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HomeMy WebLinkAbout1989-1250.Storey.91-07-03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DE L '0 N TA RIO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT . BOARD DES GRIEFS 180 OUNDAS STREET WEST, SUITE 21~0, TORONTO, ONTARIO, MSt. 1Z8 TE£EPHOt,IE/T~L~-PHONE. (~ ?6] .325- 1358 'i$0, RUE ~)UNDAS OUEST, BUREAU 2'100. TORONTO [ONTARIO). MSG 1Z$ FACSIMILE/TE~COPlE .. (4.1~i 32~'1296 1250/89 IN THE MATTER OF ~N ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARQAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Storey) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: T. Wilson .Vice-Chairperson G. Majesky Member D. Montrose Member FOR THE H. Law GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Ministry of Community & Social services HEARING February 15, 23, 1990 March 26, 1990 September 18, 1990 DECISION Judy Storey is a Residential Counsellor 2 with the Ministry of Communit7 and Social Services at the Edgar Adult Occupational Centre which is a residential school for thc dcxtnlnnmc, ntnllu hnndinnnnpri ~ .qhn filnd n hnnlth nnd nnfntv nri~vnnnn nn .qnntCmhpr 1, 1989 to the following effect: "I grieve that management is in violation of Article 18." The Settlement Desired is: "that Mr. Reynolds be re-certified/tested in Crisis lntervention/Interventive Techniques". Don Reynolds is the Manager, Residential Programming and Services. He is as such part of management and outside the bargaining unit? Article 18 provides as follows: 18.1 The Employer shall continue to make reasonable provisions for'the ~nfnh; ~nd hcnith nf itc. nmnlnunn~ d~rinn thc hnl~r~ nf thnir employment. It is agreed that both the Employer and the Union shall co-operate to the fultest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. This grievance arises out of an incident that occurred on July 28, 1989, at the Hillcrest residential area at the Edgar Occupational Centre. A large young male resident (inmate), G.F., was the subject matter of the incident. Because of his behaviour that morning, G.F. had been directed by Reynolds to remain in his residence, something known as being "grounded".3 G.F. sneaked out of his residence in violation of his "grounding". When he was located, he refused to do what he was asked to do or to calm down and then physical efforts at restraining him were initially unsuccessful. When Don ' Sometimes in testimony and in the documentation, they are referred to variously as residents, clients, trainees or inmates. : Mr. Reynolds was advised by the Chair that he was entitled to separate Third Party status and to be represented by his own Counsel, separate from that of the Ministry. He stated to the Board that he was content to have his interests represented by Ministry Counsel at the hearing. 3 Although the term seems to me to come from denying the family car to a teenage son, the potential fo? more serious consequences should be obvious when dealing with a full-grown adult. It is here more closely akin to the military concept of"confined to barracks". 3 Reynolds arrived on the scene, staff'were still trying :to calm G and get some control over his behaviour. At this point, the facts are seriously in dispute. The Grievor's claim is that Don Reynolds, when he arrived on the scene, inappropriately interrupted the on-going crisis intervention, interrupted the oral rapport which the staff had established with G and then made a kind of flying football style tackle of G.F., an action which the Union submits was unsafe and inconsistent with the accepted Crisis Intervention techniques. The Grievor claims that in the scuffle that resulted and into which she and her fellow staff members had to intervene, she suffered injury. The Ministry does not agree with this characterization of the events or that there was any safety violation. THE EVIDENCE The first witness for the Union was Paul Simcoe. He is a Resident Counsellor 2 at the Institution and has been there since 1978. He is also the Chief Stewart in Local 321. He is an instructor in the'lnstitute's Crisis Intervention course and in the Physical Restraints course. The Crisis Intervention course lasts two days. The Physical Restraints initial course lasts two full days as well and every staff member must attend. Every year, there are also two half day courses on physical restraints. Everyone who comes into contact with the clients (residents) must take crisis intervention. Even support staff such as cooks and cleaners are now being trained in these techniques. There are also practices of one hour in length required on physical restraints. The physical restraints program began back in 1977 and has been revised many times. Crisis Intervention courses were first put together in late 1985 and teaching began in 1986. This witness testified that he had no knowledge of either the physical restraints course or the Crisis Intervention course ever having been taken by Reynolds. Qualified instructors came in from' the St. Thomas Psychiatric Centre to train the instructors at Edgar for the physical restraints and the instructors were recertified by qualified consultants. The Crisis Intervention course was designed by a committee consisting of instructors from the physical restraints course, staff from the Psychology Department and the Staff development officer. An Administrative Directive (AO-0504-02) dated 04 Feb 1988 is given to all persons taking the physical restraints course. It is a policy statement, setting 4 out as follows: SUMMARY This directive and the corresponding procedures for the use of these approved intervention techiniques has been developed as an aid for staff in dealing with a trainee who displays aggressive and potentially harmful behaviour. POLICY The Personnel Manual, Standards of Conduct section 0505-02, STATEMENT Subsection 10- Orderly Conduct, states that the following constitutes unacceptable conduct: "Endangering well-being of any persons on Ministry premises; use of force in excess of approved methods resulting in injury or abuse to trainee, resident or ward; assault on employees, clients or visitors." In conjunction with this directive, A.O.C. will endorse the following crisis intervention techniques on the part of employees at A.O.C. when and ONLY when a display of aggressive behaviour on the part of a trainee may result in physical harm to an employee of the Centre, another trainee, a visitor to the Centre, to him/herself, or which may result in the destruction of property. These methods will be the only methods of intervention techniques in a crisis situation that are sanctioned by the administration of A.O.C. The Occupational Health and Safety Act Section 14(2) (a) and (g) states that: "Without limiting the strict duty imposed by Subsection (1), an employeer shall, (a) provide information, instruction and supervision to a worker to protect health or safety of the worker; (g) take every precaution reasonable in the circumstances for the protection of a worker." In order to compfy with this act, the centre: provides all employees with an initial training program in the prevention and management of disturbed behaviour; - provides opportunity during working hours to practice techniques; - provides qualified instructors for program; - provides system for evaluation skill competency of employees and providing retraining where necessary (see AO-0504-07). It is the policy of the Centre not to discriminate on the basis of sex in the matter of the application of Interventive Techniques in crisis situations. Supervisory staff .in all program areas situations. Supervisory staff in program areas are cautioned that they ought not to discriminate in favour of male staff regardless of the sex of the trainee who requires, to be restrained. The operative phrase is not whether male staff are available, but rather, is there a sufficient number of staff to apply the interventive technique successfully; meaning without undue risk or physical harm to staff or trainee. A further A.O.C. Directive AO-0504-04 dated 12 Feb 1988 was also adduced in evidence. It provides as follows: EMPLOYEES 1. Attend an ~nterventive Technique Training Program. UTILIZING INTERVENTIVE 2. Practice techniques for intervention on a monthly basis. TECHNIQUES 3. Utilize alt techniques of counselling to handle a crisis situation before utilizing the approved intervention techniques(s). 4. Use only intervention techniques approved by the administration of A.O.C. for handling disturbed behaviour. 5. Be aware that aft incidents involving intervention techniques will be subject to a review by the Program Advisory Committe, Limit Setting Committee, Management Advisory Committee, and tabled with the Employee/Employer Relations Committee for information purposes. 6. ' Be aware that any methods utilized other than the approved methods will be investigated independently by management depending on the situation. 7. Be aware that any techniques other than those approved by the administration of A.O.C. employed by staff in a crisis situation may result in dismissal as per Personnel Manual section 0505-02, subsection 10. 8. Staff will attend an annual review of Interventive Techniques in order to remain competent in the administration of techniques. INSTRUCTORS 1. Instruct staff in crisis intervention techniques -verbal, non-verbal, and physical techniques. 2. Attend a refresher course once a year (August) to upgrade techniques of instruction. 3. Instruct in only those methods of intervention approved by the administration of A.O.C. 4. Evaluate staff on the course, ensuring that they have knowledge of an understand these techniques, 5. Forward attendance records from practice sessions to Staff Development and appropriate managers on a monthly basis. MANAGEMENT 1. Review monthly Interventive Technique Reports. STAFF 1. Review techniques on a continuing basis. DEVELOPMENT 2. Schedule training courses and instructors for the prevention and management of disturbed behaviour. 3. Ensure that all instructors are reassessed in the interventive techniques, annually. 4. Monitor departmental practice sessions, continually, providing instruction and retraining where necessary. 5. Ensure all staff are reassessed in interventive techniques annually. 6. Ensure one-day practice session is scheduled for Support Service staff annually to review/practice interventive techniques. MANAGERS/ 1. Attend an Interventive Technique training session. SUPERVISORS 2. Establish and monitor monthly practice sessions for their staff to maintain skills taught at initial session. 3. Inform Staff Development of need for refresher sessions, where applicable. The witness explained that they fitl out a form (the interventive Technique 7 Competency form) marking the competency level of the people put through the course and indicating what they need to brush-up on. He explained that the expression non- verbal techniques referred to under paragraph 2 for instructors involves techniques such as body language, personal d. istance, knowing the site and being aware of the surroundings. Several verbal techniques are also taught: for example, 1. classical methods such as appropriate tone of voice, use of open ended sentences aimed at drawing the person out; 2. calming technique which by both verbal and non-verbal methods seeks to calm a resident who is slightly agitated but still coherent; 3. defusing techniques with more agitated residents "bumps up a level" but uses similar verbal skills; 4. ABC model which is used for example when the situation has been .going on for some time and is going in circles;then, a time Iimit may be imposed. This model is not used very often and there has to be real back-up to it. There is a whole section on the team approach. In this approach, there is a team leader who has a rapport with the resident or an objective. An individual approach is not used and in the case of the need for physical restraint, such an approach is impossible. This witness also introduced in evidence A.O.C Administrative Directive AO-0504- 03, subject Approved Methods of Intervention dated 21 Oct 1988. It is attached as Appendix "B" to this Decision. Turning to page 2 of that document, the witness explained that the Use of Restraints shown on the fist progresses from the least agressive to the most. All restraints require a minimum of two staff. With respect to "B One Person Techniques, these are referred to as one person escapes and the advise given is that they are only used if you are cornered by a very aggressive trainee and are intended to get him out of the way in order to escape. Under CAUTIONS sets out the rules for when and what kind of restraints are to be used and how. The staff are also trained how to deal - with a resident who is armed; that is the worst case scenario. The techniques are aimed at keeping a distance and are protective rather than disarming techiques. The recommended distance is 3 to 6 feet. A distance of greater than 10 feet would be considered depersonalizing. There are two techniques available if the resident attacks: these involve pivotting on your foot so that the attacking person goes by and if a blow is struck an object such as a sweater or brief case should be brought up to receive the 8 blow. The Union's next witness was Pat Chapados who is a Residential Counsellor 2 at the Centre. She had seven years experience as a ResidenCal Counsellor at North West Regional Centre in Thunder Bay the last six years of which as an Assistant Residential Supervisor. When she moved south, she took a contract position with Edgar. When she started at Edgar, she was told there were certain things she should not do until she had received the proper training, namely with respect to physical restraints and crisis intervention. In March, 1989, she took the necessary courses. On the day of the incident (July 28, 1989), Pat Chapedos was on the afternoon shift at the Hittcrest Residence. This has what are called intermittent houses. The typical resident can function on his own with minimal supervision. GF was living in the house where she was working that day. He was a 25 year o~d man, 6 feet tall, and weighing about 180-190 pounds. She testified that he had a tong history of violence when he lived at home and in the facility including using weopons against others. On that day, about 1:00 p.m. the work shop where G.F. was working called to say that they had had a problem with him and he had left. Ms Chapedos and the Grievor left to look for him. They met him at the office door. He told them that he had taken a Ghetto blaster to work intending to listen to his own favourite kind of music. He told them that it was the practice to ask the instructor who would allow only one at a'time. So they suggested to him that he return and ask the Workshop instructor. He agreed to do that and they waited awhile to see whether he carried through on it. They then went to the Workshop and the Instructor verified the story G.F. had told them. But G.F. had not come back. After looking in a number of places, they called the office and learned that he was in Oakwood- LJnwood. It is the locked unit and Linwood itself has the time-out room which is a monitored room where inmates are sent to cool-off. They went there and found him talking to another Counsellor, Mark Brooks, who was giving him the same advice. G.F. would have nothing to do with' it. The Hillcrest office called to say that Reynolds (the Manager) would speak to him. They took him to see Reynolds. Reynolds told him that he had to work since that was the rule for residents. When 9 all his week-end privileges or stay in his own house (#48)'for the week-end and not cause any problems and then on Monday talk to the Workshop instructor to see if he could sort · out his problem. He chose the second option and they escorted him back to house 48. The witness explained that that house is an EMU (environmenta~ management unit) house in which the residents are sex offenders or arsonists. It was about 3:00 p.m. and coverage was just beginning as the residents finish work and have free time in. They put, him in his bedroom with instructions to do what Reynolds had told him and to coot down. They returned to the office to get their beepers with the intention of returning to House 48 to assist When a telephone call came indicating that housekeeping staff in the next house (#. 49) had seen G. F. come down the stairs in House 49 (they are attached with a fire) and exit the backdoor. The Counsellor in House 48 (Ivana Trovarello) on being alerted had chased after G.F. The decision was now taken to put him in Linwood and in total four staff now set out to find him. A few minutes later Pat,Chapedos followed the other Counsellors after she telephoned for a vehicle to come to pick G.F. up to take him to Linwood. G.F. was sitting on the' side of the road between House 40 and 39 on the bush" side of the road. The four staff members there when she arrived were the Grievor, Eric Morris'(R.C. 3), Mike Patchell and Ivana Trovarello. G.F, was very excited, yelling and raising his legs up quickly, She saw the staff members attempting to get a four person restraint on him. Suddenly, they went flying and G,F, jumped up and moved onto the grassey part. He walked back towards the bush. He was agitated and exclaiming that they were not going to take him to Linwood, that he didn't care what Reynolds said; he was going to do what he wanted to do. The staff followed him and as he entered the wooded area, he bent over and picked up a tree branch about six inches in diameter and about five to six feet long, · The witness joined the other staff and they formed a semi-circle facing G.F. He was swinging the branch and verbally threatening to kill the staff if they tried to get near him, He also threatened to leave the Centre because he did not like the rules. Other staff members arrived including Blaine Nicholson. The Grievor and Blaine were talking to G.F. "Bush was used here by the witnesses in the Canadian sense of an area covered with trees such as a northern bush which is what this particular area was essentially. 10 quietly in attempt to calm him and to get him to put the stick down. He was backing into the woods. The technique being used was the defusing technique. But he was still screaming incoherently and banging the stick on the trees. About at this point, Chapedos went over to Reynolds' office since he had left instructions to let him know if'there were any problems. She told him what G.F. was doing. She then returned to join the group. On the way back she asked another staff member to check on the whereabouts of the van she had atready requested. Her testimony at this point was that G.F. was beginning to respond to the efforts of the Grievor and Nichotson to calm him. But he was still banging the stick against the trees as he retreated along the path through the bush. Shortly afterwards, Don Reynolds arrived coming up on the witness's right side about 15-20 feet from her. The Grievor was walking beside him at one point but Chapedos could not hear whether there was any discussion between them. The Grievor stopped, rejoining the semi-circle of staff. Reynolds continued walking at a brisk pace towards G.F. He said to him in a loud firm voice to put the sick down. At this point, G.F. holding the stick in two hands brought it down and hit the ground with the end of it, breaking the end off it. Reynolds was about a foot away from him. In her report and in cross-examination, she stated that there were three swings at Reynolds as G.F. walked backwards. Then G.F, took a sideways swipe with the stick at Reynolds while Reynolds was making a tackle of his waist. The stick hit Reynolds catching him on the arm or the side of the face, his glasses went flying and the two of them fell to the ground as Reynolds grabbed G.F. around the waist. The two were wrestling and rolling around on the ground and the rest of the staff intervened to put a proper hold on him. Reynolds tried to speak to him to calm him down as he lay on the ground on his b~tck with his face up, but G.F. was incoherent and furious. Chapedos went to the road and cleared out a landscaping van that was sitting there so that they could transport G.F. to Linwood. He agreed to walk over to the - van which she had driven closer to the site. After driving him to Linwood, she made out a situational report, in cross-examination, this witness took the position that in dealing with a person who is swinging a stick, it is better to back away, but admitted that if you close witl~ the person, the blow will be minimized as you draw closer to the person as he swings. 11 'The Grievor, Judy Storey, has worked at Edgar ~.O.C. since March, 1985 and she has been trained in both physical restraints and crisis intervention. She has also attended the yearly recertification courses in both as wetl'as the monthly practice sessions. She agreed with the testimony of Pat Chapedos and added further details. When GF. attended at Reynolds office, he told him that not' only did he want to be a bum but also wanted to a baby and wear diapers. On other occasions, he has said he wanted to treated as dog and wear a dog collar. Don Reynolds told him that he would not treat a 6' 180 lb adult as a baby at any time. Furthermore, when explaining the options to G.F., i.e. stay in his own house or go to Linwood for the week-end, Reynolds told him that Linwood would not be a picnic, by which the Grievor understood Reynolds to mean that they would put him to work there and he would not just sit in his room and watch television..After they had returned G.F. to his house and returned to the office, a call arrived that he had been reported leaving the house, and so the Grievor, Eric Morris and Mike Pachell set out to find him.. When they found him with Ivana, she was asking him / to come along, he was being physically self abusive by biting the back of his hand and pulling the skin with his teeth. They attempted a four person restraint of him but they did not get a full restraint on him and he broke away from them. He got on his feet and started backing along the path to the wooded area. He was threatening the staff with his hands so they kept a distance.' The Grievor tried to talk to him using calming techniques. The Gateway staff also now arrived so that there were eight staff present. As he reached the bush area, he picked up a stick about 5' ~ong which he began swinging against the trees while he shouted: "1'11 kill you! Come on!" The Grievor and Blaine continued to speak to him. The stick broke against the trees but he picked up another, bigger stick, about 6; long and 6" in circumference. She became aware that Reynolds had been approached about the situation when she looked up and saw Capedos coming; at that point she saw him approaching with John Dossey through the short-cut. At that point the semi-circle of Counsellors was about ten to fifteen feet away from him depending on how quickly G.F. and the group were moving measured by from the reach of his weapon to the group. The Grievor and Blaine Nicholson were trying to talk to G.F. to calm him and he was begining to respond. In 12 order to make him rational, they were asking him questions. One of t~ese questions was: "Why don't you want to go to Linwood?" He replied that he did not want to go to Linwood to work. To this the Grievor responded: "You might not have to work but you still have to go to Linwood." He looked at her as if to say "Like really" something which she considered a very positive response. As she saw Reynofds approach, she tapped Blaine on the shoulder and backed away to speak to Reynolds. She approached him but he did not slow down or stop so the Grievor walked with him. She told Reynolds what she had just said to G.F. and that he did not want to go to Linwood to work. At this point they reached the semi-circle of Counsellors and the Grievor stopped there. But Reynolds continued and did not acknowledge anything she had said. As he approached G.F., she believes he said: "Gordon, put the stick down." G.F. brought the stick down over his head and hit the ground in front of Reynolds with it." Reynolds who in the Grievor's view could have retreated, continued towards G.F. who now swung the stick and caught Reynolds on the side of the head with it. Reynolds then tackled G.F. They then roiled on the ground. The rest of the staff then ran forward and applied a five man take down approach to G.F~ The reason was to protect both of them from injury since G.F. had not been immobilized by Reynolds action. As they took G.F. away, the Grievor noticed that she had injured her hand. She believes it happened when the five person restraint was being applied to G.F. in which she was holding his left leg. She went to the BarrJe Hospital and was required to wear a kind of cotton brace and was on Workers'Compensation for a week and a half as a result. Don Reynolds testifed that he started work at Edgar in December 1968 as a Hospital Aid Attendant. In 1970 he became a Residential Counsellor 1 and then progressed to level 5 by 1976. In his current position of Manager of Residential Programming and Services, he is responsible for overseeing the provision of programming to residents within the Residential Life Department and services i.e. clothing, shelter, furnishings, toiletries and other household items, There are between 170-180 trainees and about 152 staff. He testified that in 1978, he took a three day course in Interventive techniques and then again a two day course in 1986. He produced the Edgar A.O.C. records to support that testimony. 13 Reynolds testified that G.F. was admitted to Edgar A.O.C. in 1'982 and over the intervening years Reynolds has had various opportunities to meet him. He has from time to time had conversations with him including about difficulties that he might have. He felt that he had a very amicable relationship with him. On the day of the incident, Reynolds had'got a telephone call in his office that G.F. was reported having problems' in the workshop and was refusing to stay there. He directed him to be sent to his office so he could speak to him. When G.F. was brought to the office he tried to find out what his problem was and learned that the shop man would not let him play his radio in the shop. He exptained to G.F. that the workshop instructor had responsibility for the rules in the shop and that he had to abide by them. But G.F. said that he would not go back to the shop and that he wanted to be a bum. At this point, Reynolds told him that he had two options: 1. return to the shop or return to his house and think about it but would not get paid if he went to his house. He then left with the staff to return to his house. About 45 minutes later, Chapedos arrived and indicated that G.F. was in the woods and threatening staff. Reyn~)tds left with Chapedos and John Dossey,a supervisor with whom he had been having a discussion. They ~ocated G.F. at the rear of'House 40 with a group of staff, who were in a rough circle aroung G.F. who had a stick in his hand. He testified that he stopped briefly asking the Grievor what was happening and that she indicated that G.F, had run' out of the house and was threatening staff with the stick. He then approached G.F., engaged him in patter: asked him.to put the stick down and talk about his problem. G.F. then swung the stick in a scything motion from side to side and Reynolds backed up. He testified that he was still speaking to G.F. trying to defuse the situation. G.F. took another scything swing at him and Reynolds backed off but G.F. advanced towards him now swinging overhead and the stick broke on the ground. Reynolds says he was still talking to him in an attempt to cool him down by offering him alternatives. G.F. had got another stick from the ground, came forward and took another side swipe at Reynolds. Then he raised the stick over his head and Reynolds testified that he moved forward to .get in close to G.F. under his arms. While trying to do that, Reynolds was struck on the head by the stick and they both went down to the ground. The other staff then moved in and atttempted to supply restraint, Reynolds extracated himself and rooked aroun(J for his 14 -' glasses. The staff now had G.F. in a five man restraint. tn cross-examination, he was asked about G.F.'s background before coming to Edgar, but was unable to give any detaits. He did agree that he had given the third option of going to Linwood for the week-end when he had his discussion with him in the office, It was his view that you should keep 3-4 ' away from the resident during the use of calming or defusing techniques. He was not able to describe correctly the five man ~h~t when Chapedos came ~o his office ~o repo~ ~ha~ G.F. was in ~he woods ~hre~ening s~aff, ~ha~ his assistance had been requested. He did no~ have any ~ecoltecdon of S~orey telling him in ~he woods ~ha~ G.F.-was willing ~o go to Linwood if he did not have ~o work. In his view, i~ did no~ make sense since a~ Linwood residents were on&y required ~o do room chores. He did no~ agree with Storey's ~es~imony as ~o ~he fac~s existing at the time that he ~dved on ~e scene in ~he woods. In his recol[e~ion, she did no~ indicate that she had establishe~ a rap~ wi~h G.F.; j~st tha~ he was refusing ~o s~ay in the house. He did no~ agree w}th ~he Grievor's version of the following events, but dig admi~ ~ha~ he did take ~.F. clown by grabbing him around ~he waist The Inte~entive Technique Repo~ ~ha~ filed on t~e incident did no~ men~ion ~hat ~eynolds w~s a~acked by G.F., or ~hat he tackle~ G.F. Fu~hermore, it was not signed by alt ~he sta~ involved in the application ~he inte~en~ive ~echnique as i~ should have been ~. Reynolds ~esdfied [ha~ he did notice ~he omission oT his personal role in ~he ~epo~ wbe~ ~e reviewed it and ~pproved Neva S~evenson is the Manager of S~aff Developmen~ ~nd Training fiecords. As such she is responsible for organizing all inse~ice ~mining. in 197~ she designed the physical in~e~tion potion of the Crisis In~e~ention course. Tn 1984/5, ~hey incorporated ~he Cdsis in~e~ention course in~o [ha~. She iden[ified ~hibi~ 9 which was the ~eco~ds of _ ~he various courses ~hat Don fieynolds had ~ken. It shows a three day Crisis Inte~en~ion course, a~ Edgar, ~a~' 15-17, ~986 and also a ~ hour course in Inte~en~ive Techniques, March ~4-~5, 1986. She assures ~ha~ a c~d is done on eve~ s~aff ~ The Interventive Technique Report (Exhibit 11) states on its face: NOTE: AIl staff involved in the application of this Interventive Technique must sign this report. 15 and that the card is kept up to date on his/her training. She was personally involved in the January course but not the March course. She verified that Reynolds had begun a course just before this hearing began but had not yet. completed it as of the day of her testimony. Only completed courses appear on the cards. She agreed in cross-examination with Union counsel that you should not approach an armed client unless there is a danger to yourself or another. She also did not have any recollection of scheduling Reynolds for an annual review on physical restraints. She also testified that she would send letters out to the residential areas with the names on them of everyone up for review. She also testified that where the client is violent and there is a danger and he has a weapon, there should be five to six people with someone in charge and then two to three people shoutd move to try to take 'the client down. They should watch always for any distress in the client. Mike Patchetl has been a Residential Counsellor 2 at AOC Edgar since 1981 and at the time of the incident was responsible for a house of five clients. He is one of the people who signed the Intervention Technique Report. He was in the office when word arrived that G.F. had sneaked out of House 48. He already knew that there were problems that day with G.F. and he went with the group of Counsellors that found him sitting on the curb and talking with Ivana.' His recollection was that G.F. wanted to go to Linwood but did not want to do any of the chores. They explained to him that he did have to do the standard chores and could not be just a guest. G.F. then began biting himself so they applied restraints. His description of the outcome of the effort to restrain G.F. at this point was similar tO that of'the other witnesses. When in the woods, his recollection was that the Counsellors were about 20 feet away from G.F. when he picked up a branch about ten feet long and began to hit the ground in front of him. They tried to talk to him, but in his recollection no one took control. Then Reynolds appeared and went forward. He tried to calm G.F. by talking to him. He struck Reynolds with the stick when he got fairly close to him. His recollection as to the exact manner in which G.F. was finally taken down was not too clear. Eric Morris gave much the same evidence. He added that when they tried to restrain G.F. when he started to bite himself while sitting on the curb, that he was kicking and' that Storey, Patchell and Storey all got kicked by him. He also 16 recalled that when they were in the bush and G.F. picked up a stick someone said get Reynolds. He testified that when Reynolds arrived and spoke to G.F., he came under the impression that G.F. calmed down and he turned around to walk away when he heard a shout turned back again and saw GF. on top of Reynolds on the ground. He distracted G.F. and that allowed Reynolds to escape from him. Others then closed in and restrained G.F. He filled out the Report about an hour after the incident. ARGUMENT Mr. Law for the Union submitted that Health and Safety are paramount at Edgar A.O.C. The staff frequently have to deal with dangerous inmates. G.F. was such an inmate. The Employer takes this responsibility seriously and has therefore as the evidence show taken a number of steps to reduce the risk. These include the mandatory courses on crisis intervention and the requirement for staff certification and continuing annual and monthly refresher courses. The use of physical force against an inmate is arrived at only as a last resort. It was the Union's position that the Employer in this particular situation had breached the terms of the Collective Agreement in two major ways: 1. The Employer had not ensured that the management employee in question, namelY, Don Reynolds, was properly trained and current on crisis intervention and physical restraint. The Union submitted that the evidence shows that Reynolds had not completed the 1986 training and had not taken the refresher course. 2. The second breach was that Reynolds was negligent himself in not keeping up to date and in not following the guidelines during the incident with G.F. on July 28, 1989. It was argued that the staff had the'situation in hand by applying the guidelines when Reynolds arrived, broke all the rules and detonated the situation. Counsel for the Union referred the Board to the Occppational Health and Safety Act, R.S.O. 1980, c. 321 as amended. It provides as follows: 1. In this Act, 2. "competent person" means a person who, i. is qualified because of his knowledge, training and experience to organize the work and its performance, ii. is familiar with the provisions of this Act and the regulations that apply to the work, and iii. has knowledge of any potential or actual danger to health or safety in the work place; 14.-(2) Without limiting the strict duty imposed by subsection (1), an employer shall, (b) when appointing a supervisor, appoint a competent person; (g) take every precaution reasonable in the circumstances for the protection of worker; .... 16.-(2) Without limiting the duty imposed by subsection (1), a Supervisor shall, (c) take every precuation reasonable in the circumstancesfor the protection of a worker. Supervisors should be properly trained. He submitted that in this case, Reynolds was not properly trained and on his own testimony unfamiliar with G.F.'s history of violence with weopons. He then referred the Board to its decision in Stockwell and Ministry of Correctional Services, (GSB 1764/87) and Rowe an~ Ministry of Correctional Services, (GSB 350/89). Lack of training was an issue in the Rowe case. In the present situation, the Employer had the knowledge that its supervisor was not being kept up to · date-in the training..Then in the incident, Reynolds broke the rules. The Union requested by way of remedy that the Board make a Declaration and order that Reynolds be properly trained and required to keep up to date. Mr. Patterson for the Ministry submitted that the evidence did not at all show that the situation had been defused before Reynolds arrived on the scene. He also challenged the Union's position that the Ministry had been cavalier in not training Reynolds propedy. He also submitted that Reynolds did not deny that G.F. had a violent background. The evidence in general shows that before Reynolds arrival, the staff had not had success in handling the situation, Reynolds did try to calm G.F. For the status of the law, Mr. Patterson referred us to the Board's decision in M~szko and Ministry of Health (GSB 2511/87) for the proposition that the Employer does not guarantee safety. In his submission, Reynolds behaviour was not unreasonable and when compared to the failed 18 effort of the staff in trying to restrain G.F. when he was sitting on the curb and presumably applying the prescribed techniques, compared favourably. Indeed, the staff effort at that point did not comply with any of the prescribed methods and no body was accepted by the others to take charge. At the same time, Reynolds when he arrived did take charge and focused G.F.'s attention on him. He was trying to establish communication with G.F. while the staff had been too far away and had had to shout at G.F. In reply, Mr. Law argued that the Ministry's defence assumes that it was open to Reynolds to try to solve the problem single-handed rather than follow the Ministry's own guidelines on crisis intervention. That is clearly not the intention of the Ministry's own policies. DECISION Although there are several factual issues in dispute on the evidence as we have seen above, a basic picture of the situation is clear and undisputed. Whether or not the staff on the scene were totally correctly applying the guidelines when G.F. was in the bush area, they were without question attempting to do so. At worst, the situation had reached a kind of Mexican stand-off, and at its best, the staff was beginning to defuse the situation. I must agree with Mr. Law that, in either case, the situation was not all that bad: G. F. was not an immediate threat to staff since they were so positioned as to be able to escape should he suddenly go totally berserk and attack them. Furthermore, they were clearly taking as non-threatening a stance towards him as they could take under the circumstances. On the other hand, Reynolds' arrival, on the scene did result in an entirely different situation developing. He did not use the prescribed techniques. In evidence, he seemed to be somewhat uncertain as to what ail these various techniques were. It seems that instead of applying recognized techniques, he did attempt tO rely on his own personal presence and perceived rapport with G.F. to finess the situation and to advance towards him. ! am not satisfied that he was justified in effect closing with G.F. and seizing hold of him alone. There was no evidence that such an approach is sanctioned by the official 19 methods taught in the Crisis Intervention courses or as set out in the various Policy Statements produced in evidence and set out earlier in this Decision. This is not to say · that Reynolds acted under any improper motives or did not in good faith believe that he was doing the right thing. What is ctear, however, is that he did not use the accepted and officially approved methods and the result was most unfortunate and placed him, G.F. and the rest of the staff at risk. The Ministry has a heavy responsibility in its care of the developmentally handicapped. It has a duty to the inmatees in terms of safety to protect them from themselves and from injuring others. In this effort, it has made an admirable effort to develop appropriate techniques to handle various crisis situations. No one is suggesting, of course, that these represent anything more than an art developed over the years after a great deal of experience. No doubt with more experience, these techniques will be further developed and improved. But in my view, no one with responsibility can safely disregard these techniques. They must sure~y be considered in themselves to be the appropriate techniques in the situations for which they are prescribed. There was no evidence to contrary and it is Ministry policy. If someone wishes to depart from them then he or she has to assume the burden of demonstrating why the deParture was jUstified. In the current situation, I cannot find that Reynolds was justified in departing from the prescribed methods. Indeed, the fact that he did not keep up in his refresher courses, probably explains why he did not apply the prescribed techniques. Nor did it set a good example for a supervisor to be out-of-touch with the prescribed techniques or to consider them insufficiently importa'nt for him to follow? 1. Given that the supervisor did not follow the Ministry's own policies in terms of at the least keeping up in his training in the proPer techniques, and did not follow the · mandatory rules which the Ministry itself has laid down and that the result of his actions were unfortunate and did place bargaining unit staff in danger if not indeed causing iniury to a staff member, I must find that the provisions of the Collective Agreement were violated both by the supervisor, Don Reynolds and by the Ministry in not insisting that he ~ One is reminded of the old army story of the sergeant who tells his men: "Don't do what i do; do what I say". 20 be kept up to date with the result that he did not in fact follow the proper procedures. It did not therefore make reasonable provisions for the safety and health of its employees. within the meaning of s. 18.1 of the Collective Agreement/ 2. The Ministry is hereby directed to make whatever arrangements are 'necessary to provide that Mr. Don Reynolds is immediately brought up to standard with respect to his knowledge and understanding of Crisis Intervention/Intervention Techniques and that he continues to take the prescribed courses and training that are required of all employees so that he wit1 remain current with these various prescribed methods and, techniques. 3. This Board will remain seised of the implementation of this Decision and this panel in particular if and when it is available. Dated at Toronto this 3r~lay of July , 1991 . /~ THOMAS H. WILSON -Vice-Chairperson Member D. MONTROSE Member ~' For present purposes, t do not need to engage in a detailed analysis of the relationship between the Collective Agreement, CECB Act and the Occupational Health and Safety Act. ~ will simply refer the reader to the analysis in Stockwetl an~ Ministry of Correctional Services (GSB 1764/87). -1 APPENDIX A The Ministry made a preliminary objection at the commencement of the hearing. At the time of the incident that gives rise to this grievance, the Ministry statbd that Mr. Reynolds had not been updated on the course within the previous 12 months. {t was the policy of the Ministry at the Edgar Centre that employees take the course and that they be updated annually. The Ministry stated that Mr. Reynolds had taken the course at an earlier time. The Union disputed that. Since Mr. Reynolds had not been updated as the. policy requires the Ministry conceded the remedy requested in the grievance: in the Ministry's view the proper remedy would be to require Mr. Reynolds to take the refresher course. The Union contests that he was in fact certified in 1987. TheMinis. try's preliminary objection is that since it agrees to the remedy requested in the grievance, the Board has lost jurisdiction. In this respect, Ministry Counsel referred the Board to Humenick and Meyer and MNR (GSB 449/89) especially at page 4 where Vice-Chair Kirkwood states: In our case, a settlement was reached by the acceptance by the Ministry of the terms set out in the grievances by the Union, that is, by compensation for the specific days referred to in the expense forms. It is comparable to a contract which is made into by the acceptance of an offer. Unlike the interpretation suggested by the Union's counsel, the offer does not originate from the employer, which is then to be accepted or to be rejected by the Union, Their offer came from the Union, on its grievance form which was accepted by the employer. Mr. Law contested the Ministry's version of the law. He submitted that the statement quoted from Humenick is in conflict with other decisions including Pelletier and ~ 70/82 and the decision in Government pf Nova Scotia and Nova Scotia Government Employees Association (1983), 11 LA.C. (3d) 181 as well as the private sector law set out in that decision. Furthermore, there is always a factor that the Union is asking for a declaration that the Collective Agreement has been violated and not just the remedy itself. In this case, as well there is a disagreement about whether Mr. Reynolds ever was certified. At the hearing the Board gave'an oral ruling dismissing the preliminary objection. However, since Mr. Patterson for the Ministry requested written reasons we are including 22 this appendix. At the hearing, the Board was satisfied that there was in deed a factual dispute between the parties as to whether Mr. Reynolds needed to be certified or recertified so that there was in fact some actually dispute as to the nature of the remedy. That alone would be enough reason to dismiss the preliminary objection. Furthermore, the grievance states that management is in violation of Article 18 of the Collective Agreement. The Union contests that Mr. Reynolds conduct in the subject incident violated Article 18: it is my position that the Union is entitled to have that adjudicated by this Board. The Ministry has not conceded that it is in violation in that regard; it only conceded that Mr. Reynolds should be recertified. That does not represent the totality of the difference between the parties and it cannot unilaterally force the Union and Grievor to accept less than the total panopty of differences and remedies claimed including a finding and declaration that the Ministry violated the Collective Agreement in its. handling of the incident. It is of course for the Union and the Grievor to decide what would satisfied them as a settlement; that is a labour relations judgment on their part. This Board cannot impose a settlement and indeed is not privy to all the reasons behind the decision to push forward with the grievance. In this respect, I would refer to Vice-Chair Pritchard's statement in Pelletier at page 10: Third, once we were seized of the case, it is no longer open to the employer to determine unilaterally the suitability of this case for arbitration. Rather the decision at this stage must be a mutual one, reflecting a genuine settlement of the entire dispute between the parties, and not a unilateral attempt to avoid addressing the merits of the real issue in dispute between the grievor and the employer by settling a position of the dispute between the parties. In this regard he relied on the decision in United Steelworkers ~and International Nic_,.ket Co. of Canada ~td. (1972), 24 LA.C. 51 which stated that the Grievor may continue to grieve for a declaration that the Collective Agreement has been violated even after the employer has conceded the specific remedy sought. I have no doubt that this is correct law in private sector arbitration, that Mr. Pritchard was correct with respect to the Collective Agreement and in any event is the law under section 19 of the CECB Act. With respect to the reasoning in Humeniuk I note that at page 5 Vice-Chair Kirk'wood states; The grievances were individual grievances and did not claim that the collective agreement was violated nor did it seek an interpretation of Article 17.2.2 (b) which we were advised was in contention. The union cannot now seek a greater remedy than that which was set out in their grievance forms. Had the parties wished to have the interpretation of the grievance resolved, in addition to the reimbursement sought, it should have instituted individual grievances and a polic~/grievance. It seems clear to me that the Board in that case considered that alt the existing disputes in the grievance before it had been resolved. Such is 'not the case before us and therefore I need decide whether Humeniuk is compatible with Pelletier. I am satisfied that Pelletier and inco are correct and I am following them. Furthermore, I would be most hesitant to impose some kind of Special pleadihgs rule on grievors with respect to the wording in the grivance under "Settlement Desired". In any event, the actual remedy claimed "recertified/tested in Crisis Intervention/Intervention Techniques" is sufficiently broadly worded to include the factual dispute over certification and recertification which Mr. Law claimed was still unresolved. Accordingly, the preliminary objection is dismissed.