HomeMy WebLinkAbout1994-0588WRIGHT95_10_30
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO 0
1111 GRIEVANCE COMMISSION DE ~& Jt
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELI~.PHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396
.----- GSB # 588/94
OPSEU # 94B899
,
, IN THE MATTER OF AN ARBITRATION
n' - ('. 1
i.J L. .J 1Q9S l
p~ i .-, Under
'V i.j \~.' " , 1
APPEAL r _., r- 'Ji TH. CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Wright)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE S Kaufman Vice-Chairperson
E Seymour Member
D Montrose Member
FOR THE A Lee
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE R Kramer
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING December 22, 1994
February 15, 1995
March 13, 17, 1995
April 13, 1995
Index
page number
The Evidence 1
Personnel & Description of Premises 3
Fire Procedures Training 4
Evidence of Staff on the unit as to
what took place on December 14, 1993 5
Len Cianfrogna 5
Sandra Wright 13
Florence Davidson 23
December 14, 1993 after 7 a.m. 29
Inquiries re Amending the Record 30
The Declsion to Conduct an Investigation 34
Dlsclosure to Staff of the Decision to Investlgate 37
The Sloot/LaRose Investigation 38
The Authors and their Backgrounds 38
Methodology and Duration of the Investigation 39
Mr Sloot's Interview with Mr Cianfrogna 40
The Interview with the Grievor 41
Mr. Sloot's Opinions 46
Administration's Concerns after Receiving the
Sloot/LaRose Report 48
Invitation to the March 21, 1994 Meeting 50
The March 21, 1994 Meeting 51
The Post-Meeting Meeting 57
Informing the Administrator 59
Previous Discipline and Performance Appraisals 61
The Decision to Terminate 64
a) The Authority to Dismiss 64
b) Reasons for Dismissal 64
The Termination 66
Post-Termination Events
a) The College of Nurses Complaints Committee 67
b) The Board of Referees' Decision 67
The Arguments
For the Employer 68
For the Grievor 82
Reply 90
The Panel's Findings 92
The Time that Events Occurred and the Grievor's
Response Time 93
UG's Statements 97
What the Grievor Did and Failed to Do After
Discovering the Patient in Flames 99
The Grievor's First Written Statement 103
The Grievor's Inquiry as to How to Amend 104
The Grievor's Second Statement (Ex. 6, p 9 c - e) 106
The Sloot/LaRose Investigation and Report 108
Communication of Concerns to the Grievor and
the Unlon 111
The March 21 Meetlng 112
The Board of Referees and Complaints Committee
Decisions 115
Performance Appraisals and PreV10US Discipline
Record 116
The Reasons for Termination 118
Our Conclusions 119
Indifference in the Care of the Vulnerable 120
Summary 121
The Arbitral Jurisprudence 125
The Decision 128
The Remedy 132
1
DECISION
This is the grievance of Michelle Wright from dismissal
from her employment as an R N at Queen Street Mental Health
Centre on March 25, 1994 The events on Unit 1-4 on and sub-
sequent to the morning of December 14, 1993 form the back-
ground to this dispute On the advice of counsel for the
employer, the varlOUS patlents referred to by the witnesses
will be identified by initials in the review of the evidence.
In the early hours of the morning of December 14, 1993,
a fire occurred in the room of patient AB on the unit. The
grlevor discovered AB in her room, partly engulfed in flames
AB was severely burned, and died some days later. Counsel
for the employer advlsed the panel that the grievor was not
being held to blame for AB's death. The grievor's represen-
tative advised the panel that the grievor admitted that on
the morning of the fire she had written documentation that
indicated that she, the grievor, had pulled AB from her room,
and that in fact psychiatric Nursing Assistant Len Cianfrog-
na had pulled AB from her room. The union advised that its
position was that dismissal was excessive discipline in the
circumstances.
The Evidence:
Unit 1 Nursing Coordinator Anne Kutty, Manager of Sup-
port Services Gerry Sloot, Occupational Therapy Supervisor
Bob LaRose, the unit 1 Acting Nursing Coordinator on December
13-14, 1993 Elke Schliemann, psychiatric Nursing Assistant
(PNA) Len Cianfrogna, unit 1 Head Nurse Shameer Majeed, then
Acting Assistant Administrator of Nursing Services Gisela
Albrecht, and Union Steward Danielle Latulippe-Larmand, R N ,
gave evidence for the employer The grievor and Florence
Davidson, R N. gave evidence for the Union.
In addition to the oral evidence of the above witnesses,
24 exhibits, identified in Appendix 1 to this Decision, were
submitted in evidence.
2
In her capacity as shop steward, Ms Latulippe-Larmand
had had a conversation with the grievor prior to a meeting
with administration which the grievor requested her to attend
with her on March 21, 1994. She was asked by the employer to
testify as to the grievor's statements to her during that
conversation. The union objected
Generally speaking, labour arbitration proceedings
recognize a union steward- or union representative-grievor
privilege in discipline matters It is similar to solicitor-
client privilege. The purpose of the privilege is to permit
and encourage the free exchange of information and opinion as
between bargaining unit members and shop stewards in matters
in dispute between them and the employer without the fear
that the information discussed can be disclosed to the em-
ployer over the wishes of the member. The privilege is in-
tended to enable communication without fear of reprisal, and
to promote the resolution of disputes. The privilege is the
grievor's and it is only set aside by the agreement of the
grievor to waive it, which was not present in this case, or
by the ruling of an arbitrator or arbitration panel If the
privilege is routinely set aside, and union stewards can be
required to provide disclosure of a member's statement(s)
given to them in confidence and with the intention that the
information not be released, bargaining unit members will no
longer consult with their union stewards as freely The
discouragement of open communication will result in fewer
negotiated settlements of disputes, which is not in the
lnterest of either party. That is in part why the privilege
exists.
The privilege, however, is not absolute In determining
whether the privilege will be set aside over the wishes of
the grievor, an arbitrator or arbitration panel considers
whether the evidence of the union steward is relevant and
probative, and whether the proposed evidence is so necessary
to the case as to outweigh the potential harm to the rela-
tionship between the parties that would result from setting
3
aside the privilege We ruled that we were not satisfied, on
the submlsslons before us, that the proposed evidence would
be relevant to and/or probative and/or necessary to resolve
the dispute Consequently Ms Latulippe-Larmand was not per-
mitted to testify as to the grievor's statements to her prior
to the 21 March 1994 meeting. She was, however, permitted to
testify as to her observations at the 21 March 1994 meeting.
The patient UG's statement(s) to Isabel Zymantas, Ms
Kutty, Ms. Albrecht and Mr. Majeed, and Investigators Mr
Sloot and Mr LaRose at different occasions formed one of the
bases of the hospital's concern regarding the grievor's con-
duct the morning of December 14, 1993 The employer initial-
ly advised that it intended to call UG to testify. Conse-
quently, the panel accepted secondhand (i e hearsay) evi-
dence as to UG's various statements, subject to verification
when UG testified On the third day of hearing, the panel
was advised that UG would not be called
Personnel and Description of Premises:
On December 14, 1993, Anne Kutty was the Nursing Coordi-
nator of unit 1, Queen Street Mental Health Centre Ms. Kutty
and Night Nursing Coordinator JoAnn O'Hara reported to Assis-
tant Administrator of Nursing Service, Gisela Albrecht. Alli-
son Stuart was and is the Administrator of the Centre Ms
Albrecht reported to Ms Stuart. unit 1 Head Nurse Shameer
Majeed reported to Ms Kutty. The grievor reported directly
to Mr. Majeed
Ms Kutty had been on 6-month leave of absence. December
14, 1993 was the first day of her return. During her leave
Head Nurse Elke Schliemann had functioned as Acting Nursing
Coordinator in her place. Ms. Kutty commenced working a 3-
day week on her return from leave and Ms Schliemann conti-
nued as a part-time Acting Nursing Coordinator
We were advlsed that the building at 1001 Queen St
West, Toronto, Ontario has 5 stories and the entire building
4
is referred to as unit l. Each floor accomodates off1ce, ad-
ministrative, supply and treatment areas, and 4 pods, which
are identified as East pod, North pod, and so on The pa-
tients reside in the pods. Unit 1-4 is on the fourth floor.
It has a 32-bed capacity, and had 30-31 patient residents
On the night of the incident, unit 1-4 was staffed by
the grievor, who was the Nurse-in-Charge, by R N Florence
Dav1dson, and by Psych1atric Nurslng Assistant Len Cianfrog-
na. Their shifts commenced at 7 p.m Dec 13, 1993 and ended
at 7:30 a.m December 14, 1993. On that date, there were no
smoke detectors and no sprinklers in the patients' rooms on
the unit Each room had a heat sensor which triggered the
alarm system when the temperature in the room reached l35F
The panel was advised of 7 fire alarms on the Unit. The
alarm in the North Pod was located on the west corridor
beside door 442A.
Fire Procedures Training:
Ms. Kutty testified that Supervisor of Security Gerry
Sloot gives staff annual compulsory lectures of about one
hour in length on Fire Procedures in the Hospital. As well,
a written policy and procedure of what to do 1n case of fire
is available on every floor. It was not in dispute that the
grievor attended a Fire Safety Annual Session on Thursday,
August 27, 1992.
Gerry Sloot, Manager of Support Services advised that he
does fire safety and training lectures, which, he expla1ned,
consist of procedures regarding fire at the Centre. In
cross-examination he said that the lecture is about an hour
in length, during which he runs over policies and runs a film
on fire in Health Care Fac1lit1es, which deals with evacuat-
ing patients and setting off fire alarms
The grievor said that since she was hired at the Centre
on August 28, 1989, she had attended yearly fire lectures,
which consisted of watching "a video . . . of various fires"
5
and Mr. Sloot going "over how to deal with a fi.re" In re-
examination she said that as of December 14, 1993, she had
not had a fire training seminar for that year The evidence
did not establish why she had not attended a seminar that
year
Evidence of Staff on the unit as to what took place on
December 14, 1993:
Len Cianfrogna:
Len Cianfrogna said that he has worked part-time and
full-time at Queen st. Mental Health Centre for 22 years He
is a Registered Nursing Assistant (RNA) as well as a Regis-
tered Practical Nurse (Psychiatric). He is designated at the
Centre as a psychiatric Nursing Assistant ( PNA) .
Mr Cianfrogna said that if only two R N s work on the
same shift, one will be the Nurse-in-Charge who takes orders
from the doctor, and the other w11l look after medication
The R.N S' roles of Nurse-in-Charge and Medication can switch
from day to day. As a PNA, he reports to and takes instruc-
tions from the Nurse-in-Charge He said that his duties in-
clude providing First Aid
Mr. Cianfrogna said that the night of December 13, 1993,
commenc1ng 7 p.m., was busy. In his evidence-in-chief he
testified that around midnight he observed Florence and one
of the other RNs talking to the grievor. Florence left the
unit and went to "the back room next to the elevator". Ex
6, p 1 indicates that the back room next to the elevator is
the Nurses' or Staff Lounge. In cross-examination he said
that he was in the nursing station from 2300 to 12:30 p m
In his evidence-in-chief, he said that around 12:30 a m he
asked the grievor if he could go downstairs for something
from the machine. with her permission, he went downstairs
and came back At 12 45 a m. he asked the grievor if he
could go to the treatment room to do some work, and she gave
him permission to do so as the floor was quiet, and only a
6
few patients were up They were in the smoking lounge At
some point between 12 45 a m and 2 25 a m he left the
treatment room, got something from the fridge and returned to
the treatment room.
In his written Statement addressed to Nursing Coordina-
tor Anne Kutty dated Jan 94 (Ex. 6, P 11 a - c) Mr Cianfrog-
na wrote that he
was in the nursing station at 12 o'clock a m.
speaking on the phone until 0015 hrs. I did ob-
serve Sandra Wright, RN (nurse in charge) making
rounds, knowing that Florence was off the unit. At
approximately 0030 hours I told Sandra "I'm going
downstairs to pick up somethlng from the machine"
and did so. I returned to the nursing station at
0045 hrs., I asked Sandra if I could go to the
treatment room to work on my progress note. I was
aware that the floor was relatively quiet at that
time. I was in and out of the treatment several
times to check the time and to see if everything
was OK. Ms. Wright was in the nursing station at
these times
In chief, Mr. Cianfroga said he went to the nursing sta-
tion at about 2 25 a.m. and asked the grievor if everything
was ok. He checked the Patient Hourly Check and saw that the
hourly rounds had been done. He saw two patients at that
time in the smoking lounge, one was UG. When he finished
talking to the grievor, he went to the washroom, and then to
the treatment room
In his written statement (Ex. 6, p 11 a - c) he wrote
at approximately 02.25 hrs. writer was in the nurs-
lng statlon. I observed two patients in the smok-
ing lounge and one of them was [UG] I was reas-
sured by Sandra that everything was 0 K. writer
then went to the washroom, then returned to the
(the copy appears to have been cut off here--
assume) . treatment room.
On this point, the Sloot/LaRose interview note (Ex 6, p
lOa) states
At approximately 0230 hours, on Dec 14/93 Len
Clanfrogna was in the nursing station From
the nursing station he went to the treatment
room to stretch his legs
7
In his evidence-in-chief, Mr Cianfrogna testified that
he was in the treatment room at 2 50 a.m, and that at that
time the grievor opened the door and said there's a fire in
AB's room, get a wet blanket and go to her. In cross-exami-
nation he said that he heard the grlevor say that to him at
the same time as the door to the treatment room opened. When
the door opened he was lying on the stretcher looking at the
door He had been doing some yoga exercises before that In
cross-examination, he said that he was in the treatment room
to work on progress notes The room has a desk, phone and
stretcher, a sink if you want to freshen up, the room is used
for breaks He said that he had been there about 1 1/2 to 2
hours.
Mr Cianfrogna testified in chief that after the grievor
summoned him he looked at the clock and it indicated 2:50
a m. He told the grievor that he would take care of AB and
that she should evacuate the patlents In cross-examination
he said that he told the grievor specifically that he would
look after AB He said that there were 32 patients that
night on the 3 pods for which he, the grievor and R.N. Flo-
rence Henderson were responsible. He went to AB, and the
grievor started to evacuate other patients
In his statement (Ex. 6, p 11 a - c), Mr Cianfrogna had
written
At approximately 02 50 HRS writer heard Ms Wrlght
called (sic) out & opened the treatment room door,
saying "There's a fire in [AB's] room, "Get some
wet blankets immediately." I reassured Sandra that
I would look after [AB] and for her to evacuate and
assist the other patients. On my way to [AB's]
room, lUG] was in the hallway near the nursing
station."
In chief, Mr. Cianfrogna testified that while walking
toward AB's room he looked at the ceiling for any smoke, and
the amount of smoke. In cross-examination, he said that he
walked fast to AB's room, but was not running There was
some smoke on the ceiling in the corridor near rooms 425-428,
but none in the TV lounge adjacent to the smoking lounge.
8
Mr. Cianfrogna acknowledged that the grievor had asked
him to get a wet blanket He said that he did not get one.
When asked why not, he replied that he went to see if AB was
ok and out of immediate danger.
In his statement (Ex 6, plla-c), Mr. Cianfrogna
wrote
As I approached [AB's] room, I was looking up the
ceiling to check for any smoke, & found that the
door was partly shut I pushed the door & saw [AB]
standing, facing the wall in front of her desk, un-
der the heat sensor There were flames coming be-
tween the sldes of the bed & [AB's] back & around
her legs, Flames were approximately 3' to 5' in
height. I called her name, she looked at me & I
walked in and grabbed her, pulling her out of the
room into the corridor shutting the door.
Mr Cianfrogna described the typewritten note of his
interview with Mr Sloot and Mr. LaRose (Ex. 6, p lOa) as a
"somewhat" accurate reflection of his interview, and then
said that it was "basically accurate". On this point it
stated
At approx 0250 hrs, Len heard S. Wright call
out that patient A B was on fire The door to the
treatment room was closed. S. Wright opened the
treatment room door and asked Len to get a wet
blanket immediately. Len assured Sandra that he
would look after A B Len did not get a blanket
because he knew that he had given out the last
spare one. Len proceeded to A.B 's room while
Sandra began evacuating patients in the west corri-
dor of the north pod. (emphasis added)
Mr. Cianfrogna did not point out any errors or omissions
or distortions in Mr Sloot's note. In re-examination when
asked whether he knew there were any blankets, he said "at
the time, I didn't think so--I'd given out a few to patients
earlier" He sald that he had told Mr Sloot that he had
given out the last spare one.
In chief, Mr. Cianfrogna said that when he arrived at
AB 's door, it was partly shut He pushed it open and saw AB
in profile, facing the left wall of her room. She turned her
head and looked at him and said nothing Flames were coming
from the edge of her bed and from her back, approximately 3
9
to 5 feet high He yanked her wrist and pulled her out of
the room and closed the door. When asked in chief whether he
felt his personal safety was at risk, he replied "well, there
were flames, but I felt she had to come out". He said that
he told AB that she was ok, that her face was ok, that she
was somewhat burned He asked her if she was feeling hot or
cold, and AB said "no dear, everything is ok" or words to
that effect He said that AB's clothing was burnt off, and
that he pulled her by her wrist out of the room, and that the
flames "had been coming" from her legs and the bed The
panel therefore concludes that when Mr. Cianfrogna pulled AB
from the room, once she was beside him in the corridor, she
was not in flames.
Mr. Cianfrogna said AB remained calm, and expressed no
pain, He said that AB was more calm than he was In cross-
examination, he said AB was calm, directable, gave him eye
contact, and reassured him that she was OK.
Mr. Cianfrogna's written statement (Ex. 6, p 11 a - c)
indicates
Questioning [AB] (portion cut off) she was OK she
responded "Everything is OK dear" She gave me
direct eye contact. I told her that her face was
OK & that some of her hair was burned on her right
side near her ear. I asked her "are you feeling
any pain"? Are you feeling hot or cold? She re-
plied, "No dear." She appeared calm & followed my
direction.
Mr. Cianfrogna said that he told AB that they would
leave the North Pod They proceeded down the corridor past
room 426, through the lounge, past the smoking lounge, to
room 423 (the AMSCAR or clean room) and that he left AB in
the hallway. He later estimated that it had taken him 30
seconds to walk from the treatment room to room 433 and 5 to
10 seconds from the time he opened the door to the time he
pulled AB out
In cross-examination, Mr. Cianfrogna said that he did
not see Ms Wright evacuating other patients out of the same
area as room 433, but that she could have been close by. The
10
panel notes that the corridor in the north pod is U-shaped
and the part of the corridor adjacent to rooms 441-438 would
have been around the corner from and out of Mr Cianfrogna's
sight while he was at room 433 and in the corridor adjacent
to rooms 425-428
Mr. Cianfrogna said in chief that he entered 423, the
Clean Room, and got 2 housecoats for AB He came out of room
423 with the housecoats and AB was not there, she had wander-
ed away. He said "at that point the alarm went off" In
cross-examination he said that the alarm "went off" when AB
wandered away from the clean room. In his statement (Ex. 6,
p 11 a - c) Mr Cianfrogna wrote
[AB] had no clothes on & I took her to the Amscar
area The fire alarm was on at this time. (empha-
sis added) "
Mr. Sloot's interview note (Ex. 6, p. lOa) states
Len was looking for smoke at the ceiling level
while walking hastily down the east corridor of the
north pod. Upon arriving to A B. 's room, the door
was slightly ajar. He pushed the door open and
observed A.B facing east staring at the wall.
Flames were shooting three to five feet high from
the side of the bed and on A B.s back.
Len called her by name, walked in and grabbed
A B by the wrist and pulled her out of the room,
closing the door behind him Len and A.B. were in
the north hallway when he asked her if she was OK.
He told her that her face was not touched but that
her hair was slightly singed. Len asked A.B. if
she was in any pain, hot or cold, and A.B. respon-
ded that she was not. Len had direct eye contact
with the patient and there did not appear to be any
expression of pain As they walked up the east
corridor of the north pod, the fire alarm sounded
and Code Red was announced (emphasis added)
In re-examination, Mr Cianfrogna was asked whether any-
thing struck him as wrong in the Sloot/LaRose interview note
(Ex 6, p 10 a - b) or whether he could discern any omission.
He replied that he could not As he was not invited to and
did not compare his own statement to Mr. Sloot's, it is not
possible to draw any conclusion from his reply
1 1
In re-examination Mr. Cianfrogna said that inserting a
key in the Fire Alarm Box and turning it to the right causes
a "continuous alarm" to "appear on a panel downstairs to our
main switchboard" on the first floor, which indicates to the
person on switchboard the floor from which the alarm origina-
ted. He said that the person on switchboard "tells others
where it is". He agreed with the suggestion that if a person
puts a key in the fire alarm box, that gets other people up
there immediately
After Mr. Cianfrogna said in chief that the alarm "went
off" , he said "all the other staff came out of the slde
exits" He then said that he found AB in the South lounge.
In cross-examination, he said that there was a good response
to the alarm, that everybody came, and that until then it had
just been him and the grievor No other patients or staff
were injured that night
In his written statement, after he wrote " [AB] had no
clothes on & I took her to the Amscar area. The fire alarm
was on at this time.", Mr. Cianfrogna continued:
"I dressed [AB] with two clean housecoats & assis-
ted her, together with the other patients in the
hallway to the dining lounge. When the duty doctor
came. "
In chief, Mr. Cianfrogna testified that other staff, includ-
ing the grievor, were evacuating other patients, assembling
them in the hallway hear the nursing station and smoking
lounge and taking them to the dining room They had qUlte a
few difficult patients and "we had to call security to get
them out of their rooms". In cross-examination he said
"other staff" called security for assistance with difficult
patients.
Mr. Cianfrogna testified that "within minutes the fire
department came up". They were directed to AB's room. The
paramedics also came up.
In chief, Mr Cianfrogna testified that AB was with the
other patients in the dining room when he, Ms. Wright and the
12
duty doctor accompanied AB to the treatment room He did not
know who had been dealing with AB's care before then and he
had not been with her continuously. He did not see the grie-
vor tending to AB's medical care. He said that she was
"there" when the doctor was In cross-examination, Mr
Cianfrogna said that while AB and the grievor were in the
dining room, the duty doctor (Dr. Harrison) carne out of the
elevators (the doors of which open out onto the dining room
area) , and that he called AB and told her they would go to
the treatment room Mr. Cianfrogna said that he, the grievor
and the doctor walked AB to room 462 (treatment room), and he
left AB with the grievor and the doctor at room 462.
In his statement (Ex. 6, p 11 a - c) Mr Cianfrogna
wrote
When the duty doctor came, Annie got up from the
chair and walked to the treatment room with Sandra,
the doctor & writer. I then left the treatment
room to assist other patients & staff."
In cross-examination, Mr. Cianfrogna was asked whether
the paramedics who arrived with the fire department attended
to AB. He said that after they saw her in the treatment
room, they brought her into the Amscar/clean room (#423), and
that he saw the paramedics treating AB in room 423. Later in
cross-examination he said that "at some point they" took AB
across the hall to the clean room, and that the firemen and
the paramedics treated her with saline He remembered that
Florence Davidson was present when the treatment was occur-
ring in room 423. He did not remember how much time passed
between the time AB was in the treatment room (462) and then
was in the clean room (423). He was unable to recall whether
he had seen the grievor between the times he observed AB in
the treatment room and then in the clean room
Mr Cianfrogna said that although the Staff Assignment
Sheet (Ex. 6, p 24) indicated that he was to do the rounds
from 0200 to 0400 that morning, Ms Wright had done those
rounds He said that he and the grievor had a good working
relationship and trusted one another and that between em-
13
ployees with such a relationship, an understanding, though
not a rule, arises that they will do their rounds for one
another if the other is not on the unit In re-examination
he agreed that on December 14, 1993 he was off rounds from
2100 to 0200 and that the grievor did his rounds for him from
2300 on December 13, 1993 to 4 a.m on December 14, 1993 and
that the grlevor had done the 0200 and 0230 rounds.
Mr. Cianfrogna was asked in re-examination whether he
knew if AB was in shock. He testified that he had done a
formal assessment of her condition He said that she was not
disoriented and unable to follow directions, and that her
burns were not visible. He then said that there was one burn
at the front and one burn at the back. He said that because
AB was obese, he had used housecoats to cover her entire body
and that she was "presentable" in the dining room. He said
"nobody would've believed she was a burn victim". He later
said that AB's skin was discoloured, reddish, and that her
feet were somewhat swollen. He said that he had no communi-
cation with the grievor or any of the other nurses regarding
his observations of AB He agreed with the suggestion that
he had not communicated with them on that subject because
things were busy and AB was calm
Sandra Wright:
The grievor testified that on night shift, the Nurse-in-
Charge is responsible for assigning tasks to other staff, and
for overseeing the ward and the patients on it. The Nurse-
in-Charge contacts the doctors if any concerns are brought to
her or the PNA regarding the patients She assigns medica-
tion to the second R N. and if any concerns arise about a
patient's medication, she and the other R N. discuss it and
call the duty doctor She had been rotating into the posi-
tion of Nurse-in-Charge, Charge Nurse, or Team Leader, the
functions are the same, since 1990 Four people staffed the
unit from 7 p m to 11 p.m , and three people, including her,
staffed it from 11 p m to 7 a m She confirmed that during
14
that period on December 13-14, 1993, she, R N Florence
Davidson, and PNA Len Cianfrogna had staffed Unit 1-4
The grievor testified that "shortly before 3 o'clock"
patient UG came to the nursing station, where she, the grie-
vor, was finishing up some work. The grievor said that she
had been working on some Progress Notes that night, because
she had a patient who was being discharged on December 15,
1993. When UG came to the station she said "Sandra, I think
[AB] is having a nightmare, she's screaming I think she's
having a nightmare" or words to that effect. The grievor
said that she thanked UG and told her she would check on her
"momentarily" . She said that she was just writing her last
train of thought in one of her progress notes She picked up
the flashlight and got some gloves. She left the nursing
station no more than 2 to 3 seconds after UG spoke to her.
She said that she spent just enough time at the desk to
"finish the sentence and that was it". In cross-examination
she said "it was just 3 words".
The grievor said that most of the patients request that
their rooms be locked, that the patient may exit his/her room
without a key, but that this prevents others from entering,
and that she activated a switch in the nursing station to
unlock the patients' doors, thereby eliminating the need to
use a key.
In cross-examination, the grievor was asked whether she
had any explanation for the discrepancy between her evidence
that UG came to her once, and the indication in the Sloot/La-
Rose Report (Ex 6) that UG is reported to have said that she
came to her twice, and Mr. Shameer's and Ms Albrecht's evi-
dence that UG had told them she had come to the grievor
twice. She replied that she did not have an explanation.
The grievor was asked in cross-examination whether she
as a matter of practice continues to write when someone ad-
dresses her. She replied that she had just written 3 words
When asked whether she would always do that, she replied "it
took 2 or 3 seconds at most". When asked whether UG's advice
1 5
to her that AB had been screaming meant anything to her, she
replied "no, it didn't"
The grievor testified that she closed the door to the
nursing station, and walked past the lounge and down the cor-
ridortoward AB's room She said that she smelled smoke but
that she d~dn't notice anything unusual in that, as the ward
is "always smokey" She said that the patients "always smoke
in their rooms" and that they rarely use "the room designated
for it". She said that when she got to AB's room, she opened
her door and saw flames She did not hear AB screaming. She
said that to her left she saw flames on the bed-linen, that
AB was facing east (away from the bed), that flames were
around and behind her, that AB was swinging and flailing her
hands. She said "it looked liked [AB] was attempting to put
the flames out" She said that when she opened the door and
saw AB flailing, she "panicked a second" and then ran "at
breakneck speed" to the treatment room where Mr. Cianfrogna
was. She said she had "never seen a real live fire before".
She said that at the time Florence Davidson was in the lounge
near the elevators She ran to the treatment room, screamed
for Mr Cianfrogna, told him there was a fire in AB's room
and told him to bring a wet blanket.
The grievor testified that she did not pull AB from the
room because AB was quite obese and she didn't feel she could
handle it. She said that she felt she would do more damage
to herself and to the both of them by attempting to pull her
from the room She and Mr. Cianfrogna "raced back together
down toward AB' s room", and on their way, Mr Cianfrogna said
that he would look after AB because he had 2 patients on
either side of AB's room who were very sick. She said "so I
gave him the directive".
The grievor said that she and Mr. Cianfrogna were shout-
ing at one another "what about M and S", the 2 patients on
either side of AB's room She said that Mr. Cianfrogna "went
to" AB and that she "went to M and S, moreso to M" She said
that one of those patients had not been eating and "was coma-
.
16
tose" and that the other was neither eating nor taking her
medication She said that "when we got those two" patients
out of their rooms, she was about to put her key in the fire
alarm box when the Code Red was announced.
In cross-examination, the grievor confirmed that she
said she had pan~cked, and added "but just for a split se-
cond". She denied having been panicked after that. She said
that when she was running back to AB's room with Mr Cian-
frogna she realized she had to take charge. She then said
that Mr. Cianfrogna told her to take care of the others She
agreed with the suggestion that her panic ended on the way
back to AB's room
The grievor testified that on hearing the Code Red, she
continued the evacuation of the pod. She said that some of
the patients did not want to leave and that they just lay in
their beds She said she was unassisted in the evacuation at
this point and that Mr. Cianfrogna was still with AB She
said she had to pull some of the patients from their beds,
and that as she was taking them out of the pod, she met Ms.
Davidson just outside of the lounge and passed the one pa-
tient with her on to Ms. Davidson. She said she then went
back down the corridor "to get the other patient"
In cross-examination, when asked whether she evacuated M
and S, the grievor replied that a Code Red was announced over
the public address system just as she was about to put her
key in the box. She agreed that if she had put the key in
earlier, that would have brought help that much sooner
The grievor said that other staff had arrived at that
point and were getting patients from "the other side of the
pod". She said that "we" brought the patients to the blue
desk in front of the nursing station, that "we" evacuated the
North, South and West pods, and moved everyone into the din-
ing room, because the smoking lounge was in the North pod.
She said that some of the patients wanted to "go in there for
a c~garette at that time"
1 7
The grievor testified that she had eye contact with AB
during the evacuation. She said that AB was at the blue desk
in gowns which Mr Cianfrogna had placed on her, and then
said that "we" moved everybody into the dining room She
said that Ms Davidson did a head count and that other staff
were with her at the time. In cross-examination, when it was
put to her that once Mr. Cianfrogna had put dressing gowns on
AB, AB appeared relatively calm and stable, the grievor rep-
lied "yes, she was" She agreed that the fire was confined
to AB's room, that AB was the only patient who had suffered
any burns, and that she was focusing on evacuating other pa-
tients. She agreed that she and Mr Cianfrogna were the only
two staff who saw AB in flames in her room. She agreed that
she was unable to see the extent of AB's injuries because of
the gowns. She initially denied that she was the only nurse
present who could have known the extent of AB's injuries and
indicated that Mr Cianfrogna would have known the extent of
them She subsequently acknowledged that Mr. Cianfrogna is
not a nurse, but a PNA, that there was a difference between
the two, and that she was the only nurse who would have known
the extent of AB's injuries. When asked whether the extent
of her assessment of AB had been eye contact with her in the
dining room, the grievor stated that she was aware of her in
the vicinity when she and Mr. Cianfrogna were evacuating
other patients, and then acknowleged that eye contact had
been the extent of her assessment of AB.
When asked in cross-examination whether she had left AB
in the dining room, the grievor replied that all the patients
were in the corridor near the blue desk and they wanted to go
into the smoking lounge She acknowledged that AB and the
other patients were subsequently in the dining room and that
she went back onto the ward She acknowledged that she did
not ask any of the other R.N.s to check AB's burns. She sald
that there were several other staff in the dining room, and
that she, Mr. Cianfrogna and Ms. Davidson had lots of help
with the evacuation.
18
The grievor testified that after she helped usher the
patients from the ward to the dining room, she walked from
the dining room to a blue desk ln the hall outside room 423
and that from there she observed staff standing at the wall
of the smoking lounge and asked them if anyone had seen the
duty doctor come in. She said that the staff said "there he
is" and that the doctor was in the corridor "behind me" and
"coming back" from the South Pod In cross-examination, she
said that she did not know how long Dr. Harrlson had been on
the floor, that she told him which room the fire was in and
took him to the dining room to look at AB. She said that AB
was in the dining room when she and the doctor entered it,
and that Ms. Davidson was also there, overlooking the other
patients. After telling Ms Davidson that she would take AB,
she escorted Dr Harrison and AB into the treatment room
The grievor testified that Dr. Harrison asked AB "what
happened" and that AB did not respond to his question and
asked him for a cigarette She said that the doctor told AB
that they just wanted to take a look and see if she was in-
jured, and that they could deal with the cigarette later and
that AB said "ok" The grievor said that it was "really
hard" to see the extent of AB's injuries because of the 2
gowns. She said that AB's hands had been visibly burned and
her legs were reddened. She then said that Dr. Harrison
tried to take off AB's top gown, but that it was sticking, so
he didn't attempt to remove it Dr Harrison asked her to
bring some wet towels and wrap them around AB's hands and her
arm. She ran to the Amscar/clean room, obtained 2 bath tow-
els, wet them in the treatment room sink, and wrapped them
around AB's arms The doctor asked her to call an ambulance
and said that they were going to send her to "the General
Hospital", which we were advised, means a medical hospital
The grievor testified that she proceeded from the treat-
ment room to the door of the nursing station (446) where, co-
incidentally, Ms. Davidson had arrived from the dining room,
and that she asked Ms Davidson to call an ambulance. She
19
said that a man in a navy blue uniform had overheard her
speak to Ms Davidson and said to her "we've already done
that" She sald in cross-examination that after learning
that, she returned to the treatment room, advised Dr Harri-
son, and then returned to nursing station to ~et the transfer
documents prepared. She said that she did not know how much
time passed from the time she first saw AB in flames, and the
time she met Ms Davidson at the nursing station and asked
her to call an ambulance. She said that there was no one
there to assist her in running back and forth between the
treatment room and the nursing station, that only she, Ms.
Davidson and Mr. Cianfrogna were on the ward, and the other
staff were in the dining room.
The grlevor testified that she entered the nursing sta-
tlon and was getting forms for Dr. Harrison to fill out and
AB's chart when Dr. Harrison entered the station, and she
gave him the chart and forms and the number for Toronto Wes-
tern Hospital Dr. Harrison called Toronto Western Hospi-
tal's emergency department and told them that the Centre was
sending a patient over there She left the station and met
Night Nursing Coordinator JoAnn O'Hara just outside the door
to the Soiled room (469). She told Ms O'Hara "what the doc-
tor was planning on doing" and asked her who to assign to ac-
company AB to the hospital After she advised her that Ms
Davidson was the other RN on shift with her, Ms O'Hara told
her to send Ms. Davidson.
The grievor testified that she told Ms Davidson that
she would accompany AB to hospital. Ms Davidson asked Ms.
O'Hara about the forms, and she, the grievor, told Ms. David-
son that Dr Harrlson was completlng them Ms O'Hara told
them not to bother with the forms, but to leave with the pa-
tient and the forms would be sent by taxi later.
The grievor then testified that having left AB in the
treatment room with Dr. Harrison, she next saw her in the
Amscar/clean room receiving first aid from the fire person-
nel. She said that at the time, Ms Davidson and Mr Cian-
20
frogna were "on the floor" and that she "was running from the
treatment room to the nursing station" She said that Dr.
Harrison may have given AB to Mr Cianfrogna or Ms. Davidson
to take to the Amscar room She went to the nursing station
and Dr. Harrison was there She told him Ms O'Hara had said
that Ms. Davidson would accompany AB to hospital and the
forms would be forwarded by taxi if they were not ready. The
grievor then said that she went into the Amscar room and that
AB was there. They had removed the towels she had put on
AB 's hands, and poured normal saline on her, and applied ste-
rile gauzes Ms Davidson was in the room, and she, the
grievor, told her that the ambulance was there, that the
paramedics were ready to take AB, and that she was to leave
with them. She said that just as Ms. Davidson was about to
leave, she ran to the nursing station door and told her that
the normal saline needed replacement, so that she, the grie-
vor, would remember to request the day staff to replace it
As Ms. Davidson was speaking with her, Dr. Harrison said his
papers were ready, so she folded them, put them in an enve-
lope, and gave them to Ms. Davidson, who then left with AB
and the ambulance attendants
The grievor testified that as she was on her way to the
dining room to ensure all the other patients were ok, Ms
O'Hara, who was standing by the door to room 417, showed her
a blue cigarette lighter and told her that the fire personnel
had taken it from AB's room. The grievor said she went into
the dining room and one of the other patients, who she des-
cribed as "certified" and a "great elopement risk", and occa-
sionally incontinent, was sitting in a wheelchair She said
that during the commotion the patient had tried to get on the
elevator and the security guard had stopped her, that the pa-
tient can cause herself to urinate when she wishes to, and
that the patient had urinated on the floor, began to swear
and jump about, and had slipped in her urine, and "apparently
twisted her ankle". She said that that was why the patient
was in a wheelchair She returned to the ward to inform Dr
21
Harrison, and they went to the dining room where he checked
the patient's ankle and determined there were no broken bones
and ordered treatment of maintaining the foot elevated and
applying ice
The grievor said that she and Dr. Harrison returned to
the nursing statlon where they encountered Ms. O'Hara, and
that she, the grievor, told Ms O'Hara about the patient. The
grievor said that there were forms that had to be filled out
for AB and the patient with the twisted ankle, incident re-
ports for AB, charting for the patient, charting for the doc-
tor, that she had to give him the patient chart. She said
that there was a ton of paperwork that Ms. O'Hara told her
had to be completed
The grievor said that Ms. Davidson telephoned her from
Toronto Western Hospital and asked the time the Code Red had
been called, that she, the grievor, told Ms Davidson that
she would telephone the switchboard for the lnformation,
and told Ms Davidson to call her back for the information.
She called the switchboard and was advised that the Code Red
was called at 2:55 a.m Ms. Davidson telephoned her again
from Wellesley Hospital, but the grievor could not remember
the time of her call
In cross-examination, with reference to her Job Speclfi-
cations (Ex 9) the grievor acknowledged that one of her du-
ties is to provide direct care during a crisis, and that as a
charge nurse, she also has a managerial function toward the
staff on the shift She acknowledged she had been a charge
nurse on many occasions since 1990 and was familiar with it
as a positlon of responsibility. She acknowledged that when
she discovered AB she was in crisis. She agreed with the
suggestion that AB's flailing of her hands would have fanned
the fire more. She acknowledged that she had not said any-
thing to AB when she opened the door to her room and saw her
By way of establishing what she had written following
the lncident, the grievor testified that most of what appear-
ed on the Memorandum dated December 14, 1993, (Ex 6, P 9b)
22
was in her handwriting. She said that she wrote the portion
that is in her handwriting between 6 and 6:30 a.m. on Decem-
ber 14, 1993 She said "it's from the patient's chart", and
said it was "the documentation" that she "put in the pa-
tient's chart that morning". She then testified that she did
not write the portion of Ex. 6, P 9b that she identified as
in her handwriting on Memorandum stationary, upon which her
handwriting appears in Ex 6, p 9b She testlfied that she
did not rewrite "it" onto a Memorandum. She testified that
she did not know how it got onto the Memorandum paper and
that the words "Administrator" at the top of the page and the
printed words "Sandra wright R N." next to her signature are
not in her handwriting She testified that the signature at
the bottom of the page was hers. She then agreed that the
text above her signature was what she wrote on the patient's
chart. In cross-examination she acknowledged that she had
written on AB's chart that she had pulled AB from the room
and that that statement was false
When asked why she wrote then (December 14, 1993) that
she "grabbed the patient from the room" she replied that she
wrote it between 6 and 6:30 a.m., that there was a lot of
confusion on the floor, that it was never her intention to
write anything in order to mlslead, that she omitted several
sequences of events unintentionally, that she was rushed and
trying to finish off her shift by 7 am., that she did not
write the text of Ex. 6 P 9b as a Statement, that she had
written the patient's chart, and "also the one that gets sent
to the nursing office", and "my Statement that Elke Schlie-
mann asked me to write as to what r'd been doing until the
fire happened" The grievor said that the Statement that she
referred to as the one that Ms. Schliemann asked her to write
was the one which begins on p 9c of Ex 6
The grievor testified that two days before Christmas Ms
Schliemann asked her to write a Statement. She said that she
wrote it after Christmas, and did not indicate how long after
Christmas. She later said that Ms. Schliemann asked her for
23
an account of her actions from 12 midnight to 3 a m on the
morning of the fire, at which time she learned from her that
an investigation would be conducted
The grievor acknowledged in cross-examination that her
main task was to care for patients, that another duty is to
complete records of patient care, that filling in reports and
charts is part of her day-to-day work, that she is required
to be accurate in filling out her reports, and that on the
night of the fire she had some reports regarding a patient
who sprained her ankle, and AB, and some charting to do. She
acknowledged having said earlier that there were "tons of pa-
perwork" that Ms. O'Hara had told her to complete. She said
that she remembered having to fill out a I-page pink form, a
Fire Marshall's report. She acknowledged having filled out a
2-page incident report (not produced), and a I-page chart.
She said those were the only forms that she could recall.
She agreed that she was rushed to finish the report, and said
that the charts had to be in the nursing office by 6:30 a.m.
She acknowledged that she did not ask anyone for a few
minutes more time to complete and/or to check them.
When the grievor was asked whether she was in a great
deal of shock when she was writing the report, she replied
that she "was shocked" and said "you can still function even
in a shocked state of m1.nd". She said that her state of mind
was due to the "cumulative effect".
The grievor did not dispute the statement that she did
not pull AB out of the room and that she wrote false informa-
tion in her first documentation. She advised the board that
she was not afraid that she would be severely criticized for
not having pulled AB out of her room when she wrote the ini-
tial documentation stating that she had pulled AB out of her
room
Florence Davidson:
Ms Davidson testified that she had worked at the Centre
for almost 5 years as an R N. and had been working the morn-
24
ing of December 14, 1993. She was in the nurses' lounge "on
her designated break" when she heard the alarm. She could
tell it was on her unit from the steady ringing She said
that the alarm first made her aware of the fire, and that she
had not heard any other noises from the unit before then
When she heard the alarm she immediately went to the unit,
where she heard Ms wright "screaming to patients on the
North or South Pod to get up and move". She said that she
went to the Pod and that the grievor was trying to get a pa-
tient who was being very difficult out of the area, and that
she told her she would take over the patient, and got the pa-
tient out to the nursing station area, and directed that pa-
tient, and other patients who were milling around the nursing
station, out to the dining area. She said that the grievor
was still trying to evacuate the patients. In cross-examina-
tion, she confirmed that the grievor had not told her about
any patient having been injured, that they had had no conver-
sation at all about that. She also said that she heard "Code
Red unit One" while she was on the ward.
Ms. Davidson testified that she remained with the pa-
tients in the dining area, once they were in the area, and
maintained a head count and kept them calm and off the eleva-
tors She said that relief staff were present, but because
they did not know the patients, she remained in the dining
area and directed them. At that time she was not aware that
a patient had been "involved in the fire". She agreed that
AB was in the dining room.
When asked whether AB looked as though she was injured,
Ms. Davidson stated that she didn't really look. She then
said "Superficially, no, but I wasn't close enough to see her
skin" She said that she did not see the grievor in the din-
ing room until the doctor arrived, that the grievor was eva-
cuating patients before then The grievor and Dr. Harrison
took AB out of the dining room, and she, Ms Davidson, remai-
ned there with the patients.
25
Ms. Davidson agreed that at some point she left the din-
ing room and went to the nursing station She said that Mr
Cianfrogna had come to the door of the dining room, at which
point she asked him to watch the patients, and that she went
to the unit She said that the gr~evor met her on her way ~n
to the unit and told her to call an ambulance, that she went
to the nursing station and that as she got there another per-
son said he had already called.
Ms Davidson said that she went to prepare the transfer
documents. She then said that she learned from Ms. O'Hara
that she was to accompany the patient and that she was to
leave the papers and Ms. O'Hara would send them by taxi. She
said that when she learned that she was to accompany AB, AB
was in the Amscar room with the ambulance attendants, who
told her that they needed more normal saline, with which they
were wetting the patient She said that there were only two
left and she asked Ms. O'Hara to call the units for more. She
said that she and AB left with the ambulance shortly after
that.
Ms. Davidson testified that she and AB arrived at Toron-
to Western Hospital at about 3:35 am, and that AB was taken
to the emergency department. She said that there seemed to
be some confusion over what to do, that they said they didn't
have a burn unit or a doctor, and that she should go to Wel-
lesley Hospital. She said that a lot of time was spent deli-
berating before any treatment was actually provided She did
not note the time the doctor arrived, then said probably
around 4 40 pm., then that doctor arrived "a few minutes
before they left for Wellesley".
Ms Davidson then said AB was handed over to their care,
but that she, Ms Davidson, was "in the area where [AB] was"
AB appeared to be rational and coherent, gave her correct
home address and when asked if she was allergic to any parti-
cular drug, AB repl~ed "penic~111n". Ms. Davidson said that
AB was correct, as she, Ms Davidson, confirmed it by tele-
26
phone to Queen Street Mental Health Centre. She said that
she would not say that AB was confused
Ms Davidson's letter dated January 12, 1994 to Ms
Schliemann (Ex 6, p 13 a - b) indicates that on that date
Ms Davidson indicated that she left for Western Hospital at
about 3:30 am., and arrived at about 3:37 a.m., that she
left Western Hospital at about 5:15 a.m. and arrived at Wel-
lesley Hospital at about 5:20 a.m. If the times of departure
stated in her letter are correct, and her testimony that the
doctor arrived at around 4 40 p.m. is correct, the doctor's
arrival was approximately 35 minutes before their departure.
Ms Davidson testified that the doctor arrived at Toron-
to Western, ordered intravenous morphine, and it was then ad-
ministered She said that he also ordered that AB be cathe-
terized, which, she said, she had already suggested and the
staff had ignored. He ordered another litre of intravenous
fluids and arranged with Wellesley Hospital that AB be trans-
ferred there. She accompanied AB to Wellesley Hospital, han-
ded her over to the Burn Unit, left, and returned to the Cen-
tre at about 6 a m
Ms. Davidson testified that on her return to the Centre
she went to the nursing station and asked the grievor if
there was anything she could do at that time. She said that
the grievor asked her to write the fire report. She told the
grievor that she would write the report but would not sign
it, because she did not know what went on, and told her that
that if she, Ms Davidson wrote it, she, the grievor, would
have to sign it Ms. Davidson said that the grievor then
told her what to say, that she wrote what the grievor said,
and that the grievor signed what she wrote. She said that
the grievor appeared quite anxious to her, that the grievor
"had a whole pile of papers on top of the desk and was writ-
ing and ripping up and throwing them in the garbage and kind
of running and basically "
. .
In cross-examination Ms Davidson said that she thought
the report the grievor asked her to write was a "fire inci-
27
dent report" She then said she did not recall which kind of
report. She said that Ms Wright did not say anything else
to her, that she was busy charting She said that she was
doing a 24-hour report, patient charting She then said that
she did not specifically see what the grievor was writing.
When asked whether the grievor told her that she was under a
deadline, Ms Davidson recalled that the grievor told her she
had to finish the report for the nursing office.
When asked whether Ms. wright told her what happened in
the fire, Ms. Davidson replied "not at that time". She tes-
tified that on their way out of a ward meeting "we" had "that
morning", the grievor told her that she was doing progress
notes in the nursing station, that she heard a scream or a
noise corning from the North pod so she went there and on rea-
ching there, she opened the door, she could hear sounds from
AB's room, opened the door, saw AB in flames, told her to
corne out, AB stared at her and didn't move, so she left and
got Mr. Cianfrogna. Later in her evidence Ms Davidson said
that "on the same morning of the fire on [their] way out",
the grievor told her that she charted, now that her mind was
clear, inaccurately. She said that when she asked her what
part, the grievor told her that it was the area which men-
tioned the patient being removed, that she thought she had
charted that she had removed the patient and asked Mr Cian-
frogna to get a wet blanket, but that was not actually what
she recalled happened. Ms. Davidson said that she told the
grievor that she had better call the Head Nurse and explain
to him what she was telling her, and ask whether she could
make some adjustments to her documentation to reflect what
she was saying.
Ms. Davidson testified that Ms. Schliemann asked her to
write an account of events from midnight to the time of the
fire. She identified a typewritten letter to Ms. Schliemann
dated January 12, 1994 (Ex 6, P 13 a - b) as her written
account. In cross-examination she agreed that her letter was
"a full account of her actions" She said that her words
28
"assisted where necessary" after her return to the Centre
were intended to cover her having filled out a report She
said that she "felt this covered it".
Ms. Davidson testified in chief that she had been aware
that the fire incident was being investigated She said that
Mr. Majeed told her to meet with "two internal investigators
the following morning", Mr. Sloot and Mr LaRose, and that
she met with them the morning after she was advised by Mr.
Majeed to do so. She said that they told her it was just an
informal meeting, for gathering information, and not to lay
blame on anybody. She agreed that they asked her questions.
She was asked whether Ex 6, p 12, Mr. Sloot's and Mr. La-
Rose's typed statement of their interview with her, was an
accurate statement of her interview with them. It states:
Ms. Davidson stated that she had been on her sche-
duled break in the nurses' lounge when she heard
the fire alarm sound and the P A announcement
"Code Red Unit 1" She entered the unit and saw
some smoke in the north pod area. She heard Sandra
yelling "move, move - get up, get-up" . F. Davidson
entered the west hallway of the north pod and saw
Sandra struggling with a patient near A.B. 's room
Florence "took over" for Sandra and removed the
patient from the area. There were patients linger-
ing around the "blue desk" next to the nursing sta-
tion Florence directed them into the dining room.
She remalned there, calming the patients until Len
came and he took over. She entered the ward area
and Sandra asked her to call for an ambulance. One
of the firefighters stated that they had already
done so Florence then went to the nursing station
and began to prepare transfer documents. Mrs.
O'Hara stated that Florence was to escort A.B. in
the Ambulance to the hospital which left around
0300 hours
Ms. Davidson testified that the above was "not entirely accu-
rate" . She said that she had told the investigators that she
left with the ambulance at 3:30 and that their statement
indicates that she said 0300. She said that she did not tell
them that she took over a patient near AB's room She said
she told them that she went to the west hallway and that she
was already on the ward when the Code Red was announced She
..
29
said she had never seen the above statement before She said
that Mr. LaRose and Mr Sloot were taking notes during the
interview and did not review their notes with her at the end
of the discussion.
December 14, 1993 after 7 a.m.:
Ms Kutty testified that she came to work the morning
after the fire and learned what had happened in a 5 to 10
minute conversation with the grievor. She took no notes of
that conversation. She said that there had been "no mention
of" who had taken care of AB and that two days later she
learned that "it had not been handled in the manner it had
been reported". Ms. Kutty said that on that morning she con-
cluded that the situation was managed appropriately, and that
the patient received proper attention and care.
Ms Kutty was shown the memo of Night Nursing Coordinatr
JoAnn O'Hara (Ex. 3) and agreed that it was consistent with
what the grievor told her that morning. Ms. O'Hara's memo
states "no one was severely burned". As Ms O'Hara did not
testify and as Ms. Kutty neither attributed that statement to
the grievor nor demonstrated an independent recall of the
grievor having told her that no one was severely burned, the
panel is unable to conclude that the grievor made that state-
ment, and consequently, the extent to which Ms. O'Hara's memo
accurately reflects what the grievor told Ms Kutty
Shameer Majeed, the Head Nurse on unit 1, has worked at
Queen Street Mental Health Centre for approximately 6 years
as of March, 1995. He first came to unit 1 in September of
1992. He testified that he reported to work at 7 a m on
December 14, 1993, and that Ms Kutty asked him to ask those
involved to write about their involvement He said that he
asked the grievor to make a note, and that he did not know if
she did, because she was not to give it to him. He said that
the grievor "said at the time that she stands by the report
that is in the patient's file". When asked to clarify, he
30
said that he was referring to the documentation the grievor
had made in "the patient's file". Mr Majeed was asked whe-
ther the grievor's Memorandum dated December 14, 1993 (Ex 6,
P 9b), "accords with what is in the patient's file". He re-
plied "yes". The evidence did not clarify the occasion upon
which the grievor said that she "[stood] by the report that
is in the patient's file" or establish whether those were the
grievor's words.
In cross-examination, Mr. Majeed said that the grievor's
handwritten Memo (Ex 6, p 9b) is not the report on AB's
file. He agreed with the suggestion that the grievor would
have written in the patient's file and would then have writ-
ten this. He said "what is in the patient's file is clinical
notes". When asked whether the grievor wrote the Memorandum
(Ex. 6, p 9b) when he asked staff to write what was fresh in
their minds, he replied "I don't know" and agreed that the
Memorandum was addressed to the Administrator
Inquiries re Amending the Record:
Mr. Majeed testified that "quite a few days after the
fire" the grievor asked him if she could change what was in
the file He said that he "told her no, but she could make a
statement, a late entry" and that she never gave one. He
said that he had looked at the patient's file last Friday and
said that there isn't one. In cross-examination Mr Majeed
said that the grievor told him she wanted to make changes to
her report He denied the suggestion that when she told him
that, he said he that he would have to check and get back to
her and that he did not get back to her He said that he
stood by his eVldence-in-chief on this subject.
Ms Albrecht testified in cross-examination that she
could not quite honestly recall whether she was told that the
grievor had asked Mr. Majeed about amending her report a few
days after the fire
31
The grievor was reminded that she had referred in evi-
dence to the documentation in the patient's file and had in-
dlcated that there were omissions, and was asked whether she
had asked to correct them She said that "a couple of days
after the fire", then "it wasn't too many days after the
fire" , then "Wednesday or Thursday", Mr. Majeed called her
house and told her that there was a stress management counsel
group at the hospital to whom staff could speak, owing to the
stress of the event She said that she and Florence saw a
stress management person and that Mr. Cianfrogna did not.
She said that while she speaking to Mr. Majeed on that occa-
sion she told him about her charting and what she "wanted to
add basically to the charting". She said that she had not
included that Ms. O'Hara had found the blue lighter She
said that she told Mr. MaJeed that even though she was func-
tioning at the time she wrote the report, she was actually in
a great deal of shock, and said that she told him that she
had written in AB's chart that she had pulled the patient
from the room, that "it wasn't" her, that she had panicked
and went to get Mr. Cianfrogna, who had pulled her out. She
testified that Mr. Majeed told her that it wasn't up to him
to authorize that, and that he would speak to Ms. Kutty and
get back to her, and that Mr Majeed did not get back to her.
She said that she had asked Mr Majeed more than once on the
dayshift about the charting because she had not heard from
him further while she was at home and had not received a res-
ponse from him
In cross-examination the grievor was told that Mr. Ma-
jeed had testified that he had told her that she could not
remove what she had written, but that she could add to it
She denied that Mr Majeed had said that to her. When asked
to explain why he had testified that he had said that, she
said she could not explain She denied the suggestion that
she had called Mr Shameer, and re-stated that he had called
her. She said his call occurred several days after the inci-
dent, and that he had called regarding stress management She
32
acknowledged that she had thought about the false information
in the patient file before he called She said that she did
not sleep when she got home that Tuesday, and that on Tuesday
afternoon "events came to me in the sequence they occurred"
She then said that Mr Majeed called her either Wednesday or
Thursday. She acknowledged that she did not call Mr. Shameer
or attempt to change the contents of the patlent's file be-
fore he called her She acknowledged having said that she
was concerned about the false information on the file She
acknowledged that she did not contact Ms Kutty when she did
not hear back from Mr. Majeed, that she continued to work on
the same ward, that she had open access to patient charts,
and that she did not insert an addendum. In re-examination,
the grievor said that it would not have been appropriate to
add to the charts after-the-fact of her initial entries.
When asked in re-examination why she did not mention UG
in her second Statement (Ex. 6, p9c-e), the grievor said
that she "didn't see " She said that she just put that
. .
she "was alerted". She said that in her clinical notes she
had stated that "UG had notified" her.
The panel indicated at the hearing that it understood
that in a hospital setting staff can draw a line through
their own entries in clinical notes, etc , on patient charts,
if they are in error, and date and initial the line, and, ln
the margin or in the space between the lines that have been
drawn through the erroneous entry, write the correction. The
grievor replied that she "did not understand the amendment
procedure to be a possibility". On consent, a copy of the
pages from the Centre's Nursing Manual titled "Patient Care
Documentation" (Ex 24) was shown to her She said that she
is not given a copy of all the policies when she is hired,
but that there is a policy and procedure manual available to
nursing staff She acknowledged that it was her responsibi-
lity to be familiar with it. Her attention was drawn to the
following:
33
13. Entries written in error should be corrected
in the following manner
- draw one line through the error
- print ERROR above it
- Initial
Information recorded in error should never be
erased or removed. This lncludes the use of
correction fluid.
She replied that if it was from the Procedure Manual, it was
the Centre's policy.
Florence Davidson was shown a copy of Ex 24 She said
that she had not seen it before Paragraph 13 was pointed
out to her, and she was asked whether she was aware of that
policy. She replied "I wasn't really aware of it from this
policy but I know from previous nursing knowledge that this
is the way to correct " When asked, in view of her nurs-
. . ing knowledge, why she had referred the grievor to Mr Ma-
jeed, she said that the grievor could not erase, and she re-
ferred her so that "she could be afforded an opportunity to
correct" .
In cross-examination, Ms Davidson confirmed that the
policy and procedure manual was on the ward. She said she
was not sure of the contents She said she "did not know if
there are any supernurses who do" She agreed that the poli-
cy re corrections conforms to the nurslng standards of prac-
tice. She confirmed that she told the grievor to speak with
Mr. Majeed. She said that the grievor appeared very nervous.
When asked why she had said the grievor should be afforded an
opportunity to correct, Ms. Davidson replied that they had
"been through enough", that the grievor "could have an oppor-
tunity to change it, but couldn't erase it" She said "I
knew she could write what was correct but several people
would've charted subsequently and she couldn't rechart with-
out informing the Head Nurse" She agreed that the grievor
was clear at that point that she had written something wrong
onto the chart and said so. She added that if the grievor
had brought this to her attention while they were on the
ward, she would probably have told her to cross it out and
34
put in the correct entry at that time She said that from
the stress of the meeting, she felt that the grievor did not
want to go back on the ward and do it then, so she did not
suggest that to her. When it was suggested to Ms. Davidson
that the grievor could have corrected it on the next shift,
Ms. Davidson replied that that was what she had said, but
that she also said that the grievor could not do it wlthout
informing him. She then agreed that she only told the grie-
vor to speak to Mr. Majeed She said that she "didn't know
the circumstances that would enable the correction." She
said that they could change records where it is a simple
matter.
The Decision to Conduct an Investigation:
Ms. Kutty testified that she learned AB's condition from
Wellesley Hospital, and that at that time she learned how
critical AB's condition was, and based on information from UG
and AB's condition, she verbally recommended an investigation
to Assistant Admininistrator Gisela Albrecht, before January,
1994. She said that her conclusion that the situatlon was
managed appropriately and that the patient received proper
attention and care changed because "after a couple of days
later I learned from another patient lUG] that in her obser-
vation the situation was not handled the way I received the
information" She then said that her first source of infor-
mation was not UG, but rather, Night Nurse JoAnn O'Hara. She
identified a Memorandum dated December 18, 1993, (Ex. 4, and
pp. 18a - b, Ex. 6) which she advised was written by Ms.
O'Hara to Ms Schliemann In the Memo Ms O'Hara advised Ms.
Schliemann of her understanding of an "off the ward" conver-
sation between patient UG and R N. Isabel Zymantas
Ms. Kutty testified that she spoke to UG herself. She
said that UG "informed" her "in her own way". She said that
UG said she heard noise from AB's room, reported it to the
grievor at the nursing station, that the grievor was reading
35
a magazine, that UG didn't tell her the name of the magazine.
When asked whether UG specified the noise, Ms Kutty said
that UG used the word "screaming". She said that UG told her
that at the grievor's request, she went back to bed, that she
came out of her room a few minutes later because screaming
was coming from AB's room, that she tried to open AB's door,
but the handle was "really hot", and that she went back to
the nursing station to report "her finding", which, Ms Kutty
said, was "smoke coming out or she smelled smoke". Ms Kutty
said that UG told her that the grievor followed her, UG, to
AB's room and opened the door, that they both saw AB on fire,
that the grievor left the patient and went to the treatment
room to call Len Cianfrogna, PNA, that UG saw Len remove AB
and saw AB walking around naked, that UG also tried to help
the grievor remove other patients, during which time she saw
AB walking around naked.
In cross-examination, Ms. Kutty acknowledged that UG's
concerns were about the way AB was handled by everybody She
said that "in particularly making reference that she was left
in the room" she thought UG was making reference to Sandra
Wright. She said that she recalled that UG's diagnosis was
schizophrenia, but that she was not sure. She said that she
met with UG and Don Ross, the Nurse-in-Charge. She said that
she took notes at that meeting with UG, which, she said, were
in her letter to Ms. Albrecht (Ex. 5) .
In her memo of January 26, 1994 (Ex 5) to Ms. Albrecht,
Ms. Kutty wrote that UG said she heard yelling and screaming
from AB's room, and reported it to the grievor, who was read-
ing a magazine in the nursing station and told her to go back
to bed and she'd look into it In the context of reviewing
her memo, Ms. Kutty said that UG wasn't satisfied with the
grievor's response to her and went to AB's room She then
said UG tried the door handle, which was very hot, and went
to the grievor and told her about her findings.
Ms. Kutty said that she did not meet with the grievor
after meeting with UG and that she did not feel a meeting
36
with the grievor was needed at that point She said that she
did not tell the grievor she had recommended an investigation
be carried out She acknowledged that the grievor had a
right to know that UG had concerns about being on her unit.
Ms. Kutty later acknowledged that not having known how
critical AB's condition was from first learning of the inci-
dent on December 14, 1993 had impacted in part on her deci-
sion to investigate the incident. She said that AB's condi-
tion was very critical and that she felt they needed to find
out if things were done properly and whether anything needed
to be done to prevent such an occurrence in the future
Mr. Majeed acknowledged in re-examination that he had
attended a meeting with UG He was asked to refer to Ex 6,
pp 7a - b, Mr. LaRose's handwritten note of Mr LaRose's and
Mr. Sloot's interview with UG, and was asked whether it was
"consistent with what lUG] told him" and he replied "yes".
When asked who had asked for an investigation, Ms Al-
brecht said that she suggested it to the Administrator and
that AB's family had requested an investigation. She said
that quite frequently, with other occurrences, the family of
the patient requests it. She said that the Centre had not
had a fire like that previously.
Mr. Sloot said that Gisela Albrecht requested Bob LaRose
and him to do an investigation. He said in cross-examination
that investigations of the type he and Mr. LaRose undertook
in this case are not required after every fire, and that it
depended upon the severity of the fire. He said that the
"person in charge" prepares a fire incident report which is
reviewed by the Chief Engineer/Fire Marshal for the Hospital,
who determines whether a further investigation is required.
He said that in this case the person in charge would have
been the charge nurse, Ms. wright, the grievor He acknow-
ledged that the grievor prepared a fire incident report which
went to the Fire Marshal, and that her fire incident report
is not part of his and Mr. LaRose's Fire Investigation Report
(Ex. 6) . He then said that Centre Administrator Allison Stu-
37
art had requested the investigation, and that her request had
been confirmed by Ms. Albrecht in writing He said that the
request for the investigation was "totally separate from the
fire incident report". When asked whether the Fire Marshal
indicated to him or anyone else that a further investigation
was required, he replied "not to my knowledge"
Manager of Support Services Gerry Sloot and Occupational
Therapy Supervisor Bob LaRose authored a Fire Investigation
Report dated February 18, 1994 (Ex. 6) . The Office of the
Fire Marshal of the Mlnistry of the Solicitor General and
Correctional Services also prepared a Fire Investigation Re-
port (Ex 14), which indicates the date and time of the scene
examination as 7:10 on December 14, 1993, and bears a submis-
sion date of January 13, 1994 The investigator's signature
on Ex 14 is dated June 15, 1994, and the supervisor's ini-
tials are dated June 21, 1994. The date the Centre received
this document was not established.
Disclosure to staff of the Decision to Investigate
Ms. Kutty said that when the decision is taken to inves-
tigate a matter, the Centre's usual practice is that the Head
Nurse will announce to his or her staff that an investigation
will be held She said that Gerry Sloot had asked her to put
the request in writing after the investigation had started
Head Nurse Shameer Majeed said that Ms. Kutty informed
him that there would be an investigation He added that the
patient AB's relatives had requested one, as well. He later
agreed that fires are normally investigated in any case, re-
gardless of whether patients' relatives request an investiga-
tion. He could not recall whether he had discussed the re-
quest of the patient's relatives or the fact that Ms. Kutty
had told him there would be an investigation with staff. He
said that he might have He said that these matters were
also discussed informally He said that he was unaware as to
38
whether the disclosure to staff of the fact that an investi-
gation would be held in this case followed standard practlce.
In cross-examination, Mr. Majeed said that staff had
told him that he announced the investigation at one of the
meetings with the patients, i.e at a staff-patient meeting
after the fire. He said he was not involved in any way in
the investlgation, and that he had not seen the Sloot/LaRose
Report (Ex. 6) before the day he was giving evidence in this
proceeding. He said that he was "involved" in the investiga-
tion because in order to make staff available to them, two
investigators had contacted him to release staff from their
duties. When asked whether he had discussed the fire incident
or the report with staff, Mr. Majeed said that he was in one
meeting with "one patient" regarding "the incident". He
agreed that the patient was UG.
The grievor testified that she was advised that there
would be an investigation when Ms Schliemann asked her for
an account of what she and her staff were doing from 12
midnight to 3 a.m.
The Sloot/LaRose Investlgation:
The Authors and their Backgrounds:
Gerry Sloot is the Manager of Support Services at the
Centre. He has worked at the Centre since 1986, and reports
to the Assistant Administrator of Support Services. He is
responsible for security, communication, housekeeping, plant
maintenance and operations, nutrition services and occupatlo-
nal health and safety. His responsibilities also include
teaching WHMIS and fire safety and training lectures. He had
done 10 fire investigations at the Centre and 8 when he was
with Metro Toronto Housing Authority.
The other author of the report, Bob LaRose, is an Occu-
pational Therapy Supervisor. He had been involved in fire
evacuations previously and had written some fire incident
reports, but had not been involved in fire investigations
39
previously. He did not indicate that he had any any training
or education in conducting fire investigations
Methodology & Duration of the Investigation:
Mr. Sloot said that he and Mr. LaRose followed the pro-
cedure "as it is set out at page 3 of the Report" (Ex. 6 ) and
that in addition they received the Fire Marshal's report (Ex.
14) . He described the process of interviewing, note-taking
and ensuring the accuracy of their notes as follows
-either he or Mr. LaRose took notes
-they would read the notes back to the interviewee
"to make sure the flow was the same"
-in some cases changes were made regarding the
order of events
-the typed notes of the interviews were "formulat-
ed" from the notes of the interviews
Mr. Sloot then said that either he or Mr LaRose took notes
at each interview, then transcribed the notes into another
note, and that the second note was typed. In re-examination
he said that the interviewers' notes are "reiterated to" the
interviewee, and that then he and Mr. LaRose "go down and do
a written composition of what was said".
Mr. Sloot advised that the investigation started on Ja-
nuary 11, 1994 and was finished approximately 3 weeks later.
Later in his evidence he said that the last interview took
place on January 27, 1994 In cross-examination he said that
the interviews were completed by January 21, 1994 The memo
to Ms. Albrecht which apparently accompanied the delivery of
the report to her is dated February 18, 1994.
Mr. Sloot said that he was present at the interview on
January 11, 1994 with UG, but that he was not present when
Bob LaRose went back to UG with his, i e. Mr. LaRose's, hand-
written re-statement of UG's verbal statement given on Janu-
ary 11, 1994, which she signed in Mr. LaRose's presence. He
did not know the date upon which Mr LaRose saw UG the second
time and obtained her signature on his re-statement (Ex. 6, p
40
7a & b) Mr Sloot did not state who took the notes of the
January 11, 1994 interview with UG He later said that notes
of the interview with UG had not been re-done in a typed for-
mat because UG had slgned the notes prepared by Mr. LaRose.
Mr. Sloot said in cross-examination that Mr. Cianfrog-
na's handwritten statement (Ex 6, p 11 a - c) was part of
the information he received at the beginning of the investi-
gation and agreed that he had read Mr. Cianfrogna's handwrit-
ten statement (Ex. 6, p 11 a - c) prior to interviewing any-
one, and before interviewing the grievor. He said that be-
fore meeting with the grievor he had read both Mr. Cianfrog-
na's written statement and the grievor's first statement (Ex
6, p 8).
When asked whether he received any documents to review
before beginning any interviews, Mr. LaRose said that he re-
ceived a copy of a memo from JoAnn O'Hara to Centre Admini-
strator Allison Stuart dated 14 Dec 93 (Ex 6, p 17a). He
said he could not recall having received any other documents
prior to conducting the interviews.
Mr. LaRose said that he had met with UG twice, and that
the second meeting was planned "to confirm the correctness of
our notes". He said that Mr. Sloot was with him the first
time he met with UG He identified Ex. 6, p 7a - b, as a
note in his own handwriting based on his initial interview
with UG. He said he read p 7a back to UG slowly, and that
she made a correction. He said that he made point notes
while intervlewing UG, and that he did not bring them with
him to the hearing
Mr. Sloot's Interview with Mr. Cianfrogna:
Mr. Sloot testified that he interviewed Mr. Cianfrogna
alone. He identified Ex 6, pp 10 a & b as the typewritten
notes of his interview with Mr. Cianfrogna. In cross-exami-
nation he said that he believed Mr. Cianfrogna wrote his
handwritten statement (Ex. 6, pp 11 a - c) on December 14,
1993. He acknowledged that Ex 6, pp 11 a - c were not dat-
41
ed, that those pages were part of the information he got at
the beginning of the investigation and agreed that he had re-
viewed Mr Cianfrogna's handwritten statement prior to meet-
ing with anyone, and that he read it prior to meetlng with
the grievor.
The evidence did not disclose the date of Mr Sloot's
interview with Mr. Cianfrogna or when it occurred in relation
to when the other interviews were conducted Mr Cianfrogna
said that he wrote his statement before Mr Sloot interviewed
him and that he could not remember the date of the interview,
except that it was in January. Counsel for the employer ad-
vised that his copy of Mr. Cianfrogna's report indicated a
date of 8 January 94, but that the date had not been photoco-
pied in Ex. 6, pp 11 a-c. The panel notes that January 8,
1994 fell on a Saturday. Mr. Cianfrogna stated that he wrote
an incident report, Ex. 6, p. 11a-c, "some time" in January,
1994, at the request of Ms. Schliemann, Acting Nursing
Coordinator.
Mr. Cianfrogna said that he had not seen p 10 a - b of
Ex. 6 (Mr Sloot's typed note of his interview with him) be-
fore March 13, 1995, when he was giving his evidence. He was
asked to review it and was asked whether it was an accurate
reflection of his interview. He replied "somewhat". When
asked what he meant, he said "it's basically accurate".
The Interview with the grievor:
Mr Sloot said that he and Mr. LaRose interviewed the
grievor once Mr. Sloot agreed in chief that he read back
his notes at the conclusion of the interview and agreed that
he ensured that the grievor knew what he wrote down He then
said that Bob LaRose took the intervlew notes Mr. Sloot's
attention was drawn in chief to the sentence "She pulled the
patient out of the room, closed the door and yelled for Len
to get a wet blanket" in Ex. 6, page 8, Mr. LaRose's typed
note of their interview with the grievor. He was then asked
whether the grievor specifically told him she pulled the pa-
42
tient out of the room, and he replied "yes" In cross-exami-
nation, Mr. Sloot said that Ex 6, pp 8 was not a typed ver-
sion of Mr. LaRose's original notes of his interview with the
grievor. He handed the grievor's representative some hand-
written notes which he said "came from Bob's notes", and said
that they were not the notes Mr LaRose took at the interview
and that they were written "right after the interview" He
said he reviewed those notes. He later said that he and Mr.
LaRose did the typewritten note of their interview with the
grievor (Ex. 6, page 8) "together" . Mr Sloot was asked in
re-examination whether Mr. LaRose's hand-written notes were
identical to the typewritten notes (Ex. 6, p 8) of the inter-
view with the grievor He said "the written composition is
the same as the typed statement, maybe some grammar errors
were changed".
Mr. Sloot said that he received the grievor's handwrit-
ten Memorandum (EX. 6, P 9b, dated 14 Dec 93) prior to Janua-
ry 11, 1994 when they started the investigation, and that he
reviewed it before starting the investigation. In cross-exa-
mination, he said that he and Mr. LaRose got the information
in Ex 6, page 8 regarding the corridors "based on the infor-
mation from UG".
When told that the grievor would testify that she told
him that she panicked when she saw AB in flames, Mr. Sloot
replied "I do not recall that at all". He said that he did
not put Mr. Cianfrogna's statement that he pulled the patient
from the room to the grievor when he interviewed her He
said that he and Mr. LaRose "just asked her to go through the
steps that she took from the, that she took at the time of
the incident"
Mr. Sloot said in cross-examination "it is not necessa-
rily practise to have union representation at these inter-
views" . When asked whether he advises employees that they
can have union representation at them, he replied "not in
this one". He said that it would depend on "the nature of
the process" and said "this was just a fire investigation".
43
Mr. LaRose agreed with the suggestion that he received a
copy of the grievor's Statement (Ex 6, pp 9c - e) after hav-
ing interviewed her. He said that he did not consider meet-
ing with her after having received it. When it was put to
him that it would be her evidence that she told him and Mr
LaRose that she panicked during the fire and he was asked
whether he recalled her saying that, he replied "no"
In the context of indicating that the only document he
had received prior to conducting the interviews was Ms. O'Ha-
ra 's Memo (Ex. 6, p 17a), Mr LaRose said that he had taken
point notes during the interview with the grievor. He was
asked in cross-examination whether he reviewed his point
notes with the grievor and replied "no; I do recall Gerry and
myself going through the occurrence". Mr. LaRose was asked
whether Ex. 6, page 8 had been based on his point notes, and
he replied that immediately following the interview he and
Mr. Sloot met and "put together both what occurred and made a
written copy and that was what was to be typed".
Mr. LaRose confirmed that he was present during an in-
terview with the grievor He agreed that point form notes
were taken. He said that he had a set of point form notes
and that he believed Mr. Sloot had a set of notes as well.
He said he did not bring his notes to the hearing. When
asked in chief whether Ex 6, page 8, a typed statement of
notes from an interview with the grievor accurately reflects
what the grievor told him, he replied "yes" Mr. LaRose's
attention was drawn to the sentence "She pulled the patient
out of the room, closed the door and yelled for Len to get a
wet blanket", and he was asked whether the grievor specifi-
cally told him she pulled the patient out of the room and he
replied "yes"
The grievor testified that the investigation team inter-
viewed her on the first of the two 12-hour dayshifts that she
worked in January, 1994 She said that she told Mr. Sloot
and Mr. LaRose "exactly what I told you" i.e the arbitration
panel. She said that both Mr. Sloot and Mr. LaRose took
44
notes during the interview She said that she did not know
whether they had her "statement", as they did not show it to
her She did not indicate at that point when or to whom she
submitted her second Statement (Ex. 6, p 9c - e)
The grievor testified that she was with Mr. Sloot and
Mr. LaRose a maximum of 20 minutes. She said that the inter-
view did not take the entire 20 minutes, and that she and the
investigators talked "for a while" after the interview. She
said that they told her that the purpose of the investigation
was not to lay blame about AB smoking, and that Mr. LaRose
stated that on his floor none of the patients are "permitted
cigarettes" and that they must come to the nursing station
for them. She said that they told her that if they had any
more questions they would meet with her again
The grievor testified that the typewritten note (Ex 6,
p 8) was not an accurate reflection of what she had said in
the interview She specified that on line 2, reference to a
lO-min. check on a patient should have been a IS-min. check.
Referring to the following passage in the interview note:
lUG] who had been in the smoking lounge earlier
with a co-patient, came to the nursing station at
approx 0300 hrs and said - "Annie's screaming, I
think she's having a nightmare". Sandra said
"She'll be alright, I'll check on her in a minute".
It was too soon to do her rounds.
she said that she did not tell the investigators that UG was
in the smoking lounge, and did not tell them that she came to
the nursing station In cross-examination she acknowledged
that AB did spend time in the smoking lounge She said that
from 11 p.m. to 6 a.m. the lights on the ward are turned off
and emergency lights along the corridors are on, that the
nursing station has 3 windows which face three angles or di-
rections and that she was sitting in the station at the desk
that faces the window facing toward the South Pod. She said
she first saw UG to her right, at the door to the nursing
station, and that she was unable to tell where she had come
from. She said that she did not tell the interviewers where
45
UG had come from, because she did not know where she had come
from
The grievor said that she obtained the information that
the Code Red was called at 2:55 p m. "from switchboard". She
said that she told the interviewers that UG came to the sta-
tion just before 3 a.m., shortly before she was going to do
her 3 a.m. rounds
The grievor testified with regard to the words "She'll
be alright, I'll check on her in a minute" that when UG told
her that she thought AB was having a nightmare, that she said
"thank you" to UG and told her that she would go and check.
She said that she did not give UG a time She acknowledged
that she told Mr Sloot that she told UG that AB would be
alright. She denied having said to the interviewers that it
was too soon to do her rounds.
The grievor said that she told the interviewers that she
panicked, and that she went to get Mr. Cianfrogna, and that
the interviewers did not state that she had said that. with
respect to the statement,
She pulled the patient out of the room, closed the
door and yelled for Len to get a wet blanket. Len
was in the treatment room at the time. He got a
wet blanket and wrapped it around A.B. (Ex. 6, P 8)
the grievor denied having said to the investigators that she
took the patient from the room, or that Len got a wet blanket
and wrapped it around AB. She said that she told the inves-
tigators that when she saw the flames she panicked and ran to
the treatment room to get Mr Cianfrogna and that she told
them that she gave Mr Cianfrogna a directive to get a wet
blanket and tend to AB. She sald that the investigators did
not discuss her written statements with her and did not read
their notes back to her, and that she did not meet with them
again At the end of her meeting with them she did not
expect any other action to take place
In cross-examination, when asked whether she had any
explanation as to why Mr Sloot and Mr. LaRose testified that
46
she had told them that she had pulled AB out of the room, the
grievor replied that she did not when asked later whether
she had any explanation as to where Mr Sloot and Mr LaRose
would have obtained the information contalned ln thelr inter-
view notes, she said she did not have an explanation. When
asked why they would have glaringly put in inaccurate infor-
mation, she said that she was unable to say why When asked
whether they gave false evidence and whether they were inac-
curate in their report, she said "yes". When asked whether,
in her opinion, they were lying or were mistaken, she said
that they were mistaken. She pointed out that their inter-
view note (Ex 6, p 8) indicates that Mr Cianfrogna gave AB
a wet blanket, that that had not been Mr Cianfrogna's evi-
dence, and said that she did not say that
During cross-examination the grievor said that she was
the first person interviewed and that Mr. Cianfrogna was in-
terviewed after she was. She agreed that the investigators'
notes of their interview with Mr. Cianfrogna were correct,
but that their notes of their interview with her were not.
She confirmed that she had said that she prepared her second
statement (Ex 6, p 9c - e) before her interview with Mr.
Sloot and Mr. LaRose. She acknowledged that in her second
statement, she had not mentioned UG. She agreed that Ex. 6,
p 9c - e, was supposed to set the record straight.
Mr. Sloot's Opinions:
Mr. Sloot was asked in chief what conclusion he drew.
He said that he concluded that the grievor went down the
right-hand corridor, opened the door, saw the patient was
aflame, ran back up the right-hand corridor and alerted Mr
Cianfrogna. He said that he concluded that Mr Cianfrogna
went down to the patient's room, pulled her out of the room,
and walked her up the left-hand corridor. He said that he
concluded that the fire alarm had been activated by the heat
sensor in the patient's room and that it had sounded when the
grievor had initially gone down the right-hand corridor to
47
the patient's room. He said he made those conclusions based
on the statements of UG and Len Cianfrogna.
Mr. Sloot was asked in chief why he made a finding con-
trary to the typed statement of the grievor's alleged state-
ment in her interview. He said he and Mr. LaRose interviewed
the grievor on January 11, 1994 and that he received her
"Statement" (Ex 6, pp. 9 c-e) "some time after that" and
said that he could not recall when, and that it had been
forwarded by Ms. Albrecht. He said that he received it be-
fore the conclusion of interviews, and at that point said the
interviews were concluded on January 27, 1994.
When asked in chief whether he had reviewed the grie-
vor's handwritten statements in the course of his investiga-
tion, Mr Sloot said yes. When he was asked whether they
were consistent, he said no. In cross-examination, when ask-
ed whether he had taken Ms. Wright's second Statement into
account in coming to his opinions and conclusions, he replied
that he had taken it into account, and said that he had done
so only to the extent that it was inconsistent with her Memo
and their interview with her. Toward the end of his evidence
in chief, Mr Sloot was asked why he had made no conclusions
as part of his investigation. He referred to the mandate on
page 2 of Ex. 6, and noted the words "to gather and organize
information"
In cross-examination, when Mr. Sloot was asked to agree
that he wasn't instructed to form conclusions, he replied
"not by the mandate". He agreed that the conclusions he drew
in chief were his "opinions", adding "based on what I had".
He agreed with the suggestion that the fire alarm was activa-
ted by the time the grievor arrived at AB's room and that the
occurrence report indicated that the fire alarm had been
activated at about 2:55 a.m.
In cross-examination, in the context of acknowledging
that Ms. Albrecht was not a member of the investigation team,
and that he had received a Memo from her, dated January 27,
1994, (Ex. 6, P 23) regarding a conversation she had with UG,
48
Mr. Sloot said "our" interviews, by which the panel under-
stood he meant his and Mr. LaRose's, were concluded January
21, 1994 He agreed that Ms Albrecht sent Ex. 6, p 23 after
his and Mr LaRose's investigation was concluded He did not
directly indicate the date the investigation was concluded,
and agreed that the Report was issued on February 18, 1994.
Mr. Sloot later agreed that the grievor's second Statement
was done some time after the January 11, 1994 interview. He
said that neither he nor Mr. LaRose requested the grievor's
second statement, and said that he "honestly couldn't tell"
why she had prepared it. He agreed that he just included it
in the Report because he had received it. He said he did not
consider meeting with the grievor a second time in view of
the inconsistencies between her Memorandum (Ex. 6, pp 9b)
and Statement (Ex. 6, 9c-e) .
Administration's Concerns after Receiving the Sloot/LaRose
Report (Ex. 6 ) :
Ms Kutty testified that the investigators' report rais-
ed the concerns that a) it indicated the patient was abandon-
ed, b) it took about over 40 minutes to get to general hospi-
tal and c) it said that the grievor said she responded to the
call immediately and also said that she was approached two
times before she responded She was asked to draw the
panel's attention to the contrast between Ex. 6, page 8, the
Sloot/LaRose typed note of the grievor's interview, which
indicates that the grievor said that she pulled the patient
out of the room, closed the door, and yelled for Len to get a
wet blanket, and that Len arrived and put it on the patient,
with Ex. 6, p 10a, the note of the interview with Len Cian-
frogna, which indicates that he stated that at approx. 0250
a.m. he heard Sandra callout that patient AB was on fire.
She said that she and Ms. Albrecht went through the Sloot/La-
Rose report (Ex 6 ) and became quite concerned about the in-
49
consistency and decided to have a meeting with the grievor
"to clarify the issues" for them.
Ms. Albrecht testified that after receiving the Fire
Investigation Report (the Sloot/LaRose report), between Feb-
ruary 18, 1994 and March 21, 1994, she would have discussed
it with Ms Stuart, Ms Kutty and a representative from human
resources. She also spoke to Mr Sloot and asked whether the
patient AB made any statement to the nurse or ambulance at-
tendants, as she understood she was still able to communicate
when she left the ward. She was unsure of the cause of the
fire and was unable to ascertain the cause. She agreed that
she was seeking to clarify some things from the report. She
agreed that she convened the March 21, 1994 meeting
When it was stated to Ms. Albrecht that Mr Sloot had
drawn no conclusions and made no findings, she replied that
she did not know his mandate. She offered that possibly Mr.
Sloot and Mr. LaRose drew no conclusions because they did not
have a nursing background.
Ms. Kutty said she believed the fire lasted 5 minutes,
based on a report from the fire dept. The Fire Marshal's
Fire Investigation Report (Ex. 14) indicates that the victim
"set herself on fire either by means of careless smoking or
igniting her clothing with open flame, most probably the blue
lighter located in the room". It concluded
The fire lasted for approximately 4-5 minutes
maximum Had the room been equipped with a smoke
alarm much earlier detection would have occurred.
.
Ms. Kutty testified that after a fire, it is the R N. 's
responsibility to assess the patient's condition, and deter-
mine whether a doctor's attention is needed, and if so, the
R N. is responsible to obtain those services. She said that
the report indicates that when Dr Harrison came to the floor
he was not aware of AB's condition In re-examination she
said that a PNA was not qualified to attend to a patient in
crisis, and that the patient should be attended by an R.N
50
She clarified that she was concerned that the grievor had
lost her priorities, because the PNA was qualified to and
should have done the evacuation of the patients, and that the
grievor should have attended to AB.
Ms. Kutty testified that she thought the grievor spoke
to Dr Harrison and asked him to see the patient. She said
that she understood that Dr Harrison had seen AB a few mi-
nutes after he arrived on the floor. She disputed that that
was "immediate". She said that she felt the grievor had
failed to discharge her responsibility as charge nurse to
call the ambulance; she understood that someone from the fire
department had placed the call. That understanding was sup-
ported by a statement in the Fire Marshal's report (Ex 14)
and confirmed by the grievor's and Ms. Davidson's evidence.
Ms. Kutty testified that there was a fire alarm in the
North Pod. She said that it can only be activated by a key,
which each staff person is issued, and that it cannot be
activated by breaking the glass.
Ms. Kutty said that from the time the fire started to
the time AB was sent to Toronto Western Hospital, 40 minutes
expired. Ms Davidson's testimony and her letter dated Jan
12, 1994 to Elke Schlienrnann ( sic) , (Ex 6, pp 13a & b) in-
dicated that the ambulance left the Centre at about 3:30 a.m.
Ms. Kutty said she was not aware that the grievor was
maintaining that she never said to the investigator that she
pulled the patient out of the room.
Invitation to the March 21, 1994 Meeting:
Ms. Kutty said that the grievor was sent a confidential
letter, dated March 11, 1994, (Ex 7 ) requesting her to at-
tend a meeting scheduled for Mar 21, 1994 to discuss "the
findings of the investigation" regarding the fire. It is
addressed to the grievor and states:
51
You are requested to attend a meeting to dis-
cuss the findings of the investigation regarding
the fire on unit 1-4 on December 14, 1993
The meeting has been scheduled for March 21,
1994, at 0900 hours in Room 1050, conference room,
Educational Services.
You have the option to have an O.P.S.E.U. rep-
resentative present at the meeting
Yours truly,
(Ms . ) Gisela Albrecht
Assistant Administrator, Nursing (A)
The grievor said she learned of the 21 March 94 meeting
on a weekend shift when at the direction of Nursing Coordina-
tor Arlene Randall she picked up a letter for her in the nur-
sing office, which she identified as Ex. 7 She later testi-
fied that she did not understand that the March 21, 1994 mee-
ting was a pre-disciplinary meeting. She said that she had
called Ms Kutty from Union Steward Danielle Larmand's office
and that Ms. Kutty had told her "no, it was just to discuss
the findings of the fire"
In cross-examination the grievor acknowledged that the
letter (Ex. 7 ) indicated that she had the option to have an
OPSEU representative present at the meeting, and that Ms.
Larmand had attended the meeting with her.
The March 21. 1994 Meeting:
Ms. Kutty characterized the March 21 meeting with the
grievor as a "pre-disciplinary" meeting. Ms. Albrecht testi-
fied that she did not consider that meeting a "pre-discipli-
nary" meeting, just an "investigatory" meeting.
Ms. Kutty testified that Head Nurse Shameer Majeed was
not at the March 21 meeting. Mr Majeed testified that he
was at that meeting.
Ms. Kutty said that she took no notes of the March 21
meeting, but that either Ms. Albrecht or Mahoney did She
described the grievor as "evasive" at the meeting She said
52
that by "evasive" she meant "by neither agreeing nor disag-
reeing when asked a specific question". No examples of spe-
cific questions and (non)answers were given She denied that
the grievor said that she panicked and was not thinking
clearly when she left the patient.
Ms Kutty testified that she had read the investigator's
report by the time of the March 21 meeting. She said that
she agreed with Ms Albrecht's statement in her memo (Ex. 8)
that the grievor "was unable to explain why she did not come
forward to correct her statement when the investigation was
conducted" .
When asked whether she advised the grievor before or
during the meeting that she could be dismissed, Ms. Albrecht
said that she did not believe she had so advised her and that
she probably would have said she would have to discuss this
with the Administrator and would have to get back to her. She
said that at the meeting Ms. Kutty "gave an overview of the
investigation, including of the events of the night of Decem-
ber 14, of the documentation provided in the patient's case-
book and the documentation provided by several staff members
and a patient witness". She said that Ms. Kutty pointed out
the contradictions between the reports, particularly that the
grievor was alerted to what turned out to be a fire, and who
took the patient out of the room. She then said that she
"eventually" asked the grievor whether she personally took
the patient out of the room and that the grievor then said
"no" The conversation or dialogue that preceded Ms. Al-
brecht "eventually" asking the grievor whether she personally
took the patient out of the room was not provided. Ms. Al-
brecht then said that she asked the grievor if she could ex-
plain why she didn't and left the immediate care of a patient
to an RNA, and that the grievor said that other patients had
to be evacuated. Ms. Albrecht said that she asked the grie-
vor if she could explain why she gave a false explanation,
and then said "She gave none I believe she shrugged. I'm not
sure" . She said that at the meeting the grievor appeared
53
very "calm and quiet" When asked whether the grievor ever
told her she was panicked and upset on the night of the fire,
Ms. Albrecht replied "no". She then said that when she asked
her why the information was wrong, the grievor said that so
many things had happened so qUlckly
In cross-examination, when asked whether at the meeting,
the grievor told her that she wasn't thinking clearly on the
night of the fire, Ms. Albrecht said that she could not re-
call. When asked how the grievor had been "evasive" at the
March 21 meeting, as she described in her memo to Ms. Stuart
(Ex. 8 ), Ms Albrecht replied "I don't believe she responded
verbally; she didn't acknowledge it one way or the other,
that's what I recall". She agreed that the grievor had not
been evasive when she was asked directly whether she had
taken AB out of her room.
Mr. Majeed testified that the meeting was held in the
board room, and that Ms. Kutty, Ms. Albrecht, the grievor, a
union representative, and someone else had been in atten-
dance. He said that the findings of the investigation were
discussed and the grievor was asked to respond. When asked
what the findings had been, he replied "Whatever the investi-
gators submitted to the acting administrators" He said that
he did not remember the details. He said that the grievor
was asked to respond, and that he did not think that she did
respond He acknowledged that he did not recall that she did
not respond, and said that he was not sure. He said that he
did not think her dismissal was discussed at the time In
re-examination, he was asked whether he recalled the grievor
saying the meeting, that she panicked He replied "no", then
said "I don't remember". He was then asked whether the grie-
vor appeared panicked or upset at the meeting, and he replied
"no". He described her "mood" at that meeting as "somber,
quiet" . When asked whether he recalled the grievor saying
whether or not she pulled AB out of her room, he said that he
could not remember
54
union Steward Danielle Latulippe-Larmand attended the
March 21, 1994 meeting at the grievor's request. She said
that at the meeting, administration wanted clarification as
to what occurred and administration indicated that there was
a contradiction She said that they wanted to know who pull-
ed the patient from the fire and what transpired. She said
that the grievor initally said that she pulled the patient
out She said that Ms Albrecht pointed out the contradic-
tion, that initially the grievor didn't reply, then said she
did not pull the patient out. When asked whether the grievor
told the employer that she panicked on the night of the fire
or after the fire, Ms. Latulippe-Larmand did not confirm whe-
ther she did or did not. She said that the grievor was non-
emotional and flat during the meeting, and that she did not
seem panicked.
The grievor testified that she does not normally display
her emotions She said that at the meeting Ms. Kutty said
that she had a document which she said was the findings of
the fire, and that she read it. She then said that before
Ms. Kutty read it, they informed her it was a meeting to dis-
cuss the findings of the fire. She said that after Ms. Kutty
finished reading the document, Ms. Kutty said that there were
some inconsistencies between her statement, Mr. Cianfrogna's
statement, and what UG had told "them". She said that they
said UG's and Mr. Cianfrogna's statements "were saying the
same thing" and that hers was "different" She said that she
did not know which of her statements they had been referring
to. She sald that at the meeting she knew that they under-
stood that she had said that she had pulled the patient from
the room, and that Mr Cianfrogna and UG had indicated other-
wise. She denied having told those at the meeting that she
had pulled the patient out of the room She agreed that she
had told them that she had panicked and said that she gave
them "the sequence of events just like I did here".
In cross-examination the grievor acknowledged that she
recalled Ms Kutty saying that she was reading from a summary
55
of the findings of the investigation. She acknowledged that
she did not ask to see lt and that she had not asked them
which of her statements they said was different from what Mr.
Cianfrogna and UG had said She said that when they, presu-
mably Ms. Kutty and Ms Albrecht, said that in the documenta-
tion she said that she pulled the patient from the room, she
realized "exactly what documentation they were talking about,
the one in the patient's chart, because it's not in my State-
ment" She then said that she was not aware that they had the
typed document in front of them. By this, the panel under-
stands the grievor to have meant that she initially did not
realize that Ms. Kutty and Ms. Albrecht were talking about
her statement in the patient's chart and other documentation
that she made the morning after the fire, in which she had
indicated that she had pulled the patient from the room,
because she had not indicated that she had pulled the patient
from the room in her second Statement, (Ex. 6, 9 c - e) and
that she did not know during the meeting that Ms. Kutty and
Ms Albrecht had the typed Sloot/LaRose interview note (Ex
6, p 8) which indicated that in January she had maintained to
the investigators that she had pulled the patient from the
room and were concerned about it. At this point in the evi-
dence, counsel for the employer indicated that at the meet-
ing, administration had the entire Sloot/LaRose Investigation
Report (Ex. 6) in front of them.
When the grievor was asked whether she told administra-
tion at the meeting that she had provided a second statement,
she replied that she gave the second statement to Mr. Majeed
in a sealed envelope when Ms. Kutty was away, and that he
opened it with her permission She was then asked whether
she pointed out that the earlier reportings were inaccurate.
She replied that she recalled having a conversation with both
Mr. Majeed and Ms. Kutty and that she told them of the State-
ment that she gave to Mr. Majeed. When asked when the con-
versation had taken place, she said that she remembered spea-
king to Ms. Kutty about this. She said she did not remember
56
whether it was on March 21 When asked again when the con-
versation occurred, she said "It would be during that meet-
ing I only had one meeting. It had to be March 21. Shameer
Majeed and Ms. Kutty were there."
The grievor was asked to refer to Ex 8, Ms. Albrecht's
post-meeting Memo to Ms. Stuart, which contains a list of the
people present at the meeting. The grievor said that she re-
membered who was there, that she had never met Ms. Albrecht
and had never seen Ms Mahoney. She then said "only Shameer
and Ms. Kutty's face stand out of who was at that meeting"
When asked whether she "drew to their attention" on March 21,
1994 that she was "only relying on her second statement" (Ex
6, 9 c - e) she replied that she had done so.
When it was put to the grievor that all the other wit-
nesses agreed that she had no explanation, she replied "I an-
swered them, I gave them a response." When asked whether it
was her evidence that they were all giving false evidence,
she replied that she could not say. She was then asked whe-
ther it was her testimony that they were all mistaken when
they said she provided no explanation for the inconsisten-
cies. She asked to see and was shown a copy of Ms Al-
brecht's memo to Ms Stuart regarding the March 21 meeting
(EX. 8) . She was then asked whether she agreed that when Ms.
Albrecht put these inconsistencies to her she had provided no
explanation. She said that she recalled that Mr. Majeed was
the only one who said that she did not respond, and said that
her answer was that she did provide an explanation When
asked what her explanation had been for the inconsistencies
regarding who pulled the patient out, the grievor said that
she had said that she had panicked and went to get Mr. Cian-
frogna, and that he pulled the patient out of the room She
agreed that she was specifically asked why she had written
that she had pulled the patient out of the room. She said
that she "explained to them the time the report was written
and my frame of mind". She said that she told them "there
was massive confusion that morning, and I was not thinking
57
clearly at the time, Ms Davidson being taken away and all
the responsibility being on me alone".
The grievor was asked whether she had any explanation
for the inconsistency between her statement that at the March
21 meeting she said had panicked on December 14, 1993, and
the other witnesses' statements that at the meeting she did
not say that she panicked She said that she could not give
"any explanation for anyone but myself" She denied having
been panicked at the meeting.
The grievor said that if she had been told that discip-
line was being contemplated, she would not have behaved dif-
ferently at the meeting She agreed that she would have
brought a union representative with her in any case.
The grievor testified that at the end of the meeting Ms.
Albrecht told her that they were going to discuss the matter
further and that they would get back to her. She said that
Ms. Albrecht did not get back to her on March 21, 1994, and
that she did not meet with Administrator Allison Stuart re-
garding this matter. She said that she did not expect to be
disciplined over this matter. When asked whether she was
warned that she could be disciplined, she said "no, they
didn't say anything in the meeting".
The Post-Meeting Meeting
Ms. Kutty testifled that after the March 21 meeting,
management met and discussed the job requirements, and the
standards of nursing practice. She said that the abandonment
of the patient was of great concern to them, as was falsifi-
cation of reports.
Ms. Kutty said that the job requirements in the position
Spec. (Ex 9) were "coordinates and provides direct psychiat-
ric and general nursing care to adult patients during the
crisis, acute, and all stages of rehabilitation for patients
with major psychiatric disorders" and "managing emergency si-
tuations, i e fire" and "managing the patient's environ-
58
ment to provide safety" and "monitoring and/or providing ade-
quate basic needs". The charge nurse's responsibility is to
ensure patient care is delivered Staff under her are as-
signed various tasks and ensure they are carried out, report
incidents to supervisors, and make reports There is one
charge nurse per shift and s/he is responsible for the floor,
it was the grievor on Dec. 13-14, 1993. The grievor did not
meet the job requirements "managing emergency situations,
i.e. ...fire" and "managing the patient's environment to pro-
vide safety" and "monitoring and/or providing adequate basic
needs" because the emergency situation was not handled in ac-
cordance with hospital policy or standards. The patient was
left, and her safety was jeopardized. The grievor failed to
meet the "standards of practice" in items (g) and (m) in S.
21 of O.Reg. 549/80 under the Health Disciplines Act.
S. 21 of O.Reg 549/80 provides
For the purposes of Part IV of the Act, "profes-
sional misconduct" means
. . .
(g) abandoning a patient
. . .
(m) falsifying a record in respect of the
observation or treatment of a patient
Ms. Kutty also referred to subsections 1, 14 and 15 of a.Reg.
299/ 93 under the Nursing Act. 1991, which provide:
1. The following are acts of professional
misconduct for the purposes of clause 51(1)(c)
of the Health Professions Procedural Code:
1. Contravening a standard of the profession
or failing to meet the standard of prac-
tice of the profession.
14. Falsifying a record relating to the
member's practice.
15. Signing or issuing, in the member's pro-
fessional capacity, a document that the
member knows or ought to know contains a
false or misleading statement.
with respect to the grievor having failed to fulfil cer-
tain duties in her job specification, Ms. Kutty acknowledged
59
in cross-examination that a charge nurse is expected to as-
sign tasks to PNAs and that the grievor had done so in giving
directions to Len Cianfrogna, and that she had fulfilled that
duty. She said that both the nurse and the department are
responsible for ensuring that nursing is provided in accor-
dance with the above regulations She said that the Head
Nurse is responsible for Performance Appraisals, not the
Nursing Coordinator
Ms Kutty said that she was aware that Acting Nursing
Coordinator Elke Schliemann had issued a letter of reprimand
to the grievor arising out of her conduct in relation to a
patient on September 16, 1993. She identified a letter dated
November 29, 1993 from Ms Schliemann to the grievor which
stated Ms Schliemann's understanding of what had occurred.
She acknowledged that BW, the allegedly mistreated patient
had not initiated the complaint, and identified the original
written complaint from another patient, KM, which was direc-
ted to "Mr. R. Shameer" and Allison Stuart. She acknowledged
that she had taken the reprimand into consideration when
arriving at her decision, and said that she saw them both as
patient care issues In cross-examination Ms Kutty said
that she was aware of a falsification of a report by the
grievor prior to December 14, 1993. She said that there was
an incident in which a patient complained that the grievor
had reported something in her file that was incorrect. She
said that the grievor was counselled, not disciplined She
was unable to advise as to the content of the counselling.
Informing the Administrator:
At some point after the March 21 meeting, Ms Albrecht
wrote a Memorandum to Allison J. Stuart, Administrator (Ex.
8) , the text of which states
On Monday, March 21, 1994, a meeting was held
_ _--_ __ __.r-
60
to present the result of the investigation of the
fire on UI-4 on December 14, 1993, to Ms Wright
and to give her an opportunity to respond.
Present were. A. Kutty, Nursing Coordinator
D. Mahoney, Human Resources
V. Gorewicz, Human Resources
S Wright, R N.
D. Latulippe-Larmand, OPSEU
G. Albrecht, Chair
A. Kutty presented a summary of the fire in-
vestigation report and pointed out the discrepan-
cies in the statements and testimonies given by
staff and one patient witness, especially as to who
removed the patient from the room.
When her statements were quoted to her, she
gave signs of acknowledgement. When the patient's
and other staff's account were quoted, her response
was non-commital and vague. When told that the pa-
tient witness repeatedly and consistently stated
that she alerted Ms. Wright twice before she res-
ponded she was evasive. As well, she was initially
evasive about whether she took the patient out of
the room. It was only when I asked her directly if
she removed the patient from the room that she ad-
mitted she did not take the patient out of the
room. She had no explanation why she left the bur-
ning patient in the room or why she provided false
documentation and testimony, except to point out
events were happening very quickly that night and
there was not much time. She was unable to explain
why she did not come forward to correct her state-
ment when the investigation was conducted When
asked why she left the burn victim to the care of a
Registered Nursing Assistant rather than attend to
the patient herself, she stated that other patients
had to be evacuated.
In light of the serious consequences of her
failure to act promptly and for providing initial
false documentation and continuing to maintain the
information, I recommend that Ms. Wright be dis-
missed from employment for:
1. Abandonment of a patient in serious dis-
tress and danger of life.
2. Breech (sic) of trust for providing
false information.
Ms. Wright was given an opportunity to provide
61
reasons for her behaviour and she did not provide
any reason to lessen the penalty.
Furthermore her delay in responding may have
contributed to the severity of the injuries
Additional information not contained in the
investigation report was obtained during the course
of the meeting:
- The patient was given her last cigarette
at 2300 hours by the RNA who observed her
smoking it in the smoking lounge
- On making her last hourly rounds at 0200
hours, Ms Wright observed the patient
standing and looking at the window in her
room.
- It appears that the duty physician was
unable to assess the extent of the burns
as the gowns had adhered to the skln and
could not be removed.
- When the patient was questioned by the
physician as to what had happened, she
responded by replying that she was cold
and thirsty and asked for water.
- No further information was obtained from
the patient then or on transit to TWH
Ms Albrecht testified that she wrote that the grievor's
"delay may have contributed to the severity of the injuries"
in the above memo, "because the patient was on fire when [the
grievor] went to Len". She said that any second would con-
tribute to further injury, smoke inhalation, as well as
burns.
Previous Discipline and Performance Appraisals:
At the time of the fire, Elke Schliemann was Acting Nur-
sing Coordinator, and reported to then Assistant Administra-
tor of Nursing Services Gisela Albrecht Ms. Schliemann ac-
knowledged having received a copy of a complaint from patient
KM dated September 21, 1993 addressed to Head Nurse Sharneer
Majeed (Ex. 13) She said that she investigated the matter
62
in the presence of the Head Nurse, and confirmed the allega-
tions with 2 patient witnesses. She said that KM had alleged
that the grievor and another nurse, Florence, had been teas-
ing a patient with respect to medication by injection. She
also understood that the grievor and Florence had not treated
the patient well, and that he had had to wait for his medica-
tion for 15 or more minutes.
Ms. Schliemann said she did not meet with the grievor
and did not speak with her about the incident, and that she
told Shameer Majeed to talk to her. She was shown a copy of
a typewritten letter addressed to the grievor dated October
26, 1993 (Ex. 16) signed by her i e. Ms. Schliemann, and was
asked to refresh her memory from it. She then testified that
she had held a meeting with the grievor, Nursing Coordinator
Ellie Cifra, and Union Representative Bob Caravan, on October
28, 1993. She agreed that her memo to Ms. Albrecht dated No-
vember 1, 1993 (Ex. 17) set out what occurred at the October
28 meeting, and said that in her memo to Ms Albrecht she had
characterized the grievor's conduct with the patient as "pa-
tient abuse" because she thought the College of Nurses would
view teasing as a form of patient abuse She said that the
memo was not sent to the grievor. Ms Schliemann's memo (Ex.
17) recommended that a letter of reprimand be placed on the
grievor's file, that she be counselled with other staff re-
garding how to deal with interpersonal conflicts, that she be
assigned to dayshift for 3 months and a performance appraisal
be completed thereafter, and that the complaint be reported
to the College of Nurses.
In cross-examination Ms. Schliemann indicated that the
recommendation regarding placement on dayshift was not imple-
mented because staff was on 6-week schedules and the grie-
vor's schedule could not be changed without changing others'
schedules. She said that the Centre did not report the com-
plaint to the College. She said that the recommended perfor-
mance appraisal "was intended to be done" but that such ap-
63
praisals are done by Head Nurses, not Acting Nursing
Coordinators.
with respect to her past performance, the grievor sub-
mitted four performance appraisals (Ex. 18 - 21) into evi-
dence and said that she viewed them as "good" She said that
the only concerns the employer discussed with her were her
attendance and her writing of care plans
The grievor was shown the letter of reprimand (Ex 12)
resulting from the allegation of KM. She said that she had
told Ms. Cifra and Ms Schliemann "exactly what had happen-
ed". She sa1d that there had not been any teasing of patient
BW. She said that at the meeting with Ms. Cifra and Ms.
Schliemann she had explained her relationship with the pa-
tient who wrote the letter and with BW, and the incidents
around the primary patient's letter. She said that BW was
obliged to take his prescribed medication orally in the pre-
sence of the nurse(s) because he had a tendency to spit it
out or dispose of it in the washroom, and that if he refused
his oral medication it was to be administered by injection.
She said that she believed that the patient who had complain-
ed about her having teased BW had complained to the College
of Nurses some time after November, 1993 about the teasing
incident and about "some charting in her chart as well", and
that the College dismissed the complaint In cross-examina-
tion, with reference to patient KM's allegation in Ex. 13
that the grievor had, in the presence of both KM and BW re-
ferred to patient BW's therapist as a "shitbag therapist",
the grievor said "it did slip out". She acknowledged that
KM's second complaint had been that she had falsified infor-
mation on the patient's chart.
Mr. Majeed testified that he was the grievor's direct
supervisor. He said that he felt his working relationship
with her was "fairly decent and professional, as a supervi-
sor". He said that he had to meet with her on certain oc-
casions. He did not indicate the reasons for meeting with
her. He acknowledged that he had not done any performance
64
appraisals and offered that he had only worked with her for
just about one year. When asked whether he felt she was a
good nurse, he replied "I would say she knew her nursing
skills, yes" He acknowledged that he had been there just
over one year and a few months when the fire occurred and
that he had not been on shift when the fire occurred.
The Decision to Terminate:
a) The Authority to Dismiss:
Ms. Kutty said in cross-examination that she had no au-
thority to dismiss personnel, but that she had the authority
to discipline, from a reprimand up to the recommendation of a
suspension, as her authority is limited to recommending where
loss of pay is involved.
Ms. Albrecht testified at the outset of her evidence
that as Assistant Administrator of Nursing Services, she was
responsible for all matters pertaining to the Department of
Nursing, including hiring, firing, discipline, quality of
service and nursing standards, among other things When
asked in cross-examination whether she had the authority to
dismiss, she said she only had the authority to recommend
dismissal.
b) Reasons for Dismissal:
According to Ms Kutty's and Ms. Albrecht's evidence,
neither had the authority to dismiss personnel, and of the
two of them, only Ms. Albrecht had the power to recommend
dismissal. Ms. Stuart was, according to their evidence, the
only person who had the authority to determine whether to
dismiss the grievor She did not testify
Ms. Stuart may have authored, and apparently signed the
letter of dismissal, addressed to the grievor, which states;
March 25, 1994 By Registered Mail
Dear Ms. Wright:
65
I have received information from Gisela Albrecht,
Assistant Administrator, Nursing Services, concern-
ing the manner in which you handled an incident re-
lating to a fire in a patient's room on December
14, 1993. An investigation determined that you did
not respond as quickly as possible and you abandon-
ed the patient in serious distress and danger of
life As well, your initial reporting of the inci-
dent was false and you provided false and contra-
dictory information throughout the investigation
You were given an opportunity at a predisciplinary
meeting to explain your actions. You eventually
admitted that you had lied in your reports, but you
were unable to offer an acceptable explanation for
your actions or your subsequent false statements
Your work history was reviewed from 1989 and it is
noted that you received a letter of reprimand in
November 1993 for inappropriate behaviour.
Given the nature of your position as a Registered
Nurse, the very serious nature of your misconduct
and the breach of trust which this incident repre-
sents, I have decided to dismiss you from your em-
ployment at Queen Street Mental Health Centre ef-
fective March 25, 1994, for cause in accordance
with Section 22(3) of the Public Service Act.
Termination documents for your signature will be
forwarded to you shortly by registered mail. If
you have any questions regarding the documents you
should call the Human Resources Office You are
not to enter the Centre's property without my
explicit permission.
You are advised that you have the right to grieve
this dismissal under Article 27 8.2 of the Collec-
tive Agreement.
Yours truly,
Allison J Stuart
Administrator
c.c.: G Albrecht
Human Resources
The above letter constitutes the reasons, on the written
record, for the dismissal
Ms. Albrecht said that she was the person who recommen-
ded dismissal of the grievor to the Centre Administrator, Ms
Stuart. She said that her reasons were "abandonment of a pa-
66
tient in severe distress and endangerment of life and breach
of trust for providing false information" When asked why
she recommended dismissal rather than a lesser penalty, Ms.
Albrecht said that under the Health Discipline Act and nurs-
ing standards, breach of trust is a very serious offence,
that an employer in a health care facility must be able to
trust that an employee will provide health care, not falsify
information, and provide correct care in an emergency, that
the employer must rely on her judgment and that it could not
place trust in the grievor's performance. She later agreed
with the suggestion that any breach of trust is a serious of-
fense and said that administration is responsible to the pub-
lic for the care and information staff provides She said
she had not seen the Fire Marshall's report (Ex. 14) . She
said that she had never worked with the grievor.
The Termination
The grievor testified that she received the letter of
dismissal (Ex 1) when she came back to work on Friday mor-
ning, March 25, 1994 As she was about to review the night
reports Mr. Majeed told her that Ms. Kutty would like to see
her in her office, and she and Mr Majeed went to Ms. Kutty's
office. Ms. Kutty gave her the letter and she read it in
their presence. They asked her if she had anything upstairs
if she needed to get and she said that she had all her belon-
gings with her. Ms. Kutty asked her for her keys; she gave
them to her and left.
Mr. Majeed testified that he was present the morning the
grievor was terminated. He agreed that what he attended was
a meeting. He sald that he had no involvement in the deci-
sion to terminate her employment and was not asked for any
input into the decision.
67
Post-Termination Events:
a) The College of Nurses Complaints Committee:
The grievor testified that the matter was referred to
the College of Nursing, that the College investigated and
"just issued me a letter of caution". She said that the Col-
lege's Complaint Committee dismissed the matter and she pro-
vided a copy of the College's decision (Ex 22) . Ex 22
indicates that the complaint was not dismissed, but rather,
that the grievor was issued a letter of caution. In cross-
examination the grievor said that a representative had prov-
ided the college information on her behalf, and that she had
not attended a hearing.
b) The Board of Referee's Decision
The grievor testified that since her employment at the
Centre was terminated, she had been working for a temporary
medical staffing agency. In cross-examination she acknowled-
ged that after the Centre dismissed her, she had applied for
and been denied UnemploYment Insurance Benefits, that she ap-
peal led the denial to the Board of Referees and appeared be-
fore the Board on the appeal in the summer of 1993. She ac-
knowledged that she had union representation at the appeal
hearing, that she gave oral evidence under oath, and that her
appeal had been denied She identified the Decision of the
Board of Referees in her appeal (Ex. 23) She said that the
Board of Referees incorrectly stated that she denied having
lied in her initial documentation. She described her evi-
dence to the Board as that she "didn't tell them that it [her
documentation] wasn't false".
In re-examination the grievor denied that she told the
Board of Referees panel that she pulled the patient from the
room, and agreed that she told them the documentation on the
chart was wrong. She later said that she drew her two
statements to the attention of the Board of Referees, and
told them which she had written first, and which she had
written second. She said that she told them the sequence of
68
events that occurred December 14, 1993, and "attributed [her]
lapse to [her] state of m,~nd, the chaos going on on the floor
the mornlng of the fire".
The Arguments:
For the Employer:
Mr Kramer made the following submissions
There had been 2 reasons for the grievor's dismissal
1 she abandoned a patient on fire and in crisis
contrary to the nursing standards of practice as well as the
requirements of her job and
2 she provided false and contradictory informa-
tion throughout the employer's investigation and demonstrated
a breach of trust.
This case is about three things:
1- the grievor's failure to meet her obligations
as an R.N and more specifically, as the charge nurse on the
night of the fire;
2. repeated dishonesty throughout the investiga-
tion process including the final investigative meeting, where
she demonstrated a significant and irreparable breach of
trust;
3 credibility: the grievor's preponderance to
lie under oath after dismissal before the Board of Referees
under the Unemployment Insurance Act as well as this board
when it suits her purposes
with respect to abandonment, the standard expected of
the grievor and which the grievor was required to mee't is
found in O/Reg. 549 s. 21(g) (Ex 10) and the Job Specifica-
tion (Ex 9), which states that her function lS to coordinate
and provide dir'ect nursing care to pat...ents, manage an amer-
gency situation, including fire, manage the patients' envi-
ronment, provide safety, monitor and provide adequate basic
69
needs of patients, collect and assess factors related to a
patient's health
The standard expected of the grievor with regard to dis-
honesty, is found in s 1 (14) and (15) of O/Reg. 799/93,
which cites falsifying a record relating to the nurse's prac-
tice and that it is professional misconduct to sign or issue
a document that the nurse knows or ought to know contains a
false or misleading statement The grievor's Job Specifica-
tion also establishes the standard to be met with respect to
dishonesty, and para. 1 4.2 refers to summarizing the evalua-
tion of care in Progress Notes and preparing routine depart-
mental reports.
The evidence respecting abandonment was that the grievor
was a charge nurse, that she had undertaken this responsibi-
lity since 1990, that UG approached the grievor and told her
that AB was screaming and that she should come. The employ-
er's position is that the grievor did not go immediately, but
sent UG back The Sloot/LaRose note of the interview with UG
(Ex. 6, p. 7 a) , the memo of Ms. O'Hara to Ms. Schliemann (Ex.
4) , the evidence of Mr Sloot, Mr LaRose and Ms. Albrecht
all support this. While the grievor dlsputed that UG came to
her twice, she acknowledged that she finished what she was
writing before responding to news of a screaming patient. It
was uncontroverted that the grievor went to AB's room, opened
the door, saw her in flames, and ran This is clearly aban-
doning a patient in crisis and failure to provide for her
safety and needs The grievor said that she left the patient
there because she panicked, but only for a moment, then came
back and evacuated the other patients. She also testified
that when she opened the door she saw AB waving her arms, and
acknowledged that this would feed the flames and that she did
not say anything to the patient, e.g to lie down, or to stop
waving her arms
The grievor testified that part of the confusion on the
ward was due to the fact that help did not arrive sooner,
that she and Mr. Cianfrogna were on the ward for a few mi-
70
nutes, alone In cross-examination the grievor admitted that
help would have arrived sooner if she had pulled the alarm.
She also admitted that she was the only nurse on the floor to
have known the possible extent of AB's injuries, that she did
not do an assessment of AB, and did not inform any other
nurse of AB's possible injuries and did not ask them to do an
assessment. Ms. Davidson's evidence is consistent with that
aspect of the grievor's conduct The grievor testified that
the only assessment she did of AB was to make passing eye
contact with her while evacuating other patients. This
demonstrates a failure to perform an assesment of the patient
or to delegate the responsibility to another qualified staff
person who was available.
with respect to dishonesty, the patient file which the
grievor filled out was false, and the grievor denied that she
reported falsely out of fear of criticism. The grievor tes-
tified that she copied information from the patient's file
into a note for the nurses' office. The employer did not
present that note in evidence. The grievor's testimony indi-
cates that there is an additional document out there contai-
ning false information
The grievor offered no plausible excuse for falsely fil-
ling out the patient's file except to say that she was rushed
at the end of her shift The grievor claims she was given a
6:30 a.m. deadline to complete this reporting The grievor
never referrred to this alleged deadline in any earlier com-
munication and the deadline was not supported by any other
evidence The employer denies the existence of such a dead-
line. The grievor acknowledged the importance of accuracy in
filling out a patient's file and she admitted she did not ask
for an extension in order to ensure accuracy
Ms. Davidson said that she filled out a report at the
grievor's request and that the grievor signed it. The grie-
vor had made no mention of this. The grievor said that she
was shocked and panicked; this contradicts her statement that
when she opened AB's door she panicked for a moment and then
71
regained her composure. She was composed enought to evacuate
the ward but not composed enough to accurately record who
pulled AB out of her room The grievor said that the cloud
did not lift until after she had gone home and had a chance
to compose herself Ms. Davidson testified to a conversation
with the grievor which took place that morning before she
went home, in which she said that the information in the
patient file was incorrect.
Head Nurse Shameer Majeed testified that he had noti-
fied the staff involved to prepare a written statement of
what happened and to hold on to it in case it was needed. Mr.
Majeed said that the grievor stood by the reporting of events
in the patient file He had asked Mr. Majeed if the grievor
had ever asked him if she could change the information in the
patient file, and Mr. Majeed said that he told her she could
not remove anything but could add to her report and make an
addendum to the file. The grievor's evidence contradicts Mr.
Majeed's. She said that he told her he couldn't authorize
that and that she needed to ask Ms. Kutty. When the grievor
was asked to explain this inconsistency, she said that Mr.
Majeed was mistaken
The grievor said that she was quite concerned about the
false information in the patient file but admitted three
things: 1 ) she raised it only when Mr. Majeed called her,
despite Ms. Davidson's evidence that she told the grievor
about it the morning of the fire; 2) she admitted that she
never contacted Ms Kutty who she apparently felt had the
sole authority to authorize a change to the file, and; 3) she
admitted that she had full access to AB'S file when she re-
turned to work, but never made any change to it The grievor
identified the portion of the nursing manual which deals with
patient reports (Ex 24) which is located at her station and
sets out in clear language the process to be followed and she
admitted that it is her job to know and carry out nursing
manual procedures. Ms. Davidson testified that she knows how
to make changes on a patient file from her own experience.
72
with respect to the Sloot/LaRose investigation and the
interview with the grievor, Mr. Sloot and Mr. LaRose both
testified to the exact same facts surrounding the grievor's
interview They both agreed that the grievor had told them
that she pulled the patient from her room They both testi-
fied that they took notes and read them back to the grievor
to ensure that they accurately reflected what she said. Mr
Cianfrogna agreed that they read their notes back to him. Mr.
Sloot said that their report (Ex. 6) accurately reflects what
he was told and his notes The grievor said that she never
told him she pulled the patient from her room, that neither
of them read their notes back to her and that their typed
statement does not reflect what she said. I went through the
inaccuracies the grievor alleged, and there was no inconsis-
tency on any significant facts. Whether the patient approa-
ched the nursing station at 3:04 or another time is minor and
immaterial.
The grievor acknowledged that the investigation was
purely a fact-finding exercise and she provided no explana-
tion for the inconsistencies between what she said and what
was on the page The grievor testified she attended the in-
terview between two 12-hour back-to-back shifts and nothing
carne from that statement Perhaps the grievor was suggesting
fatigue. In cross-examination she clarified that she atten-
ded the interview the morning of the first of those shifts,
having returned from a day off the day before The grievor
alleges that she never told the investigators that she pulled
AB from the room. We know from Mr. Cianfrogna's evidence and
the fire investigation report that no one except the grievor
makes this claim, and that the grievor could not explain
where they got the information and why they would put such a
glaring error in their statement. The grievor ultimately
said that Mr. Sloot and Mr. LaRose were inaccurate in their
reports and gave mistaken evidence at this hearing.
The grievor testified that her second statement (Ex. 6,
p 9 c - e) was her opportunity to set the record straight.
r
I
[
f
73
In cross-examination she admitted that she omitted mention of
UG in this version and said she prepared it shortly after
Christmas but never brought it to Mr. Sloot's and Mr. La-
Rose's attention despite saying that it was the statement she
relied on.
All 4 witnesses to the March 21 investigative meeting
testified to the same things:
1 ) that Ms. Kutty presented the findings of the
investigation including inconsistencies between what the
grievor stated on three occasions and the inconsistencies
between her story, UG's and Mr. Cianfrogna's stories;
2 ) that the grievor provided no explanation for
the inconsistencies between UG's and Mr. Cianfrogna's stories
and hers;
3 ) that the grievor never told them that she
panicked;
4) that she was evasive and seemed calm and
collected during the meeting.
The grievor testified that she did say during the meet-
ing that she panicked on the night of the fire. When I asked
her in cross-examination why she did not draw their attention
to her third statement, she said that she provided Mr Majeed
and Ms. Kutty the statement in a sealed envelope during this
meeting. This was not referred to or substantiated by any
other witness. The grievor's explanation for the difference
in her version of the events was that all four other witnes-
ses were mistaken
The grievor admitted that she appeared before the Unem-
ployment Insurance Board of Referees and gave evidence under
oath. The decision states that the grievor denied having gi-
ven false information to her employer, which, he submitted,
we now know to be true. The grievor could not explain this
inconsistency except to say all 3 members of the Board of
Referees were mistaken. The grievor testified that she aban-
doned her appeal and let the decision stand, even though she
lost her benefits
74
The grievor's credibility is in lssue, oWlng to lncon-
sistencies in the evidence and weakness in the grievor's sto-
ries. The grievor said UG approached her once and UG says
that she approached the grievor twice Ms Albrecht, Mr.
Sloot and Mr LaRose confirm that UG told them what is in her
written statement The grievor says she panicked only for a
moment, then regained her composure to do the evacuation but
on the other hand says that she was panicked filling out the
report. The grievor said that Mr Majeed would not authorize
changing the patient's file and Mr. Majeed testified that he
told her she could make an addendum. The policy is clear
that she could make an addition to the file at any time and
Ms. Davidson said that nurses with some nursing experience
know how to change files.
Both investigators said that the typed statement (Ex. 6,
p 8) is an accurate reflection of the interview and the grie-
vor told them that she pulled AB from the room and the grie-
vor says this is inaccurate.
Ms. Albrecht, Ms. Kutty, Mr. Majeed and Ms. Armand said
that the grievor was evasive at the meeting, provided no
explanation for the inconsistencies when specifically asked,
and never told anyone that she panicked, and the grievor
denies all this.
All 3 members of the Board of Referees are quite clear
that the grievor denied having given false information to the
employer during their investigation. The grievor testified
that she did not tell the Board of Referees that.
Two conclusions are possible to draw from these incon-
sistencies: the first, that all the employer's witnesses and
the Board of Referees lied, or that the grievor lied. The
panel should consider which witnesses are more credible and
which of the two conclusions is more believable
Another matter to be considered is whether the grievor's
conduct warrants dismissal. There are two separate grounds
for dismissal, and each ground on its own warranted dismis-
75
sal The combined effect of the two grounds leaves no doubt
that dismissal is the appropriate response
The first ground warranting dismissal was abandonment of
I a patient. This is a form of patient abuse with regard to
the fact situation in Normandy Hospital and Hospital Employ-
ees' Union. Loc. 180, (1987), 32 L.A.C. (3d) 397 ( Greyell),
if washing and caring for a patient before obtaining medical
attention for the patient is considered patient abuse, then
abandoning a patient in a room full of flames is patient
abuse.
In Kennedy Lodge Nursing Home and S.E.I.U., Loc. 204
(1991), 18 L.A.C. (4th) 38 (Davis) the arbitrator indicated
that there is a higher standard of conduct for health care
professionals, and that the grievor's failure to respond to a
patient's call button constituted gross negligence. The fol-
lowing passage, at p. 47, supra, should be noted:
It is generally accepted that standards of
conduct reasonably required of employees will vary
according to the occupation and industry in which
the individual is employed. It appears to be re-
cognized by arbitrators that in the health care
industry a much higher standard of performance is
required of employees than would be so in the ma-
nufacturing industry, for instance, because of the
aspect of public trust involved in the care and
treatment of the patients entrusted to the institu-
tion, be it a hospital, nursing home or other simi-
!i lar institution See Re Government of Province of
i B.C. and B.C.G.E.U.(1980), 26 L.A.C (2d) 71 (Hope)
. . .
~ In Oshawa General Hospital and Ontario Nurses' Associa-
tion (1976), 12 L.A C. (2d) 182 ( 0 ' Shea) , the grievor failed
r to check the identification on the blood packet prior to ad-
f
ministering it, and immediately acknowledged her error The
following passages in the award, at pp. 188-189 are of note:
Again, if the grievor had inadvertently mis-
read the identification or if the procedures in
themselves were so complex that they were very sus-
ceptible to error, the grievors (sic) culpability
would be lessened, although not removed
76
. .
In an [earlier] award . the present Chairman
expressed his views as to the standard of conduct
of a reglstered nurse as follows
However that may be, we are of the view
that an employer is entitled to expect a high-
er standard of conduct, in so far as it re-
lates to professional competence, from a pro-
fessional person such as a registered nurse,
than an employer in industry is entitled to
expect from the average rank and file
employee.
The professional training and skills usu-
ally expected of a registered nurse, in so far
as they relate to patient care are such that
the hospital is entitled to expect that the
professional integrity of the nurse would
require her to carry out her duties efficient-
ly and properly.
. . .
Even though we find that the grievor did
not act maliciously and may have been other-
wise a hard worker, the evidence established
that the hospital could not rely on her to
exercise her professional responsibility to
carry out simple, yet important, basic nursing
procedure. The grievance must accordingly
fail.
Basic nursing procedures would dictate that immediate
care should have been administered to the patient. The em-
ployer relies on the last line of the foregoing passage. The
basic nursing procedure which the employer cannot rely upon
the grievor to carry out is to fill out documentation accu-
rately and truthfully.
In Peterborouqh Civil Hospital and C.U.P.E.. Loc. 19
(unreported) March 20, 1989 (Burkett) an ambulance attendant
falsified a report and the discharge was upheld Providing
false information in the course of employment is adequate
cause for dismissal In Peterborouqh the grievor compounded
matters by giving false testimony The statement, at pp. 6-
7, supra,
[the grievor] engaged in a serious dishonest
act and compounded matters by giving false testimo-
ny. In circumstances where a grievor has committed
a serious dishonest act and then gives false testi-
mony in an attempt to extricate himself, a plea for
a mitigation of the penalty on grounds of equitable
77
consideration must be seen as hollow and unworthy
The false testimony evidences a disrespect for the
process and, more importantly, gives rise to a pre-
sumption that there has been no recognition of the
initial wrongdoing and the likelihood of further
dishonest acts if returned to emploYment
is applicable to the grievor's behaviour in this case She
had shown no recognition of wrongdoing, and therefore there
is no hope of rehabilitation
In Dain, 3814/92 (Gorsky) the grievor was an unsuper-
vised employee in a position of trust who falsely stated the
distance from work and filed false travel claims. There was
no less sensitive position to which she could be assigned,
and her dismissal was upheld despite her exemplary past re-
cord. There is no less sensitive position to which to assign
the grievor, and her past record could not be considered
exemplary. The evidence indicated an incident of patient
abuse and a letter of counsel re charting.
In Leisure World Nursing Homes Ltd. and S.E.I.U.. Loc.
204 (1990), 9 LAC (4th) 338 (Brent) the grievor falsified
a co-worker's time card and the dismissal was upheld The
union may raise an issue regarding the clarity of policy at
Queen Street Mental Health Centre. The following passages at
pp. 344-345 in the Leisure World decision are of note
There are some matters which common sense
tells us are so fundamental or basic to the em-
ployment relationship as to make it virtually un-
necessary to have rules dealing with them in order
to discipline employees. For example, would a nur-
sing home have to have a rule prohibiting patient
abuse in order to take disciplinary action agalnst
an employee who was guilty of it? We think not.
. .
There are.. some things which are so neces-
sary to maintain the trust lmplicit in the employ-
ment relationship that reasonable people recognize
them as being essential to the relationship. In
such cases, especially where the understanding of
the employee is also that the action is wrong and
could result in disciplinary action, the employer
does not need to show notice of a specific rule in
, order to discipline .
I
. .
78
.. [the grievor] has declined to acknowledge
the wrongdoing and tried to mislead this board with
a false account. It is therefore all the more dif-
ficult to conclude that the relationship can be re-
established between the grievor and the company so
that the company can trust and rely on the grievor
to maintain the integrity of its time-keeping
records.
It is not necessary to write abandonment of a patient
into a policy. The obligation is inherent in the nature of
what a nurse does. The ability to document and be truthful
to the employer is also inherent. Despite this, documenta-
tion and abandonment are in the policy and the Job Specifica-
tion.
No mitigating factors are present. The list of factors
at pp. 357-358 in united Steelworkers of America. Local 3257
and The Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Re-
ville) are factors which the board indicated a board of arbi-
tration should consider when reviewing the appropriateness of
discipline. The grlevor had been employed 4 to 5 years, du-
ring which time there were two separate disciplinary occur-
rences related to patient abuse, one which preceded December
14, 1993 by two months, and one regarding dubious charting.
She had neither a good record nor long service. One factor
to consider is whether the incident is isolated The fire
was isolated but the grievor's dishonesty was a series of in-
cidents perpetrated three to four times, and on a fifth occa-
sion before the Unemployment Insurance Board and before this
board. Provocation was not present, but possibly the fire
may give rise to the consideration in U.S.W.A., supra
Whether the offense was committed on the spur
of the moment as a result of a momentary aberra-
tion, due to strong emotional impulses, or whether
the offence was premeditated.
There was no evidence of economic hardship. with
respect to the following factor in U.S.W.A., supra:
Evidence that the company rules of conduct,
either unwritten or posted, have not been uniformly
enforced, thus constituting a form of discrimina-
tion
79
the rules are that one cares for a patient and documents
truthfully and is open and honest with the employer. As to
whether the grievor "misunderstood the nature or intent of an
order given", no order had been given, the grievor was oblig-
ed to care for the patient, she was directed specifically to
"come clean" on March 21 and she chose not to and not to take
the opportunity. Regarding "the seriousness of the offence
in terms of company policy and company obligations", all the
offences are serious, wlth a detrimental effect on the hospi-
tal. The grievor did not apologize or try to settle the mat-
ter. Therefore, there were no mitigating factors.
In Paulley/Bechard, 1171/91, 1172/91 (Barrett) it was
determined that further self-serving dishonesty on the part
of the grievor after dismissal demonstrated that she could
not be restored to a position which required honesty. In
paulley the grievor's behaviour subsequent to the dismissal
was determined to be relevant to remedy.
In this case, dismissal was not an excessive response,
but if the panel determines that it was excessive, the grie-
vor's post-dismissal conduct demonstrates that she cannot be
put in a position of trust in this environment. The grie-
vor's lies at the arbitration hearing demonstrated the impos-
siblity of reinstatement.
In Canadian Airlines International Ltd. and I .A.M. .
District Lodge 721, (1992), 24 L A.C. (4th) 389 (Keras) the
grievor refused to admit the offense. The grievor ln this
case did not "come clean" at the hearing regarding her disho-
nesty during the investigation process. The following passa-
ges in Lethbridge (City) and C.U.P.E.. Loc. 70 (1990), 10
L.A.C. (4th) 150 (McFetridge) pp 155, 157-159 are of note:
The collective impact of these contradictions
and obvious lies is significant not only because
the grievor has attempted to minimize the signifi-
cance of his misconduct by alleging it was a momen-
tary response to extreme provocation but also be-
cause his dishonesty is inconsistent with the con-
tinuation of the ongoing employment relationship.
The grievor's conduct during the employer's inves-
80
tigation and the hearing itself seriously jeopardl-
zes his entitlement to have the severity of the
penalty reduced
. . .
The case is, however, less serious than those
involving patient abuse or bus driver assaults on
passengers
. . .
The grievor's refusal to admit responsibility
for hlS misconduct, his unauthorized presence at
Goodyear Tire, and his lies during the employer's
investigation do constitute a form of challenge to
the employer's authority. The grievor's conduct
was extremely prejudicial to the employer's image
in the community. Behaviour such as this reflects
poorly on the public service and the city admini-
stration and fuels negative public reaction concer-
ning the capability of city management to direct
and control the work-force.
. . .
Another important consideration is the grie-
vor's failure to apologize. ... The grievor's only
remorse would appear to be that he was disciplined
for his conduct. ... This attitude is incompatible
with a job that involves regular public contact.
Such an attitude is a legitimate source of concern
to any employer who must maintain a good public
image. . .
Finally, and of major importance in our deci-
sion is the fact that the grievor lied throughout
the employer's investigation into this matter and
under oath during the hearing.
The aggravating factors should also be considered.
The Decision of the Complaints Committee (Ex. 22) should
not be considered; the other evidence is sufficient. No
weight should be given to the Committee's decision; it has no
precedential value. Kowal, 813/88 (Verity) indicates that
determinations by this Board and those of a professional Col-
lege are separate determinations. The decision of the Onta-
rio College of Nurses' Complaints Committee was not a deci-
sion of a discipline committee. There had been no hearing,
no witnesses, no evidence under oath, no cross-examination
The College's process was similar to the employer's investi-
gation The College is a body wholly disconnected to these
proceedings and not connected to the operation of the work-
place. At page 12 of the report there is no reference to any
81
dishonesty beyond the grievor's initial reporting. Further
dishonesty is possibly not relevant to the grievor's license
to practise but it is relevant to her continued employment.
The College did not hear evidence about the grievor's conti-
nued dishonesty The grievor testified dishonestly to this
Board. The functions and concerns of the College of Nurses
and the employer are completely different. The College regu-
lates the nursing profession at a distance and addresses only
two concerns, that nurses meet the standards of practice and
that they have the capacity to practice The employer's
function is to provide front line service to a large body of
vulnerable patients in a very public hospital and to ensure
efficient and safe operation of the facility
The employer's concerns include staff meeting the stan-
dards of practice. The employer's standards go beyond the
nursing standards of practice Another concern is that the
staff must provide comfort, safety and adequate health care
to their patients. Another concern is that charge nurses are
placed in a position of authority, and can supervise, command
respect, and that they exercise their authority during calm
periods as well as during crises. The employer is concerned
that its reputation lS upheld under public scrutiny. It is
also concerned that it be able to place its trust in its em-
ployees to work unsupervised, caring for vulnerable patients,
t performing their jobs efficiently, honestly and with integ-
rity, every day. The College's Complaints Committee report
should be disregarded or given little or no weight.
Ms. Davidson's evidence as to what the grievor told her
occurred when she attended at AB's door is yet another ver-
I sion of what the grievor did Ms. Davidson's evidence indi-
I
! cates that the Board cannot trust what the grievor tells it.
~
,
r Dismissal was the appropriate disciplinary response.
~
[
, If the Board concludes that dismissal was not the appro-
l
,
f priate response, there should be no award of back pay. In
t
t Black, 2248/91 (Dissanayake) although the grievor was rein-
[
, stated, owing to the seriousness of his conduct and "particu-
,
,
,
,
f
,
i
~
I
r
~
;
r
82
larly the fact that he continued his deception right through
to the hearing", he was not awarded any monetary compensa-
tion. Due to the seriousness of her conduct and her continu-
ing dishonesty throughout the hearing, the grievor should not
be awarded any monetary compensation.
This case is about the grievor's failure to meet her
obligations as an R.N. and as a charge nurse. She failed to
meet the basic standards of health care and was repeatedly
dishonest Her conduct was a significant and irreparable
breach of trust Her credibility was in question, and she
had a tendency to lie under oath when it furthered her own
purposes. Her grievance should be dismissed.
For the Grievor:
Ms. Lee made the following submissions:
The grievor is a young and relatively new nurse On De-
cember 14, 1993 she was faced with a horrific situation.
There may have been a lot of things the grievor could have
done, but the evidence indicated how she reacted
The grievor's evidence was that she was shocked and
panicked. At the moment the grievor discovered the fire she
was alone on the unit and responsible for 32 patients. The
grievor ran for assistance to her co-worker, Len Cianfrogna,
and assigned him to look after AB, which was not inappropri-
ate The grievor then set about evacuating the others. Al-
though the employer is arguing that she did not care for AB
or attend to her injuries, the grievor was busy removing
other patients and was not sitting idle or talking in the
hallway. The grievor was the charge nurse responsible on
this shift for all those patients At the first opportunity
the grievor asked the doctor's whereabouts and was told he
was behind her, coming up the hallway. The grievor's evi-
dence was that she told the doctor of AB's injuries and as-
sisted him with treatment
83
Many reports had to be filled out that morning. The pa-
tient's chart was inaccurate, but it was not a statement to
the employer. The grievor did not write the chart for the
administrator The grievor testified that the words "to Ad-
ministrator" across the top of the document (Ex 6, p. 9b)
which had been referred to as a statement were not in her
handwriting The grievor's evidence regarding the patient's
chart is that she was confused and not thinking clearly. Ms
Davidson described the grievor as "nervous". Neither the
grievor nor Ms. Davidson were aware of the employer's policy
which said that she could change the patient's chart later
The grievor attempted to make changes by asking Mr. Majeed
for permission to do so and he did not advise her of the po-
licy. Mr Majeed said he did not remember whether or not he
said he would get back to her, and did not tell anyone that
she had said she wanted to make changes to that document, a
document the employer relied on to dismiss her. The grievor
only wrote one "statement" which was not inaccurate.
The employer never put the inconsistencies in the grle-
vor's statement and the patient chart to the grievor during
the investigation. Mr Sloot's evidence was that he had both
of these before he met with the grievor The grievor's evi-
i dence was that she was not trying to mislead and had not lied
(
, but that she was not thinking clearly
~
r She submitted that in Essex Terminal Railway Co.
~ and
,
~ Teamsters Union (1985). 20 L A.C (3d) 1 (MacDowell) , a case
fc
i. in which an employee was fired for his part in a fire, the
~ arbitrator noted, at p. 3:
f
i
, On the night of the fire, all of the witnesses
~
f were responding to extraordinary and even traumatic
f
f conditions. One would not expect total and consis-
t tent recollections some months later. Inevitably,
f. memory tends to be supplemented, to some extent, by
r
~' rationalization, and there is a natural tendency to
f
, recast events in a favourable light (see the re-
f
! marks of Clement J A. in the Alberta Court of Ap-
t peal in Rimer v Rimer (1980), 119 D.L R. (3d) 579
r at p. 583, [1981] 2 W.W.R 328 at p. 333, 19 C P C
f 197).
!
[
!
[
r
84
Ms. Albrecht said that the employer had not begun an
investigation until it realized the extent of the patient's
injuries and that the investigation into the fire had been
requested by the patient's husband.
Mr. Sloot based his conclusions or opinions in part upon
UG's statement. As UG did not testify, this Board cannot or
should not give much weight to a written statement. When Mr.
Sloot was asked whether the grievor said in her interview
that she panicked, he replied that he did not recall. Mr.
Sloot said that his mandate was not to draw conclusions, but
to just gather information. He said that it was not an accu-
satory but rather an investigative process. Mr Sloot also
said that the normal process for a fire investigation is for
the fire marshall in the hospital to launch the investiga-
tion, but that in this case he did an investigation at the
instruction of the Administrator, who requested one at the
insistence of the patient's family.
Ms. Kutty's evidence regarding UG was hearsay. Ms. Kut-
ty said the investigation was recommended after learning of
AB's condition. She referred to a 40-minute delay between
the fire and the transfer of the patient and that somehow
this should be attributed to the grievor's delay in dealing
with this matter. Ms. Kutty did not know how long Dr Harri-
son or the paramedics were on the Unit dealing with AB and
others. The grievor's actions cannot be dealt with alone,
many other professionals were present on the unit. Ms. Da-
vidson testified that Ms. O'Hara had to find more saline for
the paramedics to use in caring for AB.
When Mr. Majeed was asked whether he discussed the in-
vestigation with staff, he said that he might have mentioned
it to them. When he was asked whether he told the grievor he
would get back to her about changes to her documentation, he
said that he did not remember. When he was asked if the
grievor said that she panicked, he said that he did not re-
member, that he was not sure Mr Majeed did say that the
grievor knew her nursing skills
85
Ms. Albrecht sald that in the March 21 meeting, the
grievor said "no" when she was asked whether she pulled the
patient from her room. Ms Albrecht said that she could not
recall whether in that meeting the grievor said that she had
not been thinking clearly. Ms. Albrecht said she could not
recall whether she was aware that the grievor had wanted to
change the chart. Ms. Albrecht did not advise or warn the
grievor that she could be disciplined or dismissed.
Mr. Cianfrogna said that AB appeared calm and said she
was "ok", that the grievor was evacuating others, that he had
a good relationship with the grievor and trusted her, and
that he was able to provide First Aid, the same as if he was
an R.N.
The grievor's evidence was that she was shocked and
panicked when she discovered AB in flames The grievor felt
that she could not handle AB alone. She evacuated other pa-
tients, unassisted at first. She told Dr Harrison about AB
and assisted him with her care. She wrote in the chart a few
hours after the fire. Her evidence was that she was confused
but never intended to mislead, that she wanted to make chan-
ges to that chart, but wasn't aware that she could. She
would not have asked for permission to change the chart if
she had not wanted to change it. The grievor was not advised
that the March 21 meeting was a pre-disciplinary meeting, and
Ms, Kutty told the grievor that it was not. The letter of
dismissal (Ex. 1) indicates that the March 21 meeting was a
"predisciplinary meeting".
The grievor's evidence was that she did not mislead the
unemploYment Insurance Board of Referees. The grievor's eVl-
dence should be preferred over the Board of Referees' deci-
sion, a written document, which should be given little or no
weight. The author of the document was not called to testify
as to what was meant. The grievor said that she told them
that she panicked and that she had written an inaccurate
statement of events in the patient's chart.
86
The employer maintains that the grievor continued to lie
about her actions on the December 13-14, 1993 shift and it
maintains that the grievor maintains that she told the em-
ployer the truth from the beginning The evidence indicated
that the grievor told Mr. Majeed within a day or two of the
incident that she wanted to change her documentation, and
that she told Ms. Davidson about her incorrect documentation
some hours after the incident.
The grievor cannot explain why the summary of the inves-
tigators' interview with her does not reflect her account to
them of what occurred. The grievor neither wrote the summary
nor reviewed it for accuracy. The grievor also told the em-
ployer again, in the March 21 meeting, that she did not pull
AB from the room. If the Board accepts that the grievor only
told the employer for the first time at the March 21 meeting
that she did not pull AB from the room, the grievor still
disclosed her incorrect statement before the decision was
made to dismiss her. The March 21 meeting was the grievor's
second meeting with the employer over the incident.
The employer has tried to portray the grievor as an un-
caring person who showed no remorse; the employer asked a
number of witnesses about the grievor's demeanour in the
March 21 meeting. The grievor testified that she does not
show her emotions, and keeps them inside. The fact that she
does this does not mean that she felt no remorse. The grie-
vor took advantage of the stress counsellor's services to
discuss her feelings.
Despite the employer's submissions as to the content of
UG's statements, UG did not testify. In submissions, counsel
for the employer had at times misstated the evidence. If the
additional documentation referred to by the employer which
was not produced had been important, it would have been pro-
duced. Contrary to the employer's submisslon, the grlevor
indicated that she had worked two 12-hour shifts back-to-back
in the context of trying to determine when the meeting took
.
87
place and not to suggest that the meeting had taken place
between those shifts
Mr. Sloot already had the grievor's statements and re-
viewed them before meeting with the grievor The submission
that the grievor gave a statement in a sealed envelope at the
March 21 meeting was "impossible" The grievor's evidence
was that she gave her statement to Mr Majeed. The investi-
gators had the grievor's second statement before the March 21
meeting.
Several of the cases relied upon by the employer dealt
with discipline arising out of findings that the grievors had
perpetrated acts of patient abuse. The grievor had not been
dismissed for patient abuse. The board in Oshawa General,
supra, indicated that its findings might have been different
if the grievor had inadvertently made a mistake peterbo-
rough Civic, supra, involved a premeditated act. In Dain,
supra, the grievor lied to get a job and the arbitrator indi-
cated he would have reinstated the grievor if a less sensi-
tive position could have been found for her. In Leisure
World, supra, the grievor denied any wrongdoing. In this
case the grievor admitted that what she did was wrong.
with reference to the list of mitigating factors in
Steelworkers, supra, the grievor in this case had one letter
of reprimand, which was a minor form of discipline. The
grievor was never counselled or advised about problems in her
work or attitude and Mr. Majeed said she knew her nursing
skills. The grievor did not find a permanent full-time posi-
tion and has worked for a temporary agency since she was
dismissed She "came clean", if at no other time, at the
March 21 meeting. She was not given an opportunity to
explain her actions with the knowledge that her job was in
jeopardy.
The employer submitted that the decision of the Com-
plaints Commlttee of the College of Nurses be given no weight
, but that the decision of the Unemployment Insurance Board of
~ Referees be given weight. The College Complaints Committee
1
r
i
I
I
r
~
r
f
!
88
held no hearing because it decided not to refer the matter to
the Discipline Committee If the College had issued discip-
line or had suspended the grievor's license, the employer's
argument would be that the decision should be given weight.
The Complaints Committee's decision should be given some
weight, as it is the governing body whose regulations the
grievor is alleged to have breached
Ms Stuart, the Hospital Administrator who made the
decision to dismiss the grievor and authored the letter of
dismissal, was not called to give evidence on her decision.
Ms. Stuart never met with the grievor directly and her con-
siderations in making that decision, the documentation she
relied on, and the information she was aware of is not in
evidence. The evidence did not establish whether Ms. Stuart
knew that the grievor tried to make changes to the patient's
chart or that the grievor admits that she panicked that
night, and whether any of that information would have changed
her decision.
The mitigating factors are so persuasive and compelling
that this board should exercise its discretion and reduce the
penalty In Thomson, 1794/90 (Kaplan) the grievor, an un-
classified CO, used Ministry stationary for a reference let-
ter, and the discharge was not upheld. In that case the
board considered nine mitigating factors (p. 10, supra) :
1. Bona fide confusion or mistake by the grievor
as to whether he was entitled to do the act com-
plained of;
i
2. The grievor's inability, due to drunkenness or
emotional problems, to appreciate the wrongfulness
of his act;
3. The impulsive or non-premeditated nature of
the act;
4. The relatively trivial nature of the harm
done;
5 The frank acknowledgment of his misconduct by
the grievor;
89
6 The existence of a sympathetic, personal mo-
tive for dishonesty, such as family need, rather
than hardened criminaltiYi
7. The past record of the grievori
8. The grievor's future prospects for likely good
behaviour
9. The economic impact of discharge in view of
the grievor's age, personal circumstances, etc.
The grievor's emotional shock at the time satisfied that
the second factor The third factor, "the impulsive or non-
premeditated nature of the act", is present Regarding the
fourth factor "the relatively trivial nature of the harm
done", the grievor cannot be held responsible for the pa-
tient's death. The fifth factor "frank acknowledgement of
misconduct" is present, because the grievor did acknowledge
her misconduct. The sixth factor, a sympathetic or personal
motive, was not present. The seventh factor, the grievor's
past record, indicates one letter of reprimand for an unre-
lated matter. The eighth factor, "the grievor's future pros-
pects for likely good behaviour" is present Regarding the
ninth factor, "the economic impact of discharge in view of
the grievor's age, personal circumstances, etc. " the grievor
,
is young, just starting her career and it could be jeopardi-
zed by this dismissal.
The inaccurate report was not premeditated but was done
in the heat of the moment. The grievor immediately tried to
correct her mistake. The grievor is being blamed for the
delay in responding to a patient in crisis
The employer has stated that every second counts in a
fire. At the time of the fire, patients' rooms were only
equipped with heat detectors. If the room had had smoke
detectors, the grievor would have been alerted sooner, and
perhaps the fire would not have escalated to the point it
reached, and perhaps the grievor would have been able to deal
with the situation The Fire Investigation Report (Ex. 14)
90
concludes that earlier detection would have occurred lf the
room had been equipped with a smoke alarm
The only evidence regarding the allegation that the
grievor did not respond as soon as possible (asserted in the
letter of dismissal) is that when advised, she finished a
sentence, a 2- or 3-second delay, and responded. with regard
to the other ground, that she abandoned a patient in serious
distress and danger of life, the grievor panicked. We do not
know how any of us would react. The grievor's response was
not intentional. The College of Nurses concluded that this
was not strictly speaking an "abandonment". with respect to
the ground that the grievor's initial reporting was false,
the grievor admitted that the patient chart had not been
accurate, that she did not do this to mislead or cover up,
and she tried to correct the mistake quickly. with respect
to the allegation that she provided false and contradictory
information throughout the investigation, the grievor's evi-
dence is that she told the investigators the truth, that
faced with the situation of the patient in flames, she ran
for help, and in the confusion hours later she wrote an inac-
curate report in the patient's chart and she made a mistake.
The grievor should therefore be reinstated with full
back pay and interest and benefits and the board should re-
main seised wlth respect to implementation.
Reply of the Employer:
Mr. Kramer submitted the following in reply
Only one patient on the floor sustained serious injury
durlng the fire. The employer does not suggest that the
grievor can be all things to all people. Quite a few staff
carne to the floor to assist, who were all qualified to evacu-
ate patients. The grievor was the only R N. to have any ink-
ling of the kind of injuries AB had incurred The grievor
asked Mr Cianfrogna to tend to AB in her room and there was
no opportunity to discuss the kind of care AB needed The
91
grievor delegated a nursing responsibility to an R.N.A. Mr.
Cianfrogna is not qualified to give the same kind of care as
an R.N.
Patient charts and memos are both required to be accu-
rate and the submission that the patient chart was not a
statement to an employer is a meaningless distinction. The
fact that the top of Ex. 6, P 8 is not in the grievor's hand-
writing does not remove it from consideration, as the materi-
al below the top entry is written by the grievor.
Mr. Majeed did remember what he said to the grievor He
said that she could not remove what was there, but could add
to it.
The grievor made four oral and written statements. The
first was an account on the patient's file, the second was an
unproduced nursing note which was a copy of what was on the
patient's file, the third was a statement given during her
interview with the investigators, and the fourth was an un-
dated statement, which he described as "the one true one,
which omits mention of UG" (Ex. 6, p9c-e).
The Essex case, supra, is inapplicable to this case,
because the timing of the grievor's statements in this case
is different from the timing of the statements of the grievor
in Essex. Although the union is alleging that the grievor
had not been warned of a pre-disciplinary meeting, the grie-
vor indicated that she would not have conducted herself any
differently if she had known the nature of the meeting.
The grievor changed the report to reflect what she knew
she ought to have done. This was a significant falsehood.
The grievor's evidence as to her knowledge of how to
amend records requires the board to believe that in her four
to five years at the Centre she was never required to make a
change or an addendum to a patient file.
The board should consider why Mr. Majeed would hold back
on the grievor having disclosed, as she alleges, two days af-
ter the incident, and consider why Mr Sloot and Mr. LaRose
would lie, and why all four witnesses including the union
.
92
representative would lie as to what happened. It is not
probable that they would have lied.
The employer wants the board to consider the totality of
reasons for the grievor's dismissal. The grievor's behaviour
may have been inadvertent, but her dishonesty was not, at
least on every occasion but the first.
The declsion of the Board of Referees should be given
weight because it goes to credibility and because the College
decision does not
Ms. Stuart is a figurehead who sits at the top of an
organization and is not intimately involved in all personnel
decisions. Delegated employees, Ms. Albrecht and Ms Kutty,
carry out delegated functions. They were the de facto deci-
sion makers and had all the facts in front of them.
As far as the employer is concerned, the grievor's panic
at the time of charting never happened.
with respect to the mitigating factors referred to by
Ms. Lee, emotional problems do not cover dishonesty, the
grievor did not make a frank acknowledgement of her miscon-
duct, there was no evidence of economic disadvantage resul-
ting from this dismissal and few mitigating factors remain to
be considered. Blameworthiness is not an issue. The only
delay that matters is the time between the discovery of the
patient and the time that she was removed from the burning
room. As between the evidence of the grievor and six other
individuals, the board must decide who is telling the truth,
and why they are not telling the truth.
The Panel's Findings:
The evidence was difficult and troublesome In order to
determine whether dismissal was appropriate, what the
evidence established as well as what it did not establish
must be determined.
~
93
The Time that Events Occurred and the Grievor's Response
Time:
There was no evidence that all or any of the clocks on
the wall in the Centre are accurate or synchronized As a
result, we conclude that all times stated in reference to the
clocks in the Centre were approximate at best, and may be as
much as 5 minutes off the time indicated in testimony and
documents.
The evidence did not establish when the fire started and
how long it had been burning when UG first heard noise coming
from AB's room. It did not establish the amount of time that
transpired from the time UG first heard noise, or screaming,
from AB's room until the time she reported it to the grievor.
The occur~ence report (Ex. 6, p 26a) says simply that a
"Code Red was called" at approximately 2:55 a.m. The evi-
dence did not establish when the switchboard received the
signal from the heat sensor on the fourth floor. It did not
establish whether the statement that "Code Red was called"
means that person at switchboard announced a Code Red on the
P.A. system at 2:55 am., or that s/he received the signal at
2:55 a m. and announced "Code Red unit 4" over the P A sys-
tem shortly after 2 55 a.m.
The Hospital's policy and procedure with respect to what
is immediately required of nurses and nursing assistants who,
while alone, unexpectedly discover a patient in flames, and
who do not have with them at the time of discovery equipment
with which to smother the flames was not clarified We un-
derstand that the minimum expected response is to cause a
fire alarm to ring immediately, or as soon as possible. The
evidence did not establish whether rescue techniques were
part of the annual fire procedure training, and if so, what
staff were trained to do. It did not clarify what, if any,
cigarettes, matches and/or lighters, patients are permitted
in their rooms, and if they are prohibited, the security mea-
sures to ensure that prohibited items are not in patients'
94
rooms, and to whom the responsibility for the enforcement of
such measures is delegated
The amount of time that passed between the time the
grievor summoned Mr Clanfrogna and the time he looked at the
clock which indicated 2:50 a.m. remains unknown. Mr. Cian-
frogna's written statement (Ex. 6, p l1a) indicates that he
occasionally left the treatment room to check the time, which
suggests that there was no clock in the treatment room, that
he had no watch, and that he looked at a clock after the
grievor called him and after he left and was outside of the
treatment room. The evidence raises the possibility that the
grievor may have summoned Mr. Cianfrogna moments before 2:50
a.m , and as long as one or two minutes before 2:50 a.m
Mr. Cianfrogna did not testify that he advised the grie-
vor that there were no blankets. The evidence did not clari-
fy whether Mr. Cianfrogna in fact knew there were no blan-
kets, whether he went to check, whether he told the grievor
that there were no blankets, and whether any discussion en-
sued between them over that. No disrespect is intended to
either Mr. Cianfrogna or the grievor in noting this; they
were not asked about it ln detail. However, this leaves the
issue of delay and to what it was attributable, as well as
the completeness and credibility of the evidence from both
the grievor or Mr. Cianfrogna in an uncertain state. If
there were no spare blankets, why were there none? Did Mr.
Cianfrogna and/or the grievor spend any time looking for a
blanket or any other throw, such as a sheet, to smother the
flames? with deference to the undisputed fact that Mr. Cian-
frogna pulled AB from her room, the amount of time which
passed from the time the grievor called Mr. Cianfrogna until
the time he reached AB's room, presumably without any fire-
smothering equipment, and pulled AB from it, and what caused
the flames to expire lS not known.
The fire occurrence report (Ex. 6, p 26a) states that
the Code Red was announced at approximately 2 55 a.m. We
therefore find, on all the evidence and on balance of proba-
95
bilities, that within a few minutes either way of 2 55 a m
Mr Cianfrogna and AB were approaching the Clean Room, 423,
when Mr. Cianfrogna heard the Code Red announced. We do not
know the time of arrival of the firefighters and the parame-
dics, and whether the paramedics arrived at the same time as
the fire fighters.
Mr Clanfrogna recalled that Dr. Harrison arrived on the
unit by elevator at the dining room and that he called AB and
told her they would go to the treatment room, and that he,
AB, the grievor and the doctor walked there. The grievor re-
called that she first saw the doctor coming up the corridor
from the South pod and took him to the dining room, from
where they escorted AB to the treatment room. The evidence
provides no other assistance as to when, where and how Dr.
Harrison actually arrived, and when and where he first ap-
peared to the grievor. In the absence of any specific evi-
dence on the subject, the panel cannot assume that the eleva-
tors ceased to function once the Code Red was announced. Mr
Cianfrogna has no apparent reason to dissemble. On the other
hand, the grievor has no apparent reason to dissemble on this
collateral issue. Her differing recall does not particularly
enhance her conduct.
It must be remembered that the grievor, Mr. Cianfrogna,
and Ms Davidson were testifying to events that had occurred
over 15 months prior to the date upon which they gave their
evidence, events that were both extremely stressful and un-
pleasant for them both. It is likely that the passage of
time has affected the accuracy of their recall in some areas,
and that it need not necessarily be concluded that in all
cases where their evidence does not correspond, that one of
them, particularly the grievor, is dissembling. In the ab-
sence of evidence from Dr Harrison, the issue of where he
entered the floor and how long he had been on it before the
grievor asked him to see AB, will remain a mystery and we can
draw no conclusion as to credibility from this evidence
The evidence did not clarify whether Mr Cianfrogna had
96
sufficient training to recognize shock and second degree
burns in a burn victim, what constituted a formal assessment
by a PNA, what observations he made in the formal assessment
he testified he had done of AB (as distinct from the observa-
tions he made in Dr Harrison's presence), and what, if any,
duty he had to convey his observations of AB's condition to
the grievor before Dr. Harrison's arrival.
The Sloot/LaRose summary of their interview with Night
Nursing Coordinator JoAnn O'Hara (Ex. 6, p 16) indicates that
Ms. O'Hara arrived on the 4th floor before the fire depart-
ment arrived and directed the firemen to AB's room, that AB
was sitting in a wheelchair in the dining room, breathing,
but shaky, and that Ms. O'Hara did not examine the extent of
AB's injuries Ms. O'Hara did not testify The Fire Mar-
shal's Fire Investigation report (Ex. 14) describes AB sit-
ting in the dining room on a couch "wrapped in a blanket" and
that "it was quickly determined that she had been burned in
the fire and an ambulance alarm activated". The amount of
time, if any, that transpired between their arrival on the
floor and their observation of AB, and between their observa-
tion of AB and the call for an ambulance and the arrival of
the ambulance was not established.
The evidence did not clarify whether covering AB's body
with hospital gowns was appropriate immediate treatment and/
or whether this affected her recovery. It did not establish
whether the application of wet towels on AB's body parts not
covered by the gowns was appropriate post-burn treatment and/
or whether this affected AB's recovery. Knowledge of the ap-
propriate emergency treatment for severe burn victims and of
how to administer that treatment is highly specialized The
evidence did not establish that the grievor or other Centre
staff had had any recent training in that particular treat-
ment. It indicated that there was a supply of normal saline
on the floor and that the paramedics applied it to the pa-
tient. If that was the correct treatment, the evidence did
not establish why neither the doctor nor the grievor adrninis-
97
tered it, and suggests that the fire and occupational health
and safety programme and the Centre staff may benefit from
information and training on this subject
In view of the foregoing, the panel concludes that the
grievor was no more remiss than any other health professio-
nals at the Centre who were or became aware that AB had been
burned by fire in respect of assessing her burns and provid-
ing appropriate first aid.
UG's Statement(s):
Five written versions which purport to state what UG
said on four different occasions to different people regard-
ing what occurred and what she observed the morning of the
fire, including her own movements, were admitted into evi-
dence:
1. Memo from Ms. O'Hara to Ms Schliemann dated
December 18, 1994 (Ex. 4, and Ex. 6, pp. 18a - b)
2. Mr. Sloot's and Mr LaRose's statement of Ms.
zymantas' statement in January of 1994 of UG's statement in
December, 1994 (Ex. 6, P 21).
3. Mr. Sloot's and Mr. LaRose's statement of their
interview with UG, exact date unknown, signed by U.G. on
January 11, 1994 (Ex 6, pp 7a - b)
4. Ms Kutty's Memo to Ms. Albrecht dated January
26, 1994 (Ex 5, and Ex. 6, p 22).
5. Ms Albrecht's Memo to Mr. LaRose and Mr Sloot
dated January 27, 1994 (Ex. 6, P 23)
None of them indicate the date of the conversations with
UG referred to therein. The evidence did not disclose the
date in relation to December 14, 1993 of Ms. Kutty's conver-
sation with UG. It did not disclose the state of patient
UG's mental health and cognition on the morning of the fire
and her degree of cognitive acuity and memory on the date of
that conversation It did not clarify what was meant by the
patient UG having "informed" Ms Kutty "in her own way". It
98
did not disclose whether the manner in which UG spoke to Ms
Kutty was direct, matter-of-fact and to the point, or ramb-
ling and discontinuous or somewhere in between, and/or whe-
ther Ms. Kutty had to piece various parts of a conversation
with UG together.
Ms. Kutty indicated that she first heard that the events
on the ward were not as she had understood them in reference
to Ms. O'Hara's Memorandum dated December 18, 1993 (Ex. 4) .
We conclude, therefore, that Ms. Kutty did not learn of UG's
statement untl1 December 18, 1993 or subsequently, and that
she did not interview UG until some time after December 18.
The date upon which her conversation with UG occurred is of
some significance. Along with information as to the fre-
quency with which UG discussed the events with others, and
the circumstances of those discussions, the date might pro-
vide some basis to assess the reliability of the narration UG
provided to Ms. Kutty
Ms. O'Hara's Memo to Ms. Schliemann dated December 18,
1993 (Ex. 4 ) stated that she "believed" that UG "again came
back to the nursing station to advise the patient needed to
be assessed". This statement raises the possibility that on
December 18, 1993, Ms. O'Hara was not certain that UG had
attended at the nursing station more than once. Again, Ms.
O'Hara did not testify
Although the documentary and oral evidence of UG's
statements were basically consistent, each differed to some
extent in content, omitting and/or adding detail. These dif-
ferences suggest that UG's memory and accounts of the events
of that evening could have been affected by the emotional im-
pact of the events themselves, and/or by the passage of time
between the events and/or other unknown intervening circum-
stances.
Hearsay evidence is admissible in administratlve pro-
ceedings, subject to the test of weight and reliability. It
cannot be used, however, to establish the very impropriety,
or alleged impropriety, upon which discipline is predicated,
99
except in the rarest of circumstances, such as where, in an
institutional setting, a victim/complainant of abuse or neg-
lect is extremely vulnerable emotionally, and/or there is no
dispute that the abuse or neglect occurred. This case does
not meet that exception.
We appreciate that UG's statements may have appeared
consistent and reliable to the Centre's administrators, and
that they raised serious concerns about the grievor's conduct
on the night in question. However, subject to the above ex-
ception, principles of procedural fairness require that a
grievor be given an opportunity during an arbitration hearing
to confront the source of the accusations against him or her
directly, and to verify and test that person's statement, in
this case UG's statements, through cross-examination. In the
absence of direct evidence from UG, this board is unable to
give weight to the various re-statements of UG's statements
and is obliged to accept the grievor's evidence as uncontra-
dicted, that UG approached her once.
The panel neither implies nor intends any criticism of
the employer's decision not to call UG as a witness Fur-
ther, the panel draws no conclusion as to the accuracy of the
hearsay evidence regarding UG's statements to the various
witnesses from the fact that she did not testify.
What the Grievor Did and Failed to Do After Discoverin9 the
Patient in Flames:
The evidence disclosed a set of only partly explained
circumstances which resulted in the grievor being the only
staff person actively on duty on the floor in the period
after approximately 2:35 a.m. when Mr. Cianfrogna returned to
the treatment room This occurred on a shift when there was
minimal staffing on the floor It also occurred on a ward
where patients are formally permitted to smoke only in the
smoking lounge, the last cigarette of the day is provided at
11 pm, but where smoking is known to the staff to occur in
100
the rooms, and where a patient [UG] was permitted to smoke in
the lounge at 2:25 a.m
Under these circumstances, it is difficult to imagine
Mr. Cianfrogna and Ms Davidson not feeling that their ab-
sence from the ward, which the grievor may have permitted
them as a favour out of friendship and professional camara-
derie, contributed to the fact that the grievor was alone on
the floor when she discovered AB in flames and to all of the
events that ensued, including AB's tragic death and the grie-
vor's dismissal.
The rooms in the unit were not equipped with smoke
alarms on December 14, 1993 The Fire Marshall's report (Ex.
14) indicates that in view of the planned retrofit programme,
an inquest was not recommended. It is difficult to imagine
that administration, in not having installed smoke alarms
earlier, did not feel to some extent contributory to the
events of the morning of December 14, 1993 and to the ulti-
mate and tragic loss of a patient.
The grievor conducted herself at the undoubtedly stress-
ful arbitration hearing before this panel with dignity and
little show of emotion There can be little doubt that when
she discovered the patient AB in flames, she was horrified at
the sight (who would not be?) and knowing that she had noth-
ing with her to smother the flames, she panicked. She re-
gained herself sufficiently to run and enlist the aid of the
nearest staff member, Mr. Cianfrogna. She evacuated patients
and directed them to the safety of the dining room, and said
that as she was about to turn the key in the fire alarm box,
the heat sensor set off an alarm The evidence is clear that
the grievor did not phone an ambulance immediately for AB,
who, by her own evidence, she had seen in flames, and did not
communicate to Ms. Davidson and other health professionals
who responded to the Code Red before Dr. Harrison arrived,
that AB had been in flames
Mr. Cianfrogna's evidence was that he told the grievor
that he would take care of AB. The grievor's evidence was
101
that it was the first time she had ever seen a "real live
fire" and she panicked Her evidence was that she asked Mr
Cianfrogna "what about M and S", that she did not assess AB
and did not call an ambulance for AB immediately after Mr
Cianfrogna left to attend to AB, that she asked Ms. O'Hara
who to send with AB rather than suggesting to her who should
accompany AB, and that she was running back and forth from
the treatment room to the nursing station. Ms. Davidson's
evidence was that at about 6 a.m the grievor asked her to
write a report. We conclude from the foregoing that the
grievor remained in a state of shock and horror, and in a
state of impaired judgment, for a much longer period than she
believes and testified to.
We conclude that although the grievor was able to func-
tion in a charge nurse role on a limited basis for the rest
of her shift, she remained in a state of shock and horror for
several hours after discovering AB in flames, and that for
reasons that only mental health professionals are qualifled
to determine, she is unable to realize, accept and acknow-
ledge that fact. We conclude that the shock and horror of
encountering AB in flames and her inability, in the circum-
f:
i stances, to do anything for AB except run and obtain Mr.
Cianfrogna's help, impaired her ability to establish other
appropriate priorities immediately, and impaired her pro-
fessional judgment at times for the rest of the shift
The grievor's inability to realize, accept and acknow-
ledge that she is only human, and not perfect, and was not
entirely in charge of herself or anyone else for the balance
f of the shift, is evidenced both in her statement that she
[
t panicked, but only for a minute, and in her tendency to dis-
f
f: tort the extent to which she remained in charge of herself
I
r
r and others. We conclude that the grievor did not give Mr.
f.
r Cianfrogna a "directive", but rather, she accepted his offer
f
r to take care of AB, and took up his suggestion that she eva-
f
l cuate the other patients, and that she thereafter became pre-
~
! occupied with the evacuation of the patients. We conclude
,
!
f
t
1
f
!
I
102
that the grievor, in a state of impaired judgment due to
lingering shock and horror, failed to delegate responsibility
for the evacuation to others, and failed to establish patient
AB as her priority and attend to her until Dr Harrison
appeared.
We recognize that no one knows how they or anyone else
will react in a crisis until it is upon them, notwithstanding
training for various emergencies We also recognize that de-
nial is a common feature of human behaviour. An individual's
denial(s) may accurately represent the truth, may be a deli-
berate and conscious self-protective 11e, or may represent
his or her sincere but mistaken belief as to events or beha-
viour. In the latter case, denial is a function of the per-
son's inability to cope with objective reality for a wide
range of psychological reasons. As such, it does not always
represent conscious fabrication or deliberate dishonesty
The evidence does not support the suggestion that either
the standards of nursing or the job specification require a
nurse who is alone and without fire-smothering material imme-
diately available, and who discovers a patient in flames up
to her waist and shoulders, to risk her own health and safety
to rescue the patient immediately Although commendable and
desirable, acts of heroism are not part of the job specifica-
tion or the standards of nursing.
However, there is little doubt, and we conclude on the
evidence before us that the grievor did not respond as
quickly as possible to UG's efforts to alert her to AB's
distress, and that she did not activate the fire alarm and
did not assess AB's condition as promptly as she should have
and as promptly as the circumstances required. These were
serious lapses on her part and they constituted a failure to
carry out the duties expected of her as both as an R.N and a
charge nurse. We are unable to conclude, however, on all the
evidence, that she "abandoned" the patient
103
The Grievor's First written Statement (Ex. 6 , P 9b):
It was not in dispute that the grievor made an incorrect
entry on the patient record and in her first written State-
ment (Ex. 6, p 9b). The first issue to be determined is whe-
ther she deliberately falsified a record.
Ms. Davidson testified that at about 6 a.m. she wrote a
document at the grievor's dictation, which the grievor
signed. That document was not produced or ldentifled in evi-
dence. The grievor did not mention this event in her evi-
dence. We can conclude little from this. It is possible, on
the nature and quality of the evidence before us, that Ms.
Davidson's recall is correct, and that the grievor delibe-
rately avoided mentioning this in her evidence It is equal-
ly possible that it is correct and that the grievor simply
forgot the occurrence when she testified. It is also pos-
sible and that Ms. Davidson's recall was incorrect and the
grievor did not dictate a document to her that morning. In
the absence of evidence as to the document's contents, or
that it was the document identified as the grievor's first
written statement (Ex. 6, p 9b), we cannot conclude that the
grievor caused Ms. Davidson to write a false statement.
The grievor did not dispute that the narration in Ex 6,
p 9b was in her own handwriting or that she wrote the origi-
nal of it on December 14, 1993, and did not say that it was
reproduced inaccurately. Consequently, the evidence that she
did not write thr narrative statement on Memorandum station-
ary and that someone else wrote in "To: Administrator" in
their own handwriting, is tangential at best We conclude
that the text on p 9b of Ex. 6 is an accurate reproduction
of what the grievor wrote toward the end of the shift on
December 14, 1993. We are unable to conclude however, that
the grievor's evidence as to the difference between the ori-
ginal and the copy that appears at Ex. 6, p 9b represents an
intention to deceive or mislead us
104
The evidence established no apparent motive on the part
of the grievor to misrepresent who had pulled AB from her
room. There is no evidence that she received and/or enjoyed
praise or avoided immediate criticism as a result of having
stated that she, rather than Mr Cianfrogna, had pulled AB
from the room. Thus, the evidence did not establish that she
derived, or expected to derive, or would have derived any
benefit from deception on that issue. It is clear that the
misstatement would have become glaringly obvious in a short
period of time, and that if she maintained it, the grlevor
would stand to quickly lose the respect of her colleagues
The grievor demonstrated little insight into her own
conduct. We observed that at times she had difficulty ex-
pressing herself and communicating clearly. She did not
strike us as unintelligent, and we find it improbable that
she failed to realize that such an obvious misrepresentation
would be detected quickly and that she would be criticized
professionally for having made it We accept that she dis-
closed the misstatement to Ms. Davidson the morning of the
fire. We therefore conclude, on balance of probabilities,
that the grievor inadvertently misstated in Ex 6, p 9b the
identity of the person who pulled AB from her room on the
morning following the fire, probably from an unconscious wish
that she had been the one to have done so.
The Grievor's Inquiry as to How to Amend:
Ms. Davidson testified that the grievor disclosed to her
on the morning of the fire that she had charted incorrectly.
The grievor did not testify to that having occurred.
The documents and oral evidence established that the
grievor wrote that she pulled AB out of the room in the cli-
nical notes on the patient's chart and other documentation,
e.g her first written statement (Ex. 6, p 9b) We are dubi-
ous of the grievor's evidence that she did not know how to
amend a clinical record However, we also find it doubtful
105
that paragraph 13 of the policy and procedure manual (Ex 24)
applies to the amendment of reports to administrators We
conclude that the apppropriate and common-sense method of
amending misstatements in reports to administrators would be,
immediately upon recognition or realization of an error, to
write a second report to the administrator, indicating at the
outset that its purpose is to correct a misstatement in the
earlier one, and to speak to the appropriate administrator,
and having done so, amend the clinical records in the manner
stated in paragraph 13 and also write the correct information
on any available space near the incorrect and stroked-out en-
try We conclude that the grievor applied neither the poli-
cy and procedure manual nor common sense, and did not make
the appropriate amendments in a timely manner.
Having said that, the grievor's and Mr. Majeed's evi-
dence establishes that the grievor spoke to him about amen-
ding her documentation In view of Mr Majeed's evidence
that the grievor spoke to him on this subject "quite a few
days after the fire" and the grievor's evidence that she
spoke with him a couple of days after the fire, the panel
concludes, on balance of probabilities, that she spoke to him
within a week of the fire. The grievor did not initially vo-
lunteer in her evidence that she had told Mr. Majeed what she
wanted to change, but only that she "wanted to add basically
to the charting". In answer to a question from her represen-
tative as to what she wanted to add, she offered that she was
thinking about having omitted mention of the blue lighter Ms.
O'Hara had found Only with some encouragement to expand did
the grievor say that she told Mr. Majeed that she had written
that she had pulled the patient from the room when Mr. Cian-
frogna had done that. We find that statement doubtful. Had
she said that to Mr. Majeed, it is likely that she would have
volunteered that fact earlier in her evidence and that it
would have struck Mr Majeed, and that he would have recalled
It. We conclude that the grievor was less than frank at that
-
point in her evidence and that she overstated the degree of
106
clarity with which she communicated to Mr. Majeed what she
wanted to amend. The manner in which she gave her evidence
did not enhance her credibility on this point
We conclude, on balance of probabilities, that the grie-
vor wanted Mr. Majeed to instruct her as to how to amend both
her clinical notes and her various reports, and that, on his
evidence, Mr. Majeed was not particularly clear as her Head
Nurse as to how she could go about effecting the amendments.
To be fair to him, the grievor was not, we find, clear as to
what in particular she wanted to amend and the gravity of the
misstatement. On the other hand, as her Head Nurse and su-
pervisor, and in view of the seriousness of the incident as a
fire, there was some obligation upon him to ask her to be
specific, so that he could give her specific instructions or
find out the appropriate method. Life is full of missed
opportunities. In view of para 13 of Ex 24, the Policy and
Procedure Manual, and in view of the fact that Mr. Majeed was
the grievor's Head Nurse and she was obviously looking to him
for guidance, we are puzzled at Mr Majeed's indication that
he told the grievor that she could not amend what was in the
file, but could make a statement, a late entry, and was no
more specific than that.
The Grievor's Second Statement (Ex. 6. p9c-e):
Mr. Cianfrogna's and Ms. Davidson's evidence was that
shortly before the Sloot/LaRose lnvesigation began, i e.
shortly before January 11, 1994, Ms. Schliemann asked them to
provide a written account of their locations and activities
on the floor between midnight and 3 a.m. The grievor recal-
led that Ms. Schliemann asked her to provide such an account
before Christmas of 1993. We conclude, on balance of proba-
bilities, that Ms. Schliemann asked the grievor to provide a
statement at about the same time as she asked Mr. Cianfrogna
and Ms Davidson to do so The evidence does not establish
clearly when Mr. Sloot and Mr. LaRose received the grievor's
107
second statement. We know that it was in their possession by
February 18, 1994 when they submitted their report
The grievor's undisputed evidence was that she delivered
her second written Statement to Mr MaJeed and that he opened
it with her permission. Mr Majeed did not testify on this
subject. The delivery trail stops cold there
As Mr. Sloot indicated that he had Mr. Cianfrogna's
statement before he commenced the interviews (January 11,
1994) and as Ms. Davidson's statement is dated January 12,
1994, it seems more probable that the grievor prepared and
delivered hers at about the same time as they did, than that
she prepared it after having been interviewed. In mid-Janu-
ary, as no one had spoken to her about UG's statements, she
had no reason to believe that administration was concerned
that she had been deceptive with respect to the number of
times UG had approached her. At that point, Ms Schliemann's
request that she submit a second statement provided her an
opportunity to amend her statement that Mr. Cianfrogna pulled
AB from the room, without requiring her to directly disclose
her misstatement to administration, something she had not
done yet. A second statement would also have conformed some-
what with the method of amendment Mr Majeed described in his
evidence. If the grievor had delivered her second statement
to Mr. Majeed before she was interviewed, and if the investi-
gators did not receive it until after her interview, as they
testified, the grievor would have assumed that they had re-
ceived and considered it, and would not necessarily have men-
tioned it and/or identified it as a second statement to them.
If she had indicated to them in as inexact and ungrammatical
a manner as the manner in which she testified, that she had
initially said that Mr. Cianfrogna had pulled AB from her
room, and that she had corrected that in her "statement",
which is how she referred to Ex. 6, p 9 c - e, without
differentiating it from the one that appears at p 9b of Ex.
6, they would not have understood that she was referring to a
second Statement, and that they did not have it
108
We find on balance of probabilities that the grievor
wrote her second statement (Ex. 6, p 9 c - e) in answer to
Ms. Schliemann's request and delivered it, possibly to Mr
Majeed, in about mid-January, 1994, before she was interview-
ed The grievor's testimony, which we must accept as uncon-
tradicted, is that UG approached her once. In her second
statement the grievor did not identify UG as the person who
"alerted" her to "a noise", and did not include words to the
effect that UG told her that AB was screaming and possibly
having a nightmare. The grievor was not informed until March
21, 1994 that there was a discrepancy between what the hospi-
tal understood from UG were the number of times UG approached
her and the contents of her statements on that subject While
the grievor's second statement was lacking in some detail, we
are unable to conclude from that lack of detail that she
intended to deceive or maintain false information in it.
The Sloot/LaRose Investigation and Report (Ex. 6 ) :
Administration has the duty and responsibility to assess
the appropriateness of a professional's conduct in order to
determine what, if any, correctional action should be taken
In doing so, it must ensure that any fact-finding investiga-
tion it requests and upon which it ultimately relies is done
objectively, thoroughly, methodically, and completely This
will enable administration to have the confidence that the
results are both reliable and verifiable, and will enable it
to draw accurate conclusions as to whether any correctional
action is necessary, and if so, as to the appropriate action.
Mr. Sloot is responsible to some extent for fire safety
and for the in-house fire procedure education programme, as
well as occupational health and safety, and presumably there-
fore to some extent for the fact that the rooms were not
equipped with smoke alarms, as well as the content of the
fire procedure programme The report (Ex. 6) did not deal
with the impact of the absence of smoke alarms upon the fire
109
safety obligations on the staff, particularly at a minimum
staffing level, the lack of immediately available and close-
by fire-smothering equipment, and the apparent lack of in-
stant electronic communication between minimum staff on the
ward, e.g. a portable alarm carried by each staff member,
beepers, walkie-talkies, etc. , to enable immediate communica-
tion and rapid assistance and avoid the need to run to one
another and the resulting loss of time. The mandate of the
investigation was "to gather and organize information per-
taining to the fire incident" (Ex. 6, p 2). The incomplete-
ness of this information raises some concern as to the re-
port's thoroughness and objectivity. That in itself is
problematic, but is not fatal to the value of the report.
The report does not indicate how many written statements
were obtained from the grievor and when they were received,
information fundamental to the allegations in dispute.
The evidence disclosed that Mr. LaRose had no prior ex-
perience recording statements in an investigative context
Appropriate methodology requires the recording and inclusion
in the report of the dates of all interviews The evidence
did not disclose what, if any, verbal instructions or infor-
mation the investigators received. In order for administra-
tion to have a reliable reproduction of the grievor's state-
ments to the investigators, the appropriate methodology
would have been to have made a verbatim (word-for-word, or as
close to word-for-word as possible) record of their and the
grievor's statements in the interview, in the order in which
they were made
We conclude, from the testimony of Mr. Sloot, Mr La-
Rose, Mr Cianfrogna, Ms Davidson, and the grievor, as well
as from Mr. Sloot's and Mr. LaRose's interview notes in Ex.
6, that the interview notes in Ex. 6 are summaries rather
than a full record of the statements made to Mr. Sloot and
Mr. LaRose by the interviewees.
Mr. Sloot did not demonstrate in his evidence a specific
or independent recollection that he or Mr LaRose read back
110
Mr. LaRose's notes to the grievor In cross-examination, Mr
Sloot indicated that he and Mr. LaRose got the information
regarding the corridors in Ex 6, p 8, "based on the informa-
tion from UG" Ex 6, P 8 is the typewritten note of their
interview with the grievor, not UG. Consequently, we must
conclude that information drifted from one interviewee's
statement to another's, which raises the possibility that the
information found in Mr. Sloot's and Mr. LaRose's other
interview summaries in Ex 6 is not entirely attributable to
the specified interviewee. This is supported by errors in
their typewritten notes e.g. as to times, and other detail,
pointed out by Ms. Davidson and the grievor. Mr. LaRose
indicated firmly that he did not review his interview notes
with the grievor. Mr. Cianfrogna did not testify that the
investigators reviewed their interview notes with him. The
grievor and Ms. Davidson testified that the investigators did
not review their notes with them. None of the interviewees
had seen the typed interview note in the final Report (Ex. 6)
purporting to represent what they had stated to the investi-
gators, prior to the hearing The "drift" of information
from one source into the interview note of another, and the
lack of verification of the typewritten interview notes with
I the interviewees undermines the confidence that can be placed
I in the accuracy of the notes. For this reason as well, the
I evidence neither clearly nor convincingly established the
I
i
I reliability of the interview notes in Ex. 6 as a complete and
I accurate record of what the interviewees said.
Most significantly, neither Mr. Sloot nor Mr. LaRose
demonstrated in their testimony a recollection of what the
grievor said or did not say, independent of Ex 6, which was
before each of them as they testified, nor were they able to
place the statement that they attributed to her, that she had
pulled the patient from the room, in relation to what she had
said before that, or to what they had said or asked her be-
fore she said that. The evidence is as consistent with the
grievor having said to the investigators that she had previ-
111
ously said (meaning written) that she had pulled the patient
from the room, as her having told them during the interview
that she had pulled the patient from the room with the inten-
tion to deceive them.
In view of all the foregoing, we find that the evidence
did not clearly and convincingly establish that the grievor
provided false and contradictory information to the investi-
gators.
Communication of Concerns to the Grievor and the union:
In addition to the obligation upon administration to
conduct an objective, thorough, methodical, complete and
reliable investigation, administrative fairness requires that
all the investigations findings be disclosed to an employee
against whom there is an allegation of misconduct, or to his
or her representative, in full detail, in advance, so that
they may know the precise nature of the allegation and the
source These are fundamental principles of natural justice
which are recognized as necessary in order to preserve the
integrity of an employer's authority and decision to impose
discipline. We conclude that administraton was obliged to
disclose to the grievor and her union representative clearly
that the purpose of the March 21 meeting was pre-disciplina-
ry, as stated in Ms. Stuart's letter of dismissal (Ex 1) ,
and to advise her in detail of their concerns regardlng UG's
statements, the grievor's response time and other conduct or
i lapses, to provide her a copy of the documents containing the
statements they considered false and to provide her a copy of
the Sloot/LaRose report sufficently prior to the meeting (3
weeks would have been appropriate) to enable her and/or the
union to consider them, conduct their own investigation (sub-
ject to the need to respect vulnerable complainants) and en-
able them to present additional and alternative facts, and
evidence of them, if available, to administration. It was
required, as a matter of fairness and natural justice, to
112
take any facts and evidence presented by the union and/or the
grievor into consideration in determining whether and in what
manner the grievor's conduct was inadequate and/or unprofes-
sional, and with respect to discipline We conclude that the
grievor was not afforded that opportunity in this case.
The grievor was not told prior to the March 21 meeting
that UG had indicated to others that she had approached the
grievor about AB twice. While the element of surprise con-
frontation is helpful in the course of an ongoing investiga-
tion, the Sloot/LaRose investigation was concluded and the
meeting was purportedly to discuss the "findings" of the
lnvestigation.
The March 21 Meeting:
We conclude, on the evidence before us and on balance of
probabilities, that the information that was presented to the
grievor at the meeting took her by surprise. The evidence
disclosed that the grievor did not have her own copy of the
report (Ex. 6) for reference during the meeting and did not
have the advantage of having considered it and discussed and
analyzed it before the meeting It disclosed that she was
confused with respect to and had difficulty following exactly
what documents Ms Albrecht and Ms. Kutty were referring to,
and following the contradictions they alleged existed and the
context in which they were allegedly made. Given that confu-
sion, we conclude that she could not have given and could not
have reasonably been expected to give a full and reasonable
explanation or accounting of the contradictions to which Ms.
Kutty and Ms. Albrecht were referring. We observed that in
the course of the hearing the grievor's statements were un-
clear. From time to time, we observed that she spoke discon-
tinuously and ungramrnatically and that she spoke ln that man-
ner more frequently when under stressful questioning than at
other times. We find, on balance of probabilities, that the
grievor felt under stress at the March 21 meeting, and that
113
she spoke there in a manner similar to the manner in which
she testified before this panel, and that her statements in
the meeting were as difficult to understand at times, as her
evidence was. We conclude, on balance of probabilities, that
any non-responsiveness on the part of the grievor observed by
the witnesses in the meeting was for the most part due to her
confusion and hesitation in the face of demands for an imme-
diate explanation of contradictions in statements in docu-
ments of which she did not have a copy.
We find that the grlevor's statement that she would not
have conducted herself any differently at the meeting demon-
strated her pride and lack of understanding of her disadvan-
tage in that situation. We find that the fact that the grie-
vor was accompanied by a union representative at the meeting
does not annul the flaws in the disclosure process.
The absence of detail in the evidence as to what was
said by who in the March 21 meeting, together with the lack
of context and specificity of Mr. Majeed's statement that the
grievor said that she stood by her statement, raises the pos-
sibility if not probability that it was at the March 21 meet-
ing that Mr. Majeed heard the grievor say that she stood by
her "statement", and that the grievor was referring to her
second statement (Ex 6, p c - e), and that those present at
the meeting did not understand her meaning. The evidence as
to what the grievor was told about UG's statements was simi-
larly lacking in detail.
We observed that from time to time that when giving
their evidence, Ms. Kutty and Ms. Albrecht did not communi-
cate clearly and did not always comprehend the questions they
were asked. We also find, on balance of probabilities, that
Ms. Kutty and Ms. Albrecht felt some tension, if not stress,
at the March 21 meeting. All three of the major participants
in the meeting, the grievor, Ms. Kutty and Ms. Albrecht, were
at times less than clear in their testimony before us We
found it necessary to frequently seek clarification as to
1 1 4
which of the grievor's statements each witness was referring
to, among other things
In view of Ms. Kutty's evidence as to her concerns sub-
sequent to the Sloot/LaRose report, and the death of patient
AB, we find it unlikely, on balance of probabilities, that
Ms. Kutty and Ms. Albrecht sought clarification and/or ensur-
ed that they understood what the grievor was saying at the
meeting. Ms Kutty and Ms Albrecht wanted a clear, cogent,
direct and immediate explanation from the grievor addressing
all their concerns.
We conclude from the grievor's as well as Ms. Kutty's
and Ms. Albrecht's evidence, that the grievor did not clearly
communicate at the meeting that she had given two written
statements, that the first one had been inaccurate as to who
pulled AB from the room, and that the second one had been
intended to clarify that she did not pull AB from the room
If the grievor communicated on March 21, 1994 in the manner
in which she gave her evidence, we can appreciate that those
present would not have understood, without great effort, what
she was attempting to communicate However, having said
that, we again observe that the evidence did not establish
that the grievor was given a copy of Ex. 6 while it was being
read to her at the meeting, did not establish exactly what if
any portions were drawn to her attention and whether they
were shown to her, whether the existence of her second state-
ment (Ex 6, p 9c - e) was acknowledged by administration at
the meeting, and whether it was shown to her and/or
discussed
We find it improbable that the grievor attempted to sus-
tain a deception at the March 21 meeting. There is nothing
in the evidence to suggest that she thought she had anything
to gain by asserting that she had pulled AB from her room at
that meeting. As a result, we are unable to find any plau-
sible motive for her doing so
In view of the confusion arising from the unclear refe-
rences to the grievor's two statements, Ex. 6, P 9b, and Ex
115
6, P c - e, simply as "my" or "her statement", we find it
more probable that the grievor, Ms Kutty and Ms Albrecht
misunderstood one another at the meeting, and that Ms. Kutty
and Ms. Albrecht came to the conclusions which lead to the
decision to dismiss the grievor We conclude that the manner
in which administration presented its concerns at the March
21 meeting was unclear and that on balance of probabilities
it necessitated confusion and incomplete and unsatisfactory
responses from the grievor.
The Board of Referees and the Complaints Committee Decisions:
In Paulley/Bechard, supra, Arbitrator Barret stated:
The employer may rely on culpable conduct
which occurred after a discharge in support of the
discharge even where an arbitration board finds
that the initial discharge was unjust. . The sub-
sequent behaviour was clearly relevant to the issue
of remedy when an arbitration board has found that
an original dismissal was an excessive disciplinary
response to culpable conduct. Where even more cul-
pable conduct takes place after the dismissal it
bears directly on whether or not the employer and
employee can be reinstated into a trusting and har-
monious relationship.
We agree with the above statement regarding the relev-
ance of evidence of culpable conduct after dismissal. We
find it applicable to evidence of exculpatory conduct as
well. The primary test of admisslbllity is always one of
relevance. However, in Paulley/Bechard, the board heard viva
voce evidence from direct third party witnesses as to the
post-dismissal culpable conduct. We do not have such evi-
dence. Both parties are asking us to consider and form con-
clusions as to the grievor's post-dismissal conduct on the
basis only of the grievor's very limited evidence and the
written decisions that each party prefers.
The Board of Referees held a hearing but there is only
the grievor's evidence before us as to what they heard The
College Complaints Committee conducted an investigation and
116
formed certain conclusions as a result of which no hearing
was held. We sympathize with the parties' preference not to
call third party witnesses as to these matters, as that would
probably have lengthened this proceeding considerably and
added to its expense. However, in view of our observations
and findings regarding the grievor's and others' ability to
make themselves clear, particularly regarding which of her
statements they were referring to at any given point, and our
finding that conclusions were drawn regarding her honesty
without a clear understanding of what her statements had been
and had meant, it would be inappropriate to adopt the conclu-
sions of other tribunals without evidence as to the questions
asked and the responses given before them. As a result,
neither decision can be considered of much assistance in
resolving the main matters in dispute in this hearing
Performance Appraisals and Previous Discipline Record:
In expressing her view that her performance appraisals
had been good, and that the only concerns the employer dis-
cussed with her were her attendance and her writing of care
plans, the grievor overlooked the fact that the employer in-
dicated some concern in the appraisals dated October, 1990
and August, 1992 (Ex 20 and 21) regarding her failure to
keep her clinical notes and/or patient charting current.
That is revealing in relation to her evidence that she was
charting in respect of a patient who was to be discharged on
December 15, 1993.
Her performance appraisals indicate that from August of
1990 to October of 1992 the grievor's overall performance was
neither above nor below the Centre's standard, but "on" that
standard. There is no later performance appraisal. We con-
clude that the grievor's performance was generally satisfac-
tory from October of 1992 until December of 1993, with the
exception of an occurrence in September of 1993 which we will
deal with below. We conclude from Mr Majeed's evidence that
117
deal with below We conclude from Mr Majeed's evidence that
as her Head Nurse he viewed the grievor's overall performance
as satisfactory. We also conclude that the grievor is given
to overstate her level of performance and to omit mention of
or be less than specific about areas where her performance
could improve.
No further evidence that the grievor had previously
falsified records or charted inaccurately was provided except
that patient KM had alleged that the grievor had falsified
information on her file. The chart containing the allegedly
false information was not produced. The evidence did not
disclose the precise nature of the allegedly false state-
ment. Falsification of records was not mentioned in the let-
ter of reprimand (Ex. 12). We are therefore unable to find,
on the evidence before us, that the grievor had previously
falsified a record.
Although the grievor said that there had not been any
teasing of patient BW, she acknowledged having referred to
the patient's therapist in the presence of the patient in
what must be characterized as a disrespectful if not abusive
manner. The grievor did not indicate that she felt the let-
ter of reprimand had been unjustified The letter was not
grieved. We therefore accept the description of the facts in
Ms. Schliemann's letter as accurate. We also conclude that
the grievor was less than candid and complete in testifying
to this matter.
However, it does not follow from our findings that the
grievor was deliberately lying. Human behaviour and motiva-
tion is not always that straightforward. The evidence de-
monstrated that the grievor from time to time omitted mention
of less than flattering aspects of her performance, and put a
more positive shine on other aspects of her performance and
of her appraisals than they objectively deserve. That is a
matter of perception and of distortion. Few of us do not
distort to some extent in assessing ourselves. Absolute ob-
jectivity about ourselves is an ideal that is seldom realiz-
118
ed Our weaknesses can be very painful to recognize and to
acknowledge for a variety of reasons which do not always JUs-
tify the conclusion that one is personally and/or professio-
nally dishonest and untrustworthy.
The evidence established that Ms Schliemann thought
that because of the grievor's inappropriate conduct with BW,
she considered placing her on dayshift for 3 months during
which period she would not function as a charge nurse and
after 3 months, a performance appraisal would be carried out
In effect, she contemplated a temporary demotion of the grie-
vor. She indicated that this was not implemented owing to
the inconvenience of having to reschedule others in order to
accomodate placing the grievor on days. It is regrettable
that the intention to implement a temporary demotion was not
acted upon or conveyed to the grievor, as it permitted the
grievor to view the employer's concern about her attitude
toward and conduct with patients and others as less serious
than it was.
The written Reasons for Termination:
Although the final decision to terminate was made by Ms.
Stuart, it is evident that the employer's reasons for the
grievor's dismissal were those provided by Ms Kutty and Ms.
Albrecht. The fact that Ms. Stuart did not testify is not
fatal to the employer's case However, because she did not
testify, we are unable to ascertain what, if any, investiga-
tion she undertook to ascertain the reliability of the facts
asserted to her by Ms, Kutty and Ms. Albrecht We must as-
sume, on the evidence before us, that Ms. Stuart adopted the
reasons Ms Kutty and Ms. Albrecht gave in evidence and that
the reasons for termination were those stated in Ms Stuart's
letter (Ex. 1) .
The absence in Ms. Albrecht's memo to Ms. Stuart (Ex. 8)
of any mention of the grievor's second Statement (Ex. 6, p 9
c - e) is striking. We conclude that in arriving at their
119
recommendation Ms. Albrecht and Ms. Kutty gave no considera-
tion to that document and to the fact that it represented an
attempt on the part of the grievor to clarify who had pulled
AB from her room.
We find that the evidence did not support the characte-
rization of the grievor's conduct toward the patient as
"abandonment" and did not support the allegation that she
provided false and contradictory information throughout the
investigation.
Our Conclusions:
We find that the evidence did establish that grievor did
not respond as quickly as possible when UG advised her that
she heard AB screaming and that she might be having a night-
mare, that she did not activate a fire alarm as quickly as
possible, and that she did not assess the patient AB and call
an ambulance as quickly as possible. We find that her first
reporting of the incident on December 14, 1993 contained an
inadvertent misstatement as to who had pulled AB from her
room, and that she did not take sufficient appropriate and
timely steps to correct that misstatement and did not correct
the misstatement on the documents on which it appeared.
We found sufficient inconsistencies, lack of detail and
unclarity in the evidence of the employer's witnesses, presu-
mably due to the passage of time and lack of notes taken con-
temporaneously to the events to use while testifying to re-
fresh their memories, that it was not possible to place con-
fidence in or to prefer the evidence of one set of witnesses
over the other on the basis of credibility The onus was on
the employer to establish in evidence the grounds upon which
it relied, clearly and convincingly. The nature and quality
of the evidence as a whole in our view raised a greater like-
lihood that the grlevor, Ms. Kutty and Ms. Albrecht miscom-
municated with one another and misperceived and misunderstood
one another, than that the grievor had been lying Accor-
120
dingly, we conclude that the employer discharged the onus
upon it to provide clear an convincing evidence only in
respect of some of the reasons for termination in the letter
of dismissal. Notwithstanding the extenuating circumstances
of the fire, we conclude, in view of all our findings, that
the grievor's conduct justified discipline.
Indifference in the Care of the Vulnerable:
The humaneness of any society may be judged by the na-
ture and quality of the care that is provided to its most
vulnerable members, e.g. children, the physically infirm, and
the mentally ill, among others Health care providers, such
as nurses, and in this case, the grievor, are on the front
line of the delivery of that care on behalf of our society.
Part of the delivery of that care includes the manner in
which the care is delivered.
The self-esteem of patients is an important element in
their recovery Being hospitalized in a psychiatric facility
seldom raises their self-esteem. The degree of respect with
which mental health patients are treated by mental health
professionals is a significant factor in their recovery, and
behaviour which demonstrates indifference to patients must in
most instances be viewed as anti- or counter-therapeutic in
relation to their self-esteem We find, on the grievor's own
evidence regarding her conduct with UG, that in putting her
own need to complete a patient's chart over another patient's
efforts to alert her to a third patient's distress, she de-
monstrated lndifference and little respect for a patient
attempting to alert her, and very poor, if not unprofessional
judgment.
Up to a few minutes' delay in responding to a patient in
an institutional setting, while neither desirable nor profes-
sional, in and of itself and in non-emergency circumstances
is not disciplinable conduct Further, conflicting profes-
sional obligations on mental health professionals, and the
121
limited time and staff ln such institutions creates pressure
that can result in attitudes and behaviour of professionals
toward patients which are counter-productive to the patients'
mental health amd recovery, and which can, as can be seen
from the facts of this case, result in risk to both patients
and staff.
When asked whether UG's advice to her that AB had been
screaming meant anything to her, the grievor replied "no, it
didn't". To be fair to the grievor, her response was frank,
and it may not be unusual to encounter screaming in a mental
health centre However, her response demonstrated no insight
or recognition of the implication of her answer--that UG's
report of AB screaming meant that as custodian and nurse-in-
charge of a mentally ill patient, she had an obligation to
check on her immediately. She appears to have demonstrated a
similar lack of insight when called to account for unprofes-
sional conduct with patient BW However, in view of the em-
ployer's decision to forgo placing the grievor on days and
monitoring her performance and appraising it at the end of
three months, we conclude that unprofessional conduct such as
teasing a patient regarding how their medication is adminis-
tered and referring to a patient's therapist pejoratively in
the presence of the patient may not attract education and/or
correction or strong discipline unless the results are pro-
found and obvious. We are concerned that although a letter
of counsel was placed on the grievor's file regarding an in-
cident which occurred a few months before December 14, 1993,
she did not derive a message from it that her conduct was
serious or unprofessional enough to motivate her to acknow-
ledge and gain insight into her lapses, e.g through courses
or counselling
Summary:
In summary, the panel concludes from the evidence that:
122
1- The grievor's job performance conformed to the
standard of other psychiatric nurses in the hospital, neither
above nor below it, with noted criticisms by her supervior in
1992 regarding her failure to document patient files on a
current basis.
2- The grievor is proud and immature and displays
little emotion when under stress.
3- She speaks ungrammatically and discontinuous-
ly when under stress and can be difficult to comprehend in
those circumstances.
4- She failed to respond immediately to UG's
report that, as she testified, AB was screaming and might be
having a nightmare.
5- She was shocked and horrified at the sight of
AB in flames in her room, and the shock, if not trauma,
impacted upon her judgment over the balance of the shift,
rather than just for a second.
I
, 6- She failed to consistently take charge as
i
i
i Nurse-In-Charge for the balance of the shift, although she
I
! performed appropriately at certain times
i
I
!
~ 7- Neither the grievor nor the employer have
!
i considered the probable effect of the shock of finding the
I
t patient in flames on her ability to perform her duties, and
1
! that the conditions on the floor had placed her and the
I
patients at some risk of health and safety.
!
i 8- After telling Mr. Cianfrogna to get a wet
!
f blanket to smother the flames on AB, she accepted his reassu-
t
~ rance that he would take charge of AB, possibly without know-
!
t ing that he knew there were no blankets left. (In our view,
f if Mr. Cianfrogna did not disclose this fact to her, it was
f
f not an intentional failure to communicate, but rather an
[
r
l
t
1,
!
r
~
f
123
oversight, and an error of judgment, for which no discipline
is warranted )
9- She thereafter assumed that Mr Cianfrogna was
properly taking care of AB, and occupied herself with the
evacuation of the patients, and thereby deprived herself of
an opportunity to assess whether AB had been appropriately
cared for and/or needed first aid and/or an ambulance at the
earliest possible moment
10- She does not appreciate that indifference to
and delay in responding to patients, as well as certain forms
of teasing and remarks critical of a patient's therapist are
damaging and counter-therapeutic, notwithstanding that in her
and her colleagues' experience, some of the patients distort
or exaggerate or are simply manipulative when approaching
staff.
11- The consequences of that indifference and
delay are apparent in this case
12- At the end of the shift, while still in a
state of shock and horror from the earlier events, she inad-
vertently wrote on the patient file and elsewhere indicating
that she, rather than Mr. Cianfrogna, pulled AB from her
room, and she did not take immediate and positive steps to
notify administration and amend the misstatement in all the
documentation, notwithstanding her inquiry to Mr Majeed,
which was not adequate, and his response, which did not
clarify to her how to affect the change required.
13- Her failure to notify administration and amend
the misstatement immediately was a result of a combination of
her poor judgment, fear, embarrassment and a wish to avoid
professional disapproval of her conduct and the consequences.
14- Before January 11, 1994, when the Sloot/LaRose
investigation was to begin, Ms Schliemann asked the grievor
124
and Ms Davidson and Mr Cianfrogna to provide a written
statement of their activities and whereabouts from midnight
until about 3 a m on December 14, 1993.
15- The grievor prepared a statement in response
to Ms. Schliemann's request (Ex. 6, p9c-e), in which she
stated that she alerted her co-worker to get a wet blanket
and attend to AB. This left the issue of who pulled the
patient out of the room to inference.
16- The grievor delivered the statement (EX 6, P
9 c - e) to Mr Majeed and Mr. Sloot and Mr. LaRose may not
have received it until after they interviewed her.
17- Misunderstanding and miscommunication flowed
from Mr. Sloot and Mr. LaRose not having the grievor's second
statement (EX. 6, P 9 c - e) when they interviewed her and
resulted in the erroneous perception that the grievor provi-
ded false and contradictory information to them and through-
out the investigation
18- Prior to the March 21, 1994 meeting, the
grievor received no disclosure as to administration's under-
standing from UG that she had approached the grievor twice,
and received no disclosure that administration understood her
to have malntalned false and contradictory information to the
investigators.
19- Administration inadvertently failed to dis-
close to the grievor that the purpose of the March 21 meeting
was pre-disciplinary.
20- The conclusions reached by administration at
the end of the March 21 meeting were only partly substantia-
ted by the evidence.
21- Admlnistration was aware of the grievor's poor
judgment in her conduct with respect to patient BW in Septem-
125
ber of 1993 and contemplated closer supervision by placing
her on straight dayshifts with a performance appraisal after
3 months, but instead gave the grievor a written reprimand
22- The reprimand did not contain a warning that
any further conduct of this nature could result in her dis-
missal.
23- The grievor has a tendency to distort rather
than to accept and assimilate professional criticism
24- The evidence dld not establish that the grie-
vor is unable to improve her attitude toward and conduct with
patients through education and supervision, and possibly pro-
fessional counselling, to develop more personal insight into
the reasons behind her distortion of professional criticism,
and to improve her ability to benefit from constructive
professional criticism
The Arbitral Jurisprudence:
In determining whether dismissal has been the appropri-
ate response, a board of arbitration may consider a number of
aggravating as well as mitigating factors. The 1964 Steel
Equipment case, supra, at pp 357-358 reviewed factors which
various boards considered in making this determination
1 The previous good record of the grievor - . . .
2. The long service of the grievor - . . .
3 Whether or not the offence was an isolated in-
cident in the employment history of the grie-
vor - . . .
4 Provocation -
5. Whether the offence was committed on the spur
of the moment as a result of a momentary aber-
ration, due to strong emotlonal impulses, or
whether the offence was premeditated - .
6. Whether the penalty imposed has created a spe-
~
126
cial economic hardship for the grievor in
light of his particular circumstances -
7. Evidence that the company rules of conduct,
either unwritten or posted, have not been uni-
formly enforced, thus constituting a form of
discrimination - . .
8. Circumstances negativing intent, e.g , like-
lihood that the grievor misunderstood the na-
ture or intent of an order given to him, and
as a result disobeyed it - . . .
9. The seriousness of the offence in terms of
company policy and company obligations -
10. Any other circumstances which the board should
properly take into consideration, e g. (a)
failure of the grievor to apologize and settle
the matter after being given an opportunity
to do so - . . .
Arbitrator Reville expressed the view at p. 358, supra,
that the above list was "neither exhaustive nor conclusive"
and that each case must be decided on its own facts and
merits. We agree with that view.
In Thomson, supra, Arbitrator Kaplan cited Denomme, 664/
83, (Verity) in which Arbitrator Verity cited Re C.B.C. and
C.U.P.E. (1979), 23 L.A.C. (2d) 227 at pp 230-231 as stating
"The older cases generally (but not inevitably)
treated theft or dishonesty as an offence which
warranted automatic discharge; more recent cases,
especially those decided by arbitrators subscribing
to the theory of 'corrective discipline', do not
treat dishonesty as per se grounds for dlscharge;
and various mitigating factors have been identlfled
as justifying the substitution of a lesser penalty
for discharge in such cases. Such factors include:
1 Bona fide confusion or mistake by the grievor
as to whether he was entitled to do the act com-
plained of;
2 The grievor's inability, due to drunkenness or
emotional problems, to appreciate the wrongfulness
of his act;
3. The impulsive or non-premeditated nature of
the act;
f
127
4. The relatively trivial nature of the harm
done;
5 The frank acknowledgment of his misconduct by
the grievor;
6. The existence of a sympathetic, personal mo-
tive for dishonesty, such as family need, rather
than hardened criminaltiy;
7 The past record of the grievor;
8 The grievor's future prospects for likely good
behaviour.
9 The economic impact of discharge in view of
the grievor's age, personal circumstances, etc
But these factors, while helpful, are not compo-
nents of a mathematical equation whose composition
will yield an easy solution Rather they are but
special circumstances of general considerations
which bear upon the employee's future prospects for
acceptable behaviour, which is the essence of the
whole corrective approach to discipline. How well
or badly the grievor has behaved in the past is
some indication of his likely future behaviour.
How aggravated or trivial was the offence is some
clue to the risks the employer is being asked to
run if the grievor is reinstated in employment, and
how seriously the damage will affect the grievor is
at least one (but not the only) measure of whether
a reasonable balance is struck between the two
considerations.
We agree with the foregoing as well. We agree with the
theory of corrective discipline, which views the purpose of
discipline as primarily corrective, to cause the employee to
recognize how their performance or conduct fails to meet the
standard expected of the employer, to warn the employee that
the performance or conduct is not acceptable and can lead to
harsher discipline, and to thereby enable the employee to
improve their performance and if necessary, take steps to
ensure that they do not repeat the unsatisfactory performance
or conduct. Where the previous discipline has not provided
the employee with a clear message that the behaviour is not
acceptable, and where it has not offered assistance or direc-
tion to enable the employee to correct it, principles of
128
fairness and equity indicate that if the employee again con-
ducts him- or herself in a similar manner, or in an unsatis-
factory but only tangentially related manner, the employer
cannot rely upon the previous discipline and subsequent
unsatisfactory conduct to conclude that the employee is not
capable of rehabilitation and that dismissal is warranted.
The Decision:
Each case must be decided on its unique facts The
facts in this case are startlingly unique and require careful
consideration. The employer has a strong and reasonable in-
terest in maintaining a high standard of nursing practice
among its nursing staff, and in being able to maintain confi-
dence in the honesty and candour of its staff The union and
grievor have a strong and reasonable interest in job security
and procedural fairness in the handling of discipline The
task of this board is to consider whether dismissal was the
appropriate disciplinary response in light of the difficult
facts we have found on the evidence before us and in light of
those competing interests.
At the outset, we find the following to be significant
mitigating factors:
1 The shock and emotional stress the grievor
experienced as a result of finding AB in flames and of
being without equipment and unable to effect an imme-
diate rescue.
2 She remained in a state of shock and horror
for the balance of her shift and was not aware of the
impact of these events upon her emotionally and remains
unaware of the extent of the impact to date
4 She did not learn before the March 21 meeting
of administration's understanding that UG had indicated
that she had approached her twice.
5. She was not aware before the March 21 meeting
that administration believed that she had attempted to
mislead Mr Sloot and Mr LaRose during their interview
with her.
129
6 She was told that the March 21 meeting was
non-disciplinary, which was misleading
7 She was not given sufficient timely disclosure
of the documentation upon which administration had based
its conclusions to enable her to provide a satisfactory
explanation at the time provided for one, the March 21
meeting.
On the other hand, the following aggravating factors are
present and give us some concern:
1 . At the hearing the grievor was unable to
acknowledge that she did not and should have responded
to UG's alert immediately.
2. The grievor has failed to acknowledge that she
had an obligation to clearly and promptly identify her
misstatement in her recordings to administration, and to
correct those recordings in a clear manner.
3 She was less than frank and candid at the
hearing regarding what she said of her misrecording to
Mr. Majeed and regarding other collateral matters.
The grievor's failure to activate the fire alarm and to
promptly assess AB's injuries and quickly call an ambulance
thereafter constituted serious and unacceptable breaches of
her obligations as an R.N. and a charge nurse These brea-
ches must be balanced against the emotional shock and horror
she had just experienced, which diminish the view that her
performance was negligent or culpable Her misstatement on
the night of the fire as to who pulled AB from her room also
constituted a serious breach of her professional recording
obligations. That breach must be balanced against the consi-
deration that it took place within several hours of a shock-
ing and horrifying experience, and that it pertained to a
matter of identification as to who rendered immediate assis-
tance, rather than to nursing practice. Her misrecording was
unacceptable, but we view it as less significant than recor-
dings that mlslead as to the treatment that was administered.
The grievor's conduct undoubtedly lead Ms Albrecht to
the conclusion that she was dishonest and untrustworthy, and
that for those reasons, the employer could no longer repose
130
confidence in her ability to function as a nurse We respect
Ms Albrecht's concerns, which were based upon her sincere
belief that 1) the grievor had initially provided false in-
formation both as to the number of times UG had approached
her and as to who pulled AB from her room and 2) that she had
knowingly and deliberately provided that false and misleading
information and contradictory information to the investiga-
tors and to her at the March 21 meeting. The evidence did
not support her second conclusion It established that the
grievor can be less than candid at times, but unlike Black,
supra, without the intention to deceive. Rather, we find her
lack of candour relates to her having some difficulty accep-
ting and processing professional criticism in a constructive
manner. We are unable to conclude, on the evidence before
us, that the grievor's Head Nurse and her colleagues are of
the view that she has breached their trust and confidence in
her, or that she cannot, over time, restore their trust and
confidence in her and restore the trust and confidence of
hospital administration.
In view of all the foregoing, we conclude that dismissal
was excessive in all the circumstances and that the grievor
should be reinstated.
The terms of that reinstatement are a challenge, in view
of the aggravating factors, which would normally result in
reinstatement, but entirely without compensation or benefits.
However, we are obliged to take into consideration the effect
of the employer's failure to fully disclose its concerns as
to the grievor's conduct, her documentation and alleged main-
taining of lies, etc., prior to the March 21 meeting, and the
effect of its failure to disclose that the meeting was pre-
i disciplinary. In our view, the employer's conduct deprived
,
the grievor of an early and fair opportunity to provide an
adequate explanation, and resulted in unclear communication
i
l by both the grievor and administration at the meeting, there-
r
i by causing the employer to maintain the opinion that the
grievor deliberately attempted to mislead both the investiga-
131
tors in January and those present at the March 21 meeting
that she pulled the patient from the room Neither the em-
ployer nor the grievor deliberately contrived to mislead the
other, and neither purposefully conducted themselves in a
manner which lead to the misunderstanding we found lead to
the grievor's dismissal.
Notwithstanding the fire and its impact upon her, the
grievor's failure to immediately acknowledge her misrecording
and to communicate it directly and clearly to Mr Majeed and
administration substantially contributed to and prolonged the
misunderstandings and miscommunication we found. On the
other hand, the employer re~ied upon on a seriously flawed
investigation report and drew conclusions from it which the
evidence indicated were mistaken, and withheld its concerns
from the grievor until the March 21 meeting, which lead ine-
vitably to further misunderstanding and some conclusions by
administration which were not supported on the evidence. It
is difficult to determine how, if at all, the economic loss
should be distributed, in view of both parties' apparent
contributions to the misunderstandings.
We also note that the union and the grievor feel that
the grievor's conduct on the night of the fire has been scru-
tinized and criticized while the conduct of other staff has
not been, and that as a result they view her as having been
singled out for discipline in a discriminatory and unfair
manner. The evidence suggested some inadequacies, but did
not clearly establish that the conduct of her colleagues
warranted scrutiny and/or discipline. However, notwithstan-
ding the unusual circumstances of the fire and her shock and
horror, as charge nurse on the Unit that night, the grievor
had the foremost and ultimate responsibility of ensuring
prompt effective assessment and care of the patients, parti-
cularly physically injured ones, and the evidence established
that although she tried, she did not meet all the require-
ments of the situation
132
The grievor's acknowledgement of only selective elements
of her unsatisfactory performance on this and one previous
occasion causes us some concern as to whether she has the
personal strength, ability and character to acknowledge and
deal with her shortcomings as we have determined them in this
decision. However, she has not been given an opportunity to
explore these matters with professional help and to gain in-
sight into them, and we conclude that until she has been gi-
ven that opportunity and demonstrated that she cannot utilize
it constructively to improve her performance, we cannot as-
sume that she would be unable to benefit and improve from it
The Remedy:
We have considered all of the evidence, and the contri-
butions of both the grievor and administration to the circum-
stances which lead to the grievor's dismissal. We conclude
that the interests of both parties in fairness and equity and
the maintenance of the Centre's reputation and high standards
of nursing as well as its need to place confidence and trust
in its employees will be served if the grievor is reinstated
on the following terms:
1. a five-working-day suspension without pay for hav-
ing failed to immediately respond to patient UG's approach,
and a written warning that failure to respond immediately to
an alert that a patient is in distress is a serious breach of
her duties and obligations as a nurse and as a charge nurse,
and that further such occurrences may result in the imposi-
tion of more severe penalties, including dismissal
2. notwithstanding the shock and horror of the fire,
an additional five-working-day suspension without pay for
having failed to assess patient AB's burns and that she
required immediate medical attention and an ambulance;
133
3 an additional 30-working-day suspension without pay
for having failed to promptly notify Mr Majeed and admini-
stration and indicate clearly that in her documentation on
the morning of December 14, 1993 she had misstated that she
had pulled the patient from the room and that Mr Cianfrogna
had pulled the patient from the room, and that she wished to
amend the documentation The 30 days represents the period
from December 14, 1993 to mid-January, 1994 when, we find, on
balance of probabilitles, that she delivered the statement
Ms. Schliemann requested, i.e. her second statement, (Ex 6,
p 9 c - e) to Mr. Majeed, thereby rectifying her misstate-
ment, although in an incomplete and indirect manner
4. The employer will deliver a written warning to the
grievor and place it in her personnel file advising her that
failure to promptly amend errors in patient charting once she
is aware of them is a serious breach of her nursing duties
and that failure to promptly advise administration of errors
in other documents and recordings intended for their conside-
ration and failure to promptly provide a clear written amend-
ment of them is also a serious breach of her professional
duties, and that if in future there is a reoccurrence of such
conduct or similar conduct, more serious discipline may
result, which may include dismissal.
5 The grievor will initially be reinstated to day-
shifts only for a period of 4 months, during which period she
will not function as a charge nurse.
6. Subject to the suspensions without pay, which shall
be consecutive, and subject to any earnings she may have
received since March 25, 1994, the grievor will be reinstated
without loss of compensation, seniority or benefits, but
without interest on any money oWlng.
[
134
7 The grievor will be reinstated to full duties,
including rotating shifts and charge nurse duties after 1
month, thereby abbreviating the 4-month term in paragraph 5,
if she agrees to attend professional counselling with a coun-
sellor agreed upon by her and the employer, such counselllng
to commence within two weeks of the date of her return to
work or such later date as the parties may agree, for the
purpose of addressing the reasons behind her delay in respon-
ding to UG's alert and her attitude toward and difficulty
accepting profe&sional criticism. The counsellor shall be
provided a copy of this decision from page 92 to the last
page, the decision of the College of Nurses Complaints Commi-
ttee and Ms. Schliemann's letter to the grievor dated Novem-
ber 29, 1993, and will be asked to review them prior to com-
mencing counselling with the grievor. The grievor will pro-
vide the counsellor a written authorization to the employer
to release to the employer from time to time, at no more fre-
quently than 3-month intervals, at the employer's expense,
his/her professional opinion as to whether the grievor is
clearly acknowledging the findings of her conduct in these
documents and is constructively addressing these issues and
whether she requires further counselling for that purpose.
We will remain seised with respect to implementation
135
Dated at Toronto this 30th day of October , 1995
------
"I Dissent" (dissent to follow)
Douglas Montrose
Employer Nominee
~
~",~G -
Edward SeYmour
Union Nominee
Appendix 1
List of Exhibits
1 Letter of Dismissal - March 25, 1994
2. Grievance - AprilS, 1994
3 Memorandum, O'Hara to Stuart - December 14, 1993
4 Memorandum, O'Hara to Schliemann - December 18, 1993
5. Memorandum, Kutty to Albrecht - January 26, 1994
6. Memorandum dated February 18, 1994 and Fire Investiga-
tion Report
7. Letter, Albrecht to Wright - March 11, 1994
8 Memorandum, Albrecht to Stuart - undated
9. position Specification & Class Allocation - R.N.
10. O/Reg. 549
II. O/Reg 799/93
12. Letter, Schliemann to Wright - November 29, 1994
13. Letter, KM to Majeed and Stuart - September 21, 1993
14. Fire Marshal's Fire Investigation Report
15 Attendance Record, Fire Safety Annual Session - August
27, 1992
16 Letter, Schliemann to Wright - October 26, 1993
17. Memorandum, Schliemann to Albrecht - November 1, 1993
18 Performance Appraisal - November, 1989
19. Performance Appraisal - February, 1990
20 Performance Appraisal - October, 1990
2I. Performance Appraisal - August, 1992
22. Letter to Kuntz, OPSEU, Decision of Complaints
Committee, Letter of Caution, Appendix to Decision
23 Board of Referees Decision - 6 July, 1994
24. 3 pages of Queen St. Mental Health Centre Nursing Manual
re Patient Care Documentation
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL 'ONTARIO
1111 GRIEVANCE COMMISSION DE
~
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELEtCOPIE (416) 326-1396
March 12, 1996
AMENDMENT
I
RE 588/94 OPSEU (Wright) and the Crown in Right of ontario
(Ministry of Health)
Please attach the enclosed Dissent from Mr. D. Montrose to your
copy of the above noted decision.
Yours truly,
;/UJ
L stickland
Registrar
LS/dbg
Encl
WRIGHT 0588/94
MINISTRY OF HEALTH
DISSENT EMPLOYER MEMBER
I have reviewed the decision in the above award and with respect disagree with
the decision for the following reasons
1 In my estimation the employer has proven its case against the grievor and
applied the appropriate penalty
2 The grievor's monumental ~ack of credibility
1 THE EMPLOYER CASE
The employer's case can best be described in the letter of dismissal which
states in part
"An investigation determined that you did not respond as quickly as
possible and you abandoned the patient in serious distress and
danqer of life. As well , your initial reportinq of the incident
was false and yoU provided false and contradictory information
throuqhout the investiqation.
You were given an opportunity at a predisciplinary meeting to
explain your actions You eventually admitted that you had lied
in your reports, but you were unable to offer an acceptable
explanation for your actions or your subsequent false statements.
Your work history was reviewed from 1989 and it is noted that you
received a letter of reprimand in November 1993 for inappropriate
behaviour "
emphasis added
The majority agrees that the grievor did not respond as quickly as possible
when advised by a patient that another patient was screaming The majority
did assess the grievor a (5 ) five working day suspension for this serious
breach of duties and obligations as a charge nurse
An additional (5) five working day is assessed against the grievor for
failure to assess the extent of the patient's burns which resulted in no
immediate medical attention to the patient or calling an ambulance Again
the majority agrees this is a serious breach of the grievor's duties and
obligations as a charge nurse
2
- 2 -
The majority agrees the grievor uttered false documentation The
documentation submitted on December 14, 1993 indicated the grievor had
pulled the patient from the burning room The patient was actually pulled
from the room by a nursing assistant who had taken charge of the situation
The majority assessed an additional (30 ) thirty working days suspension
This suspension represents the period from December 14, 1993 to mid January
1994, when the grievor delivered the correct version of events The
majority in addition to the above assessed a written warning for failure to
amend errors in patient charting The above incident concerning the burning
room etc , is not simply a "charting error", rather a blatant attempt to
cover up a serious breach of professionsal nursing conduct
2 CREDIBILITY
The majority found, "that the grievor was not deliberately lying" I
strongly disagree, every lie told by the grievor, and there were many, both
during the investigation process and at the Grievance Settlement Board
hearing (under oath), and in part with other tribunals were all self
servinq The circumstances (falsehoods) changed during the process, always
to put the grievor in the best possible light, to the extent this member had
trouble with veracity of all the grievor's statements
It is ironic the incident of pulling the patient from a burning room by the
grievor, which was false, was not a cause for discipline The employer at
the onset, took the position anyone could panic at the sight of a burning
human being and in this instance the grievor was not culpable The fact the
patient was pulled out of the room is material to the case only to the
extent of the false documentation relating to this incident
SUMMARY
The grievor has very little seniority (1989-1994) and received a letter of
reprimand in 1993 for inappropriate behaviour (relating to patient care) The
grievor is a Registered Nurse working in a demanding profession, involved with
the mentally ill The responsibilities and challenges in this environment
require maximum attention and care, which the grievor does not appear to
possess The majority agrees in part with this assessment "We find, on the
grievor's own evidence regarding her conduct with UG, that in putting her own
need to complete a patient's chart over another patient's efforts to alert her
to a third patient's distress, she demonstrated indifference and little respect
for a patient attempting to alert her, and very poor, if not unprofessional
judgment "
I can only conclude the grievor an intelligent person, with a good work ethic,
as demonstrated by performance appraisals, is in the wrong environment or in the
wrong profession
I would have dismissed the grievance
~~~-- ~
- -' -
I
D C Montrose