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HomeMy WebLinkAbout1995-0411SUMMERFIELD96_02_0 l lN 14HI() IMPLlJ\'/o,!I/LAL III1JI)NNt CROWN EMPL W[f5 Vf ( UN r ARlO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 18U nUMJAS STHEll v\LSI SI'I'E Lll IOH )NIl) UI 4RI0 M~u IL8 TELEPHONE iEcEPHONE '~'6 3.:'6-1388 18u nUE OUNDAS ourST BL/HeAU 2IC,' TOHONTO {UI rAHIUj <v1SG I.B FACSIMILE TELECOPIE (416) 326-1396 GSB # 411/95 OPSEU # 95B928 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Summerfield) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE H Finley Vice-Chairperson FOR THE N Roland GRIEVOR Barrister & Solicitor FOR THE P Wiley EMPLOYER Deputy Director Legal Services Branch Ministry of Community & Social services HEARING October 4, 1995 November 15, 1995 ? GSB 0411/95 DECISION The Gnevor Brenda Summerfield worked at the Southwestem RegIOnal Centre (the Centre) whlch IS located near Blenhelm Ontano untIl her dlsmlssal on March 8 1995 for misconduct wluch occurred on February 17 1995 The faclhty IS a resldentlal centre operated by the Mmlstrv of Commumty and Soclal Servlces and serves approxlmately 500 developmentally- handlcapped adults The maJonty of the residents are long-term, and the Centre lS, m effect, theIr home and the staff, thelr surrogate famlly Ms Summerfield had worked at the Centre smce July 8 1985, when she was hlred mto a Developmental Services Worker II pOSItIon, known as ResIdentIal Llfe Counsellor II Her dutIes m this capaCity pnmanly mvolved ongomg, dlrect chent care and contact. Her employment WIth the Centre was contmuous With the exceptlOn of "a few leaves of absence whlch she reqmred followmg the death of her husband m an automoblle accIdent, four years ago She IS the mother of three children, the youngest WIth speCial needs and IS the sole support of thiS faImh She had been placed on a dav-tlme week-day schedule by the Employer to aSSIst her m combmmg the schedulmg demands of her \vork and her famlly TillS letter from the Employer dated March 7 1995, sets out the reasons for Ms Summertield s dismissal Dear Ms Summerfield, I have reviewed the report of the Centre s internalmvestlgatlOn team as \vell as the information pro\'1ded orall\, to me at the meeting on March 6 1995 concernmg the allegations of misconduct made agamst vou. The allegations agamst "ou are as follows 1 On h:bruary 17 ]l)C)5 while on an outlllg with four resldcnts and one fellow staff \OU I Performed pcrsonal errands on war" IlIne (V lolallon of ~Iandards of Conduct Number 3) 2 Drank alcohol 011 work time (ViolatIOn of ~tandards of Conduct Number 10) 3 Faded to provide proper care of the residents in your care, as e\ Idenced by your alcohol consumptIOn (V IOlatlon of Standards of Conduct Number 8 ) 4 Verbally abused a resident (VIolation of Standards of Conduct Number 8) 5 Drove a facility vehIcle after having consumed alcohol (VIolation of Standards of Conduct Number 6). 6 Endangered the well-being of the four residents al}d one fellow staff by driving a facility vehicle, with them as passenger [sic] after havmg consumed alcohol (V 1OlatlOn of Standards of Conduct Number 8) 7 Refused to follow the directIOn of your supervisor by leaving the place of employment after bemg specifically told to remam in the bulldmg until contacted by members of management (VIOlated Standards of Conduct Number 4) * 8 Your behaVIOur during the outing prejudiced the facility s reputation and causes embarrassment to the facility, Mmistry and the OPS (Violation of Standards of Conduct Number 5) I have consIdered all of the information aVailable and It is my view that the above allegations have been substantiated. You have abused your position of trust with facilIty reSIdents and) ou can no longer be employed in a facility providing care to developmentally handicapped individuals. It IS my conclusion that you are in violation of the Standards of Conduct and Disciplinary Guidelmes, and that the appropriate penalty is dismissal. You are hereby dismissed from employment in accordance With Section 22 (3) of the Public SerVIce Act, effective March 8 1995 The Human Resources Department will be In touch with vou regarding your entltlement on termination 'r ou are entItled to gneve your dlslnIssal at the second stage pro\ Ided vou do so \\ Ith1l1 20 \\ or"mg davs. '\ ours truh (Signed) Paul Christensen Adm 1l11strator South\' estern Regional Centre *The Employer is not rel\ ing on Item Number 7 '1 Ms '-,ummcrficld gneved that she had bcen unJustly discIplIned and dIsmissed and \11 her gnl.'vancc, sought rC\l1statcmcnt With full redrcss and thc n:moval of all documcntatlOn tj'Ol11 hcr tile Ms. Summerfield's dismissal took place after an 1I1vestJgatlOn wluch was held follow\l1g an 1I1cIdent on February 17 1995 111 which she played a lead1l1g role The facts of thiS 111CIdent are for the most part not 111 dIspute The follow111g witnesses kstIfied to the events which resulted 111 Ms. Summerfield s dismIssal Brenda Summerfield, The Gnevor Valene Tullo Onet ResIdentIal Counsellor a contract employee who had been employed at the Centre for l1lne weeks when the 111cldent took place She was USll1g her mmden name at the tIme of the ll1cldent (Tullo) but has Sll1ce mamed and uses the surname "Onet" Ms Onet accompanied Ms Summerfield on the outll1g. Brenda Buckley Spouse of the owner of MIke's Place the restaurant where the reSIdents and staff went for lunch, and the person who wmted on the group at the restaurant and who 1l1ltlated the report to the Centre She had kno"'TI V alene Onet for) ears and Ms. Onet had worked at Mike's Place for several months, two years pnor to thIS ll1cldent. Ms Buckle\ did not know Brenda Summerfield Amy Van Hll1tum A first-year Commul1lty College student who had, 111 1992/1993 been a co-op student and \ olunteer at the Centre She worked part-tIme as a v.;altress at MIke s Place and was work1l1g at the time of the ll1cldent. She has knO\vn Val Onet for se\ eral years but was not acquamted WIth Ms. Summerfield. Terry Monk DIrector of ReSIdential SerVIces at the Centre, one of t\\ 0 persons to hold that positIOn He has been an emplo" ee at the Centre for 21 years " j '" Vv endy Pretty Coordll1ator of Volunteer ~crvlccs (for 10 years) and Public Relations (for 1 ,car) She has been an emplO\ee at thc Centre for 24 years Thl C\ Idence shuws that the folloWJl1g e\ enh too!.. place on fehruan 17 1995 Ms ~uml11erfie\d arnved at work. at 0615 and accordll1g to her tcstJl1lOl1\, shl assisted the mght staff to bathe and dress chents and stnp beds and then waited for regular staff to come on and for the shift change report. After the report, she readIed clients for breakfast and earned out the breakfast routme Followmg thIS, the rest of the staff went for mormng break.. Ms. Summerfield did not do so because she was scheduled to go on a van outmg wIth several reSIdents She was ongmally to be accompamed by one partIcular staff member who changed her mmd saymg that she preferred to remaIn at the Centre and catch up on her papenvork.. Ms Onet was then assIgned to go on the outIng At about 0915 hours, Ms. Summerfield testIfied, she went to pICk. up the keys and the government passenger van whIch she brought back. to the Centre The purpose of the outmg was to take four adult male reSIdents to a restaurant for lunch to celebrate the bIrthday of one of them The two counsellors helped the reSIdents mto theIr outdoor clothmg, mak.mg sure accordmg to Ms Summerfield, that 'they had mce clothes on They then assIsted them mto the van, and fastened theIr seatbelts The group, WIth Ms Summerfield dnvmg, set out from the Centre at approxImately 0930 hours m ram\ and rather unpleasant weather a hmItmg factor on the potential range of actlvlt1es accordmg to Ms Summerfield. The t\\O counsellors had some time to put m Ifthe\ were to arnve at the restaurant 111 Chatham at a reasonable tune, and they filled It as follows Thev set out from the Centre and travelled a short distance to the vlllage In which Ms Summerfield reSides and stopped bnefl\ at her house to plCh. up some bllls which she \vas gomg to pay dunng the mommg !\is Onet remall1ed Jl1 the van With the reSidents until Ms Summerfield retumed With a soft dnnk for herself and Ms Ond. They then stopped off at the \vater 5 edge and from the van tned to -t Il1tcrL'st the residents 111 the view rollowll1g a bnef tour around the Village they headed lor e hatham M~ Sumn1l:rtlcld stopped bnenv to pay accounts at two different busll1css lstabltshments and aLcordll1g to Ms Onet, dropped m to check on a tenant. Ms Onet agall1 rcmamed 111 the \ an with the residents and Ms Summerlield confirmed wIth her that she was comfortable dOll1g so Thcy also stopped off at thc Nursery Centre at Ms Onet S slIggcstlOn hoplllg to pIck up a photograph belongmg to Ms Onet and, as an afteIihought, to take the reSidents for a tour of the floral displays, an actIVIty which Ms Onet had taken a reSIdent on prevlOuslv The tour dId not matenalIze nor was the photograph retneved as the Nurserv Centre was closed. They then stopped by Ms. Onet's home to pIck up her bank card as she had not expected to be gOll1g out for lunch that day and was short of cash. WhIle there, she let out the dog If her fiance had been there she testified, she would have mVlted hIm to Jom them for lunch as he IS also a ReSIdential Counsellor, although not WIth the Centre Ms Summerfield dId not object to thIS. although she noted m her eVIdence that It would not have been pOSSIble for hIm to have travelled m the van due to regulatIOns. It was two blocks to the bank machme and once Ms Onet had procured some money, they drove the three blocks to MIke s Place, the restaurant that Ms Summerfield had selected for the outmg, arnvmg at approxImately 1130 hours. It was a restaurant to WhICh she had taken clIents m the past and she stated that It IS usually farrl) qUIet. Ms Summerfield parked the van m front of the restaurant and It was VISIble through the large wmdows from mSIde They then assisted the reSIdents out of the van and mto the restaurant where the\ chose a booth to sIt m and between them, they helped the reSIdents With theIr wmter clothmg, and then Ms Summerfield assIsted them With tOllettmg These prelImmanes completed. they first ordered lunch for the reSIdents, so that they could aSSIst them WIth their meals before havmg their own They both, however deCIded they would order somethmg to drInk Ms Onet ordered a cup of coffee and Ms Summerfield, a double cheny whiskey With coke \ Chen) whlske\ IS a lIqueur-type dnnk With an alcohol content of 23% The alcohol content of regular beer IS 5%. whlle that of wme IS 12%, and that of rve or scotch whlske\ and brandy IS 40% A standard mIxed dnnk of the type ordered would contam one ounce of chen\ WlllShe\ a double two ) The orders were gIven, and when Ms. Buckle\ went to the bar area and \yas prepanng the dnnks she asked Ms Van Hmtum whom she kne\\ had worked at the 5 r t l.ntre II worker~ \\l.re allowed to drink on thl. Jon ~he testllH:d that M~ Van I 11l1tum r<.,pllcd that as rar as she knew thcy \'vcrt: not Once the residents had fimshed their lunch, Ms Summerfield ordered a second double cherry whiskey With coke and when Ms Buckley questIOned this, Ms. Summerfield put her finger to her lips and saId "shhh" Ms. Buckley told Ms Van Hl11tum that Ms Summerfield had ordered another double and Mr Van Hl11tum testIfied that she did not know what to say The second dnnk. was served to Ms Summerfield. Dunng the meal tIme, there was a behavIOur problem With one of the reSidents and Ms Onct was expenenc1l1g some difficulty 111 controlll11g hiS loudness and aggressiveness towards another reSIdent. Ms Summerfield, bemg more expenenced and the counsellor who was more famlhar With the mdlvldual who was causl11g the problem, suggested that she change places With Ms. Onet, and thIS was done Also dunng the meal time, thiS same reSident engaged m some perSistent, verbal behaVIOur, a partIcular behaVIOur which was not unusual for hIm. He kept on repeatmg Where s Joe')" No one was sure exactly who Joe was, as there is a number of l11dlVlduals named Joe WIth whom thIS reSident has had contact. Ms Summerfield apparently found the repeatl11g of thIS comment lITltatl11g on that dav and Said to the reSIdent "Joe S dead and gone to hell or "Joe s dead and burnl11g 111 hell" The eVIdence IS not preCIse on which was smd, ho\\ever It makes lIttle dIfference Followmg thiS, and perhaps m response to It, the reSident put hiS head m hiS hands ThiS comment was perceived by three of the witnesses \\ ho observed thiS, Valene Oriet, Brenda Buckle, and Am' Van Hmtum, as mean-spmted One of the counsellors the eVIdence IS contradictor) as to which, commented to the effect that - It doesn t matter the\ don't understand anywa) Meal time was complete at approxllnately 1315 hours and b) that tIme Ms. Summerfield had consumed two double chern whiskeys With coke that IS, four ounces of a 23% alcohol lIqueur The counsellors pard for the meals and aSSIsted the reSIdents With theIr coats and c:-,corted them out to the van There was no QtSCUsslon about who would dnve Ms Onet 6 tcsttllcd that she dId not mtervene bccausc shc sa\\ no signs of nnpamnent and dId not kno\\ \\hdhcr she had the authont) or the reqUired licence to dnve the vehicle M.... Summerfield claIms that she had no concerns about bemg ImJxHrcd nor did she expenence an" sensatIOns \\hlch would lead her to conclude that she was ImpaIred However Ms Buckley \\as sutTiw:ntly concerned that she discussed the mattcr wIth her employee Ms Van Hmtum and, because of their observ atlOn that Ms Summerfield was dnymg the van With the reSident passengers, they deCided that Ms Van Hmtum would telephone the Centre and mform the Centre of theIr concerns. Ms Van Hll1tum spoke With Ms Wendy Pretty \vhom she knew from her student placement tune at the Centre, and related her observatIOns of what had taken place The counsellors, meanwhIle returned to the Centre, WIthout ll1cldent, stoppll1g to have a conversatIOn along the way With a fnend of Ms Summerfield. Later that e\ emng. Ms Buckle, wrote a letter to T eIT) Monk which he, for whatever reason, did not receIVe He only received a copy of It the week pnor to the heanng In It, Ms. Buckley descnbed the mCldent, stated that Ms Onet's conduct was m no way mappropnate, and mformed Mr Monk that m future, \vorkers commg m WIth clIents would not be served alcoholIc beverages. Ms Pretty promptly reported the substance of the telephone call to Mr Monk and the Manag~r of Human Resources Ms. Summerfield s superVIsor Mr A. Haskell was also contacted. That same afternoon separate meetmgs were held WIth the Gnevor and Ms. Onet At her meetmg, Ms Summerfield dId not denv that she had consumed the alcohol as reported or that she had dnven the van With the reSident passengers, followmg the dnnks She offered no explanatIOn other than. a whIm. She testIfied, that because she was becommg frustrated \\'Ith the questions at the meetmg she "blurted out" II-..now I can dnnh a bottle o\er a period oftnne WIthout effect. Mr Monk testIfied that he asked Ms Summerfield If she felt that she had a dnnkmg problem and she answered that she did not Ms Summerfield explall1ed her attitude dunng the meetll1g as a lad" uf demonstrat1\ eness and testified that after she left the meetll1g the realIty of what v. as happenll1g dawned on her and that she began to cl) She testIfied that she was sorry for what she 7 had done and acknowledged that ~he had comnlltted two wrongs, the Ilr<;t dnnkll1g and dm II1g, the ,>econd making 1I1appropnatl comments to one or the residents "'he c1mmed dunng her cross-e\.am1l1atlOn that dunng the out1l1g she did not consider that her consumptIOn of alcohol Illlght lmp:.m her abllJtv to CaIT) out her dutIes 111 relatIOn to the four resIdents She mdIcated that she 'had the welfare of the clients on lher] mll1d at all times She was also asked whether or nut It concerned her that members of the general public might have been alarmed or upset, know1l1g that she had Just consumed alcohol and observmg her dnvmg a clearly IdentIfiable government van With four developmentally-handicapped reSidents She responded that she "v,ould have assumed not" She did stress that thiS was the first time she had had anyth1l1g to dnnk on the Job and that her abilIty to dnve safely had not 111 her opmJCIn, been comprOiTIlsed The MImstr) of Commumt\ and SOCIal SerVIces Issues Standards of Conduct for all Mmlstr) of Commumtv and SOCIal SerVIces employees The versIOn currently m use was Issued In 1990 and It IS the mtent that these standards are known to all employees so that they are aware of the expectatIOns and the pOSSible results of fmlmg to meet the standards. There was no mdlcatlOn that these were not WI del) promulgated or that Ms Summerfield was Ignorant of them It IS set down that faIlure to meet the standards could result m dIsclplme and that It IS the Mmlstf\ s policy to apply the pnncIples of progressive dIsclplme except m certa1l1 situatIOns there are some offences whIch are so serious as to require severe dlsclplme up to and mcludmg dismissal, for a first offence, e g. unprovoked phYSical assault. fraud, theft, sabotage abuse, unless mitigating factors indicate that a lesser penalty is called for The Standards of Conduct are ten m number and Ms Summerfield was dismissed for a \'101atlOl1 of SIX of them I Dailv punctualit) :2 Attendance at work -; Competence and Productivity Acceptable standard of conduct X ~ Performing wor" accorJ1I1g to the r\?qulrem\?nlS of the positIOn spectlkatlon legIslation amI adn 1I11strative reqlllfements (Hid Hl a comp\?tent car\?ful and productIve manner Lxamplcs of unacceptable conduct -"ubstandard, II1competent and/or careless war" pertormance which is wlthll1 the contfll\ of the employee Spending time on non-work related matters sleeping on the Job 4 Compliance with supervision Acceptable standard of conduct Complying with the dIrectIOns of the employer Examples of unacceptable conduct Refusal to perform work. assIgnments refusal to comply wIth poliCies, statutes, procedures and regulatory/safety requirements ofwhieh the employee IS aware or should reasonable be aware refusal to accept work shifts and overtime. [The Employer is not relying on the violation of thIS standard, although it IS set out m the letter of dIsmIssal) 5 Lawful and honest conduct Acceptable standard of conduct Behaving In an honest and trustworthy manner complying with the law while engaged in the employer's business, and acting at all times in such a manner that the employment relationship IS not undermined. Examples of unacceptable conduct Acceptmg gIfts from clients, Involvement in activities which result in a conflict of interest, dishonest" deceptIOn theft: falSIficatIon of records fraudulent conduct and anv other Illegal conduct mcludll1g contraventIon of the Criminal Code the Varcotics Control Act provmClal statutes, and the unauthorized copying, use and distribution of computer software and other copynghted material 6 Care, use and maintenance of ministry property Acceptable standard of conduct Appropriate maintenance and use of MlI1istry property I::.xamples otunacceptable conduct FaIlure to tak.e reasonable care mcluding regular maintenance and Immediate reportll1g of problems, deliberate damage and/or unauthorized use of Ministry propertv 7 Orderly conduct 8 Appropriate behaviour toward ministry clients Acceptable standard of conduct Treatmg Mlt1lStry clients with digmty and respect and in accordance wIth Mmlstry -approved treatment techl1lques E:-..amples of unacceptable conduct Force used in excess of approved methods assault degradll1g treatment' neglect at clIents failure to pro\- Ide proper service or care to cll\?nts, and am other form of abuse ~ I) Reporting of inappropriate hchaviour toward ministry, clients and of any contravcntion of work rules. 10 NOll-impairment in thc work place Acceptable standard or conduct Fmplovees shall not use or bc IInpalred by drugs, alcohol or any substance which causes IInpalrlnent whdc on duty Examples of unacceptable conduct Bell1g under the influence of alcohol and/or unprescribed substances and/or Improper use of prescnbed substances dunng wor"ll1g hours. ARGUMENT Peter Wile\ Counsel for the Emplojer, submItted that, based on the eVIdence the Board \\as left WIth a sItuatlOn whIch reqUIred the balancmg of competmg mterests - those of the Gne\ or a smgle parent WIth three chIldren and some past dIfficultIes, and those of the Employer \vho 15 charged WIth provIdmg a lOVIng home for Its reSIdents, one In WhICh they are treated WIth dlgmty and respect. It IS Important for the falTIlhes of the reSIdents to feel confident that they can trust the Centre to care for theIr vulnerable famIly member and the Employer In turn must be able to trust ItS employees, to can")' out that care m the best Interests of those who are m theIr charge The comment made to the reSIdent was, m hIS VIew msensltlve msultmg and belIttlmg The Employer must be able to rely on the Judgment of Its pnmary-care gIvers, partIcularly m the SItuatIOn of the outmgs dunng whIch tIme, the reSIdents and the counsellors are outSIde m the commumty and not under the ImmedIate superVISIOn of the Employer Also of slgmficance to the Emplo\ er are the potentIal lIabIlIty should a motor vehIcle aCCIdent occur and there has been questlOnable conduct on the part of those whose responSIbIlIty It was to care for the resldenb and the loss of reputatlOn m the commumty j\.elson Roland Counsel for the Umon, submItted that the Gne\ or has ne\er del1Jcd the fact that she consumed alcohol nor that she ordered doubles and made the mappropnate comment to the reSIdent. Her forthnghtness he stated, rel1eved the Employer of the burden of provmg thest- t\\ 0 parts of the mCldcnt. Mr Roland stated that It should be noted that there wa~ ]0 ~-- " no c\ IdcnCL \\ hat~oever that the alcohol conslImed b'r thL (mL vor had an) IInpamng effect on her Nor he argueu \\as thiS a pattern of behav lOur It \\.as rather an Isolated ll1uuent and there \\a~ not even a suggestiOn that such conduct had occurred previOusly Ill' made the pomt that when the [mplover meted out Its dlSClplll1e, It faIled to turn Its mll1d to the Gnevor S SituatiOn, focussll1g only on the ll1stltutiOn and Its clIents The Junsprudence of the Gnevance Settlement Board, reqUIres such a balancmg on the part of the Employer and there IS no eVidence that thiS Emplo} cr considered a stiff suspensiOn or ll1deed, anythll1g other than dismissal The act of balancll1g the mterests IS, therefore left to the Board. He asked the Board to take mto account the followmg factors mlts consIderatIOn of the appropnate penalty the personal hardshIps that the Gnevor hves WIth, her acceptance of the mappropnateness of her conduct on the day 111 questIOn, her s1l1cere remorse her motivatIOn as sole prOVider for her famll) to not endanger her Job, the fact that she has not found other regular employment. Mr Roland referred the Board to OPSEU (William Pearson) and The Crown in Right of Ontario (lllCSS), (1989) GSB 263/88 (Dlssanavake) In thIS case the Board reiterated certalll pnnclples of balanclllg the mterests of both the Employer, mcludmg the patients for \vhom that Employer IS responsIble, and the employee m SItuatIons of patient abuse These are set down m Rc Samuel Johnston (19**) GSB 7/78 (Adams) WhIle a concern for the welfare of the patIent is of the utmost Importance 111 cases of thIs kmd, Sight must not be lost of the fact that thIS Mmlstry IS also an emplo\ er and Its employ ees have a rIght to be dIsmissed for Just and suffiCient cause and no less. The result IS that the emplover and the Board are obligated to consider and Jccommodate the mterests of emplo\ees \\ here thIS can be done Without Impalrment of the crucialmterests of the patlent. This also means that the mere recitatIOn of 'the patient s interests is, m itself an msufficlent Justification for the terminatIon of an emplovee lfan employer IS of the opinIOn that the patIent s mterests can onh be accommodated b\ an employee s dismIssal, the employer is obligated to establish this fact b, direct evidence and Ms Lovering s testImonv was quae madequate If thiS was ItS purpose Why must the situation be 'black and \\ hlte ') Doesn t thIS latter conclUSIOn depend on the Circumstances surrounding any inCIdent of patient abuse ') Surch an unprO\oked assault WIth mtent to mallll is a vcr\ different situation from an 11 -- ,. I~olated altercatIOn Illitlated In a pallent or from evcn the fach al hand That each of these fact ~Ituallons must be dealt with III the same way because of the Interests of the pallcnts I~ nol self e\ Ident while she was not prepared to risk the Inlerests of the pallcnts by contll1ull1g to L1llplov someone like the grlevor although If this Board \\as prepared to assume such responsibility tillS was lip to It. Vv Ith all due respecI, tillS Board and the employer have obligations 10 both employees and patients and a genull1c effort must be made 10 accommodate both II1lerests Only when tIllS can t reasonabh be done must the employee s interest give way \urcly at the very least, the employer is obligated to as;ess thL extent of risk associated \\ Ith an employee s continued employment and, in appropriate Circumstances, to consider the \ labIlity of alternative placements on a permanent or probationary baSIS as well as other intermediate punitive measures. It is not a matter of one general intercst ecllpsmg another no matter what the Situation Rather It is thc delicate and pam staking analysis of what IS the most appropriate result ha\ Il1g regard to the particular situation at Issue DECISION The Gnevor and the Umon acknov.ledge that Ms Summerfield ( a) was responsIble, along wIth Valene Onet, for four developmentallv-handIcapped adult male reSIdents on F ebruan 17, 1995 dunng an outing (b) was responsIble for the mIntstrv vehIcle, (c) undertook. certain personal errands (d) ordered and drank 2 double cherry whIskevs WIth coke In a tall glass, (e) made an Inappropnate and hurtful comment to one of the four reSIdents and made thIS comment In a publIc place (f) left the restaurant, haVing had the dnnks, and, after settlIng the reSIdents In the mIl1lstn van. drove to the Centre Based on the eVIdence presented, I am prepared to confirm the above ad..no\\ ledgements as fact and to mak.e the followmg findmgs (a) the group arnved at the restaurant at 11 -:;0 and departed at 1300 hours 12 " (h) thelt, alhmlllg r(lr 15 mlllllte~ at either end of the ~ta\ M" S lImme rlidJ had 4 Ollnee" 01 2~1l () .dcohol \"Ithm an hour along \'/lth eoke and food (c) thL departure tllne from the restaurant and rdurn tllne to the t~lCllit\ were 1300 and 1410 hours respectIvelv and therefore Ms Summerfield \Vas dnvmg the van with the reSidents and Ms Onet for 1 ~ 2 hours, follo\vmg her consumptIOn of alcohol except for stoppll1g for a 'few mmutes (d) Ms Summerfield ordered her first dnnk without consldenng whether or not she might bc compromisIng her abIlity to carry out her dutIes and responsIbIlItIes, and Ignonng the Standards of Conduct, (e) Ms Summerfield ordered her second dnnk, and confirmed that order followl11g the questlOmng of the advIsabIlIty of her dOIng so agaIn Ignonng her responsIbIlItIes and the Standards of Conduct; I make the folloWIng find1l1gs wIth respect to Ms Summerfield s contraventIOn of the MInIstr) s Standards of Conduct whIch are set out above (3) Competence and productivity She attended to personal matters dunng workIng hours and whIle haVIng the care of and responsibIlIty for four reSIdents Further she compromIsed her competence bY consummg alcohol, and nsked the safet} of these reSIdents and another staff member as well as herself by dnvmg dIrectlv followmg her consumptIon of alcohol (5) Lawful and honest conduct She faIled to act m a trustworthy manner, m that she put the Employer s reputation as a care provIder, 111 questIOn bv her conduct 111 publIc - that IS. her mappropnate comments to one of the reSIdents her consumptIOn of alcohol whIle 111 a pOSItIOn ofresponsIblht\ and tinally b\ dnvmg a go\ernment van after consummg 4 ounces 01'23% alcohol dunng a penod an hour She dId beha\ e m an honest manner when confronted WIth the allegatIOns (6) Care, use and maintenance of ministry property She dro\ e a gO\ ernment \ chicle dIrectlv follo\vmg the consumptIOn of 4 ounces of 230 0 alcohol dunng a penod of an hour She used the gO\ emment \ chIcle for personal errands 13 0':) Appropnate beha"jour to\\'ard minIstry cht'nh Her comment to one of the residents \\<lS lI1appropnate and appear,> to ha" c an~en from Irntablhty on her part The comment was bcltttlmg and II1sensltl\ e and comproll1lsed the dIgl1lty of and respect for the resident Il1 questIOn I twas Il1 the 10\\ range of abuse (10) Non-impairment in the work place Ms :-'ummerfield used alcohol whIle on duty and was therefore under the mf1uence of alcohol dUrIng work.lI1g hours The fact that Ms Summerfield dId not conSIdered herself ImpaIred ll1 any way or that others dId not observe her unpaIred", does not mean that she dId not VIOlate thIS standard. One does not have to have slurred speech or an unsteady walk to be 'under the Influence and to have one's Judgement and facultIes affected One can be under the ml1uence without bemg unpaIred accordmg to the legal standard \vhlch IS apphed m the case of dnvmg, or Without bcmg mebnated, mtoxlcated or drunk. There IS no doubt that the conduct of the Gnevor was selfish, msensmve, thoughtless and Irresponsible It showed a senous, temporarv lack of Judgement and contempt for the Standards of Conduct. As such the Gnevor S behavIOur attracts dISCIplIne at the high end of the scale The questIOn IS, should It attract diSCiplIne at the vel'} top of the scale, that IS, dlslTIlssal The Board has two optIOns It may reduce the penalty of dIscharge With or Without condItions, or It may uphold the dISlTIlssal, effectl\ ely termInatIng the elght-} ear career of Ms Summerfield as a Developmental Services Worker or ReSIdentIal Counsellor It \-vould be unusual If upholdmg the dlsnllssal dId not bar her from further emplovment m thIS field and m the current chmate that could mean from emplovment for a conSIderable length of tlme The Board S JUrIsprudence has estabhshed a prInCIple whIch balances the mterest of employer and employee c\ en when the employer has the responsibIlIty of patIents or clIents The presence of the patIents or clIents, accordll1g to thIS prInCIple, artIculated above Il1 Pearsoll and j}lCSS and 111 Samuel Johnston does not negate conSIderatIOn of rell1statement of Gnevors In cases 111\ 0lv1I1g care of and responsIbIlIty for patIents or clients In the latter case the Board re1l1stated a ReSIdentIal Counsellor WIth fi\ e years servIce after conclud1l1g that he had kIcked a female patient causmg her eve to swell and dlsco]our In the former case the Board 111 \\elghmg the negatl\es and pOSItives \\oule! have n:ll1statcJ a ReSidentIal Counsellor With ]4 /' Llghtccn. liISClplll1c-frec years of service to hIS position after concludll1g that his stnkll1g of a dlLl1l1l1 a momentar", loss of temper was not premedItated or malIcIous and not lI1tcndcd to II1jurc The Board was. howc\ cr prevented from rell1statll1g him to that position bv a 11l11ltatIon placed on the Gne\ance Settlement Board with respect to rcturnl!1g an cmployee v.orkll1g 111 a faCIlIty who applIed force to a resident III the facility except the minimum force necessary for self-defence or the dcfence of another pcrson or necessary to restrain the resident. [t did, ho\vever replace the dismissal with a suspenSIon and loss of semonty and ordered hIm rell1stated to a substantIally eqmvalent posItIon, one whIch dId not lI1volve responsIbIlIty for or dIrect contact wIth patIents The Standards of Conduct document lIsts a senes of offences which are so serious as to require severe discipline, up to and including dismissal, for a first offence, e g. unprovoked physical assault, fraud, theft, sabotage, abuse, unless mitigating factors mdicate that a lesser penalty IS called for All of these offences could attract cnmmal charges Those commItted by Ms Summerfield would not normally although, her alcohol consumptIOn and dnvlI1g could potentIally have done so had she been stopped by polIce or had an accident and her blood-level been over the legal hmlt. The abuse, m the form of the hurtful comments, would, m the Board's opmIOn. be at the low end of the range That IS not to mmImIze the effect of verbal abuse or of the substance of the comment made and the effect WhICh It could have on the resIdent. The comment was made b\ one of the counsellors that "the v don't understand" Implymg that therefore It IS of no Import that such a comment \vas made to one of the residents The Board wishes to pomt out that such thmkmg IS sImply \vrong-headed. One cannot conclude because an mdlvldual s mtellectual capdclt\ and abIlIty to commU\11cate are limIted, even severely that the comments of others hm c no Impact on them. One must assume that one s comments and actIOns do have an effect on them and because they are not able to artIculate am response one must be even more conscIOus ot protectmg them from hurtful v..ords and actions The Board was struck b\ the Gne\or S Ignorance and nan ~te around the consumptIOn of 15 -.-..- - ,- alcohol It appear" from her e\ Idenee that she equatLs "lIl1pam:d \\ Ith Into'.lCated Onl doc,> not havl to be ~taggenng or speak\l1g In a slurred manner tor alcohol to he ha\\I1g an died on one "'.1 udgement and rcflc'.es WhIll there was no e'.pert C\ Idenee adduced III tlm rL/.-,ard thI'> Board linds It dl flicult to beIJeve that the consumptIOn of 4 ounces of 23% wlthlll an hour even wIth a Il1I\. and food would not produce some effect Il1 an IIldl VIdual of Ms Summerlie1d s bo(.1\ weIght that could negatIvely affect her abIlIty to carr) out the vanous dutIes she \\as charged wIth on the day of the II1cldent. After an exammatIOn of the eVIdence, and consideratIOn of the parties' arguments and the Gnevance Settlement Board's junsprudence around the balanCing of mterests, I have concluded that thIS IS a case m which I should exercIse my discretIOn to mItigate the dIsmIssal Ho\vever as noted above I put the combmed actIOns of the Gnevor on the day m questIOn and her VIOlatIOns of the Standards of Conduct as conduct worthy of attractmg dISCIplIne at the hIgh end of the scale Therefore I am substltutmg a lengthy suspensIOn, the length of the absence, that IS approxImately one year, and order that she be remstated, at the convel1lence of the Employer on or before March 18, 1996 Ms Summerfield wIll also lose her sel1lonty for the penod In questIOn. Further, as a conditIon precedent to her returmng to work, I am requmng that she attend for alcohol awareness trammg eIther through the Employee ASSIstance Programme, the AddlctIOn Research FoundatIOn or an) other orgal1lzatIOn whIch IS approved b, eIther of the agenCIes It IS the responSIbIlIty of Ms Summerfield to arrange thIS. The Board also belIeves that Ms. Summerfield s commUl1lcatIOn and senSItIVIty skIlls WIth reSIdents could be Improved and WIth a Vle\\ to helpmg the partIes focus on that the Board IS recommendmg that the F mplo\ er assIsts her In establIshing some goals upon her return and that for the follOWing veal' performance appraIsals be carned out quarterl\ L p untIl the afternoon of februan 17 1995 the Employer was prepared to place Its trust II1 \1s I..,ummerfield and gl\'e her the unsupen Ised pnmar\ shared responslbJilt\ for four reSIdents and to entrust to her the operation of a mInIstry \ ehlde With them and a staff membu- as passengers On that da) Ms Summerfield made a senes of ChOlll S \, hlch caused the 16 - fl~IJlllt~ and to entrust to her thl.- operatIon of a 11111ll<;tn Vd11lk wIth them and a staff l11em!xf as passengers On that day M<; \ummerlicld, mack a senes of chOIces which caused the Lmplovcr to questIOn whether or not It could place patlcnts In her care Il1 future ~he IS solely responsible for thiS loss of trust and she WIll bc solely responsible for Wll1nlng It back Should the bnplovcr choose to place certain restnctlOns on Ms ~ul11mcrfield such as on her operation of mlnlstrv vehicles for a penod of time follOWing her reinstatement, or the reqlllrement to tile an actl\l1\ plan before outings, the Board would not consider thiS Inappropnate The Board wIll remall1 seized of thiS matter Il1 the event that the partIes require an) assistance With Its ImplementatIOn. - Dated at L'-. '- H. S F Il1ley, V Ice-chair /{ / ! J 17