 17 - an unsubstantiated predisposition toward a specific kind of disciplinary response. Why must the situation be "black and white"? Why can't the employee ever be trusted again? Doesn't this latter conclusion depend on the circumstances surrounding any incident of patient abuse? Surely an unprovoked assault with intent to maim is a very different situation fr6m an isolated altercation initiated by a patient or from even the facts at hand. That each of these fact situations must be dealt with in the same way because of the "interests of the patients" is not self evident. 'Ms. Lovering knew none of the details pertainin~ to this case; she did not have any knowledge of patient X and of that patient's reaction to the incident; and she had very little to say about the incidence of patient abuse generally and its impact on therapeutic setting. In short then, we did not find 12 her testimony very helpful in responding to the difficult problem confronting this Board. Illustrative of ~this point ~as her statement that while she was not prepared to risk the interests of the patients by continuing to employ someone like the Grievor, although if this Board was prepared to assume such responsibility, this was up to it. With all due respect, this Board and the employer have obligations to both employees and patients and a genuine effort must be made t~ accommodate bctk interests. Only when this can't reasonably be done must the employee's interest give way. Surely, at the very least, the employer is obligated to assess the extent of risk associated' with an employee's continued employment and, in appropriate circumstances, to consider the viability of alternative placements on a permanent or probationary basis as well as other intermediate punitive measures. It is not a matter of one General interest eclipsing another no matter what the situation. Rather it is the delicate and painstaking analysis of what is the most appropriate result having regard to the particular situation at issue. Mr. Hewitt did in fact testify that he weighed the institution's and the resident's interest on one hand, and the grievor's rights on the other. However, merely stating that he did so cannot satisfy the Board's concerns. If Mr. Hewitt did engage in the balancing of interests requirid, his conclusions are totally incompatible with the preponderance of evidence. His conclusions that the grievcr's actions were not isolated but sustained, that he showed no re~ret, and that there is no indication that he will not repeat this type cf conduct in the future are not supportable by the information that was before him at the time. In concluding that the 13 grievor will not be a danger tO patients in the future, the Board in Johnstone observed: In the facts at hand the following considerations respond to our concern for the future welfare of the patients. The grievor has never engaged in patient abuse in the past an~ thus there is no evidence suggesting a tendency or pattern in this direction. It was an isolated event in his employment history and likely to remain one. ~e find support for this conclusion in the very nature of the incident. We are satisfied that the grievcr did not intend to hurt the patient and that it was a case of "horseplay" Thus, stupid and senseless as most "horseplay" is, we are not confronted with an unprovoked assault on a patient with the intent to injure. If the grievor had intended to injure the patient it is extremely unlikely he would have attempted it in the full view of his fellow employees. Indeed, even the grievor's fellow employers did not see the incident as an intentional act aimed at hurting the patient because Mr. Pink returned her to the custody of the grievor minutes after the situation arose and left her albne with him. As well there was evidence that the patient herself was not frightened at the prospect of being left alone with the grievor and that they subsequently watched television together. Most of the above comments are equally applicable here. In that case the Employer relied on an expert's opinion that when dealing with patient abuse the situation is "black and white". That is, no matter what the nature of the abuse is~ the only appropriate penalty is discharge. The Board disapproved of this "black and white" approach in dealing with patient abuse in a regime where discipline must be for just cause. Contrary to what he would have us believe, it is apparent to us that Mr. Hewitt also engaged in a "black.and white" approach towards the grievor's conduct. This is evident not only from the nature of the decisions he made, but also from his demeanour on the stand. Once he was satisfied that the grievor intentionally struck K, nothing else mattered for him. The grievor had to be discharged. The only difference here is that Mr. Hewitt was not following anyone's advice, but on the 6ontrary was ignoring the advice and opinion of a number of people when he decided that the grievor ccu!d not be trusted in the future. We find, as the Board did in Johnstone, that the black and white approach is not appropriate where the Emp!oy=~ ~= bound by a just cause clause. A just cause clause requires that the penalty must be commensurate with the part±cui~r circumstances of the misconduct. In this regard we note that the Standards of Conduct and Disciplinary Guidelines cf the Ministry set out a number of types of "unacceDtab!e conduct" with corresponding disciplinary guidelines. OnE type ~f unacceptable conduct set cut.is "abuse to trainee~ resident or ward". The definition of "abuse" set out therein ±nc!udes "The unwarranted and/or inappropriate use of physical force" The disciplinary Guideline for a first infraction of abuse is stated to be "written reprimand and up tc one month's 15 suspension or dismissal dependent on'seriousness of offence". The penalty for a second infraction is "dismissal" From that document it is apparent that the Ministry's own standards contemplate a range of penalties for a first infraction of abuse (as was the case here), depending on the particular circumstances. In assessing what is an appropriate penalty for the grievor's conduct, on the negative side of tke ledger we find that abuse of a patient, whatever the circumstances, is a serious offence. Also, the grievor fabricated a story ~bout removing a sweater and stood by that story ~ght up to ~e hearing, on the first day of hearing, counsel cross-examined the EmDlo~er witnesses about the possibility that the grievor may have been removing a sweater at the t±m~ he struck This suggests that the grievor decided to abandon the sweater story between the f~rst and second days of hesrin~ after it became apparent that the Board is unlikely to believe it. Even then, he continued to insist that the blows were accident~l, an assertion we have found to be untrue. His refusal to admit that he struck K in a momentary loss of temper reduces the credit he would otherwise have r~ceived for the remorse he had shown immediately after the incident, which the witnesses agreed were sincere. 16 On the positive side of the ledger, we find tkat the Grievor has 18 years of service; at the time of the incident he had not received any discipline at all. As cf the time of his discharge, he only had two verbal warninGsr and those had nothing to do with his interaction with residents. Tke incident involving K was the first time in his 18 years cf employment in providing direct care to residents that Employer had received a complaint about his treatment cf residents. His use of force on K was not premeditated cr malicious. He had no intention to injure tke resident, but acted out of concern about the potential health hazard if the resident ate cigarette buttS. The use of force was ~c!ative!y minor and the resident did not suffer any injury. He immediately made an apology which the witnesses felt was sincere, although he later fabricated an exp!anaticn wken faced with serious disciplinary action. He is marrled two young children and since his discharge has suffered considerable financial hardship Ba!ancin~ all ~f ~ negative and positive factors, the Board is of the vie~7 that discharge is ~disproportionate to the offence commftted. ~ecoGnizinG the gravity of resident abuse, while at the same time giving weight to all of the mitigatory factor~, a r2cre appropriate penalty is a lengthy suspension. In all of the circumstances, we direct that the grievor be reinstated 'in employment, but without compensation and r without accrual of seniority for the period of absence will be recorded as a period of suspension without pay. penalty is of substantial deterrent effect. Considering this deterrent effect and all of the indications that tko grievor's conduct on February 12, 1988, was totally out cf character, in our view it is extremely unlikely that the grievor would engage in similar inappropriate conduct in the future. Therefore, if we had the authority to do so,we would have had no hesitation in d~recting that the grievor be t~e reinstated as Residential Counsellor II, subject to suspension we have imposed. However, the legislature in its wisdom has stipulated in section 19(4) (a) of the Crc%Tn Employees Collective Barqaininc Act as fol!o~s: 19 (4) Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facility, (a) has applied force to a resident in the facility, except the minimum force necessary for self-defence or the defence of another per~on or necessary to restrain the reside the Grievance Settlement Board shall not provide for the employment of the emp!cyee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the employee in another substantially equivalent position. The use of force exerted by the grievor on K clearly comes within section !9(4) (a). That provision does not permit any discretion on the Board to consider any mit±g~tcry factors~ Tkerefore the Board is bound by the restrict±ch placed by section 19(4) (a) on its remedial powers. Accordingly, the Board's direction is that the griever be reinstated in another substantially equivalent position not involving direct responsibility for cr contact witk residents in the facility. The Board remains seized in the event that the ~s~ties encounter difficu!ty in implementing this awar~. Dated this 8~:.h~ day of J~e, 1989 at Hamilton, Ontario Nima! V. hiss ..... ~-~ Vice-Chairperson Member G. Mil!ey F:ember