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HomeMy WebLinkAbout1988-1329.Atkinson.89-09-06 ONTARIO EMPLOYES DE LA COIJRONNE CROWN EM~'C O~EES O~ ~'ONT~ GRIEYANCE C,OffiMISSlON DE. SETTLEMENT REGLEMENT BOARD DES GRIEFS ~0 DUNDAS STREET wEST, TORONTO, ONTARIO. MBO 'IZ8- SUITE2100 TELEPHONE/TE~./~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MBG 1Z8 - BUREAU2100 ~415) 598-0688 1329/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (L. Atkin~n) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: N.Y. Dissanayake Vice-Chairperson P. Klym Member W. Lobraico Member For the Grievor: C. Paliare Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: M. Gottesman Counsel Legal Services Branch Ministry of Community & Social Services Hearings: May 10, 1989 July 14, 1989 AWARD The grievor, Ms. Linda Atkinson grieves a letter of reprimand issued to her by the Employer. The discipline in question followed allegations from two employees that Ms. Atkinson had kicked % resident under her care. The grievor has been employed at the Muskoka Centre, in Gravenhurst, Ontario since July 1987, as a Residential Counsellor. Caledonia Centre is affiliated with the Muskoka Centre, a facility operated by the Employer for developmentally handicapped adults. Caledonia Centre is a workshop, where some of the residents of Muskoka Centre are trained in job skills and provided gainful employment. The incident in question occurred on October 14, 1988, at the Caledonia Centre. J.W. a non-vocal, develop- mentally handicapped resident was assigned to the care of Ms. J.W. is noted to be a. difficult individual. While Atkinson she was no ~hreat to the staff, she was stubborn. She had a habit of sitting down or clinging on to objects and refusing to move. On the day in question, j.w. was to be working at her workstation, but soon after arriving at the Caledonia Centre, sat down on the floor and refused to move. The evidence is that Ms. Atkinson, put her feet on J.W.'s toes and tried to pull her up, but she would ,not move. Shortly thereafter, J.W. attempted, while still seated on the floor, to push herself backwards towards the adjoining shipping and receiving area. It is agreed that it would have been dangerous for J.W. and the door leading to the shipping area. The allegation is that at this point, Ms. Atkinson kicked J.W. on her back a ~umber of times to make'her move forward towards her work station. Ms. Atkinson vehemently denies that she kicked the resident. From the first time she was confronted with the allegations, her position was that she stood behind J.W. and shuffled her feet to make J.W. move forward. The complaint was made by Ms. Sherri Eidsness, a residential counsellor. Her complaint was supported by another residential counsellor, Ms. Jackie ForsYthe. These two staff members made the complaint not only with respect to the alleged kicking, but also about the manner in which Ms. Atkinson attempted to pull J.W. to a standing position. Ms. Lorna Parker, the Assistant Administrator of Developmental Services, was for most part instrumental in the decision to discipline the grievor. Ms. Parker was very clear that the sole reason for the discipline was the alleged kicking. She testified specifically that the alleged stepping on J.W.'s feet and pulling her up had no part in the decision to discipline Ms. Atkinson. She testified that 'after she 'had completed her investigation (during the course of which she interviewed the two complainants, the grievor and her supervisors) she was not quite sure of what had occurred. She testified that she had no reason to believe that the complainants were making up the allegation, but was "wondering whether what had occurred earlier in the day had influenced their perception." This reference to an earlier incident'relates to the manner in which J.W. was brought in to the Caledonia Centre that morning. The evidence is that two male. staff had carried J.w. from the bus to the Workshop with J.W.'s legs dragging along the floor, causing her to lose both shoes and a sock. Ms. Eidsness and Ms, Forsythe had Witnessed this and were quite upset about it. Ms. Parker concluded in the end that Ms. Atkinson must have-kicked J.W. because they were both stating consistent stories and they had noreason to lie about Ms. A~kinson. Ms. Parker also considered Ms. Atkinson's past record and the nature of the alleged kick and concluded that the physical force exerted was minimal and without intent to injure. Also, a medical examination soon afte~ the alleged kicking disclosed no bruising whatsoever on J.w. In the circumstances, Ms. Parker concluded that Ms. Atkinson's conduct did not amount to "abuse", but constituted a lesser offence of "Use of inappropriate force". Considering all of the information in her possession, she decided that a letter of reprimand which will stay on record for two years is appropriate. Ms. Eidsness testified that when the alleged kicks occurred she was standing behind Ms. Atkinson and therefore had a clear view of the kicking. She also was certain that Ms. Atkinson was not shuffling her feet. According to her, MS. Atkinson lifted her foot and swung her foot back, "but not all the way back", as she kicked J.W. However, Ms. Parker testified that when she spoke to Ms. Eidsness during her investigation, Ms. Eidsness told her that she observed the kicking from a position "in front of and to the side of" where Ms. Atkinson and J.W. were. Furthermore, contrary to her testimony before the 8card, when Ms. Parker inquired, Ms. Eidsness specifically told her that she did not see Ms. Atkinson's foot make contact with J.W. when she demonstrated Ms. Atkinson's foot action to Ms. Parker, there was no ~ack swing of the foot at all. In her testimony she said that Ms. Atkinson pulled her leg back, but not ali the way back. ~s. Forsythe's version of ~he evidence is consistent with the statement Ms. Eidsness first made to Ms. Parker, that she was towards the front of J.W. and Ms. At~inson at the time of the incident. Ms. Forsythe testified that from where she stood, she could hardly see J.W. who was sitting on the floor, and could not see Ms. Atkinson's feet because a desk obscured her view. She testified that she did not see Ms. Atkinson's foot make contact with J.W., but assumed from her movements that she was kicking. MS. Parker testified that as a result of her inquiries she was aware that Ms. Atkinson was regarded by her supervisors as ~an excellent employee and particularly that she enjoyed working with residents. Ms. Atkinson's performance appraisals amply bear this out. These appraisals which were filed in evidence, contain very complementary comments about Ms. Atkinson's inter-action with residents. In the relatively short period of her employment, Ms. Atkinson has never received any discipline and had not given any indication of hostility towards residents. In a case such as this, the Employer has the onus of establishing just cause on a balance of probabilities by adducing clear an cogent evidence. Therefore~ the sole issue is whether the Employer has established by'clear and cogent evidence to satisfy the Board on a balance of probabilities that on October 14, 1988, Ms. Atkinson kicked J.W. Having carefully reviewed the evidence, the Board finds that just cause has not been established. There were a number of inconsistencies in the Employer's evidence. There were inconsistencies in the evidence between Ms. Eidsness and Ms. Forsythe, as well as inconsistencies in the story stated at different times by each witness. We have not reviewed all of these here, because quite apart from those, the alleged kicking has not been established. Ms. Forsythe did not see any kicks at all but from Ms. Atkinson's movements assumed that she must have kicked. While at the hearing Ms. Eidsness testified that she saw Ms. Atkinson kick, that is totally inconsistent with her prior statement to Ms. Parker that she did not see Ms. Atkinson's foot strike J.W. We are satisfied that neither employee actually saw contact between Ms. Atkinson's foot and J.W. At the end of her investigation, Ms. Parker was suspicious that the perception of the incident by Ms. Eidsness and Ms. Forsythe may have been influenced by their observation earlier that morning of J.W. being handled inappropriately by two male staff. It appears to the Board that her suspicions were correct. ~s. Atkinson's explanation, that she only shuffled her feet behind J.W. to get her moving, was consistent throughout. Her demonstrated attitude towards resident~ in her care is completely inconsistent with the alleged conduct. In all of the circumstances we are satisfied that, MS. Atkinson's version of the story is the correct one. It is not difficult to imagine someone already disturbed by the manner j.w. had been treated, perceiving Ms. Atkinson's shuffling movements as "kicks". We cannot be satisfied on a balance of probabilities that Ms. Atkinson kicked J.W. as alleged. Eventhough the penalty imposed is not a serious one, there can be no discipline whatsoever in the absence of any culpable conduct. Since we find that the alleged culpability has not been established, this grievance is allowed. The Employer is directed to forthwith remove the letter of reprimand from the grievor's record and from all other files. Dated this 6th day of Sept., '1989 at Hamilton, Ontario. N. V. Dissanayake, Vice-Chairperson W. Lobraico, Member