HomeMy WebLinkAbout1997-0004.DOMACINA98_04_28
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
.
_ _ GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (4H5) 32(j-13~
GSB #0004/97
OPSEU #97B3 80
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Domacma)
Grievor
- and -
The Crown m RIght of Ontano
(Mimstry of Health)
Employer
BEFORE S Stewart Vice-ChaIr
FOR THE C Flood
UNION Counsel
KoskIe Minsky
Barnsters & Sohcltors
FOR THE D Strang
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARING July 2, September 10, 17, 1997
October 6, 7, 1997
November 13, 1997
December 3, 22, 1997
DECISION
The grievor, Mr D Domacina, was employed as a Registered
Nurse at the Queen Street Mental Health Centre He commenced his
employment in that position in February, 1989 Mr Domacina
became a Registered Nurse in 1977 Prior to working in his
current position, Mr Domacina had worked for the Employer as a
Registered Nursing Assistant
The grievance before me arises from Mr Domacina's
dismissal There was no objection to my jurisdiction to hear and
determine the matter Mr Domacina was discharged by letter
dated February 7, 1997, signed by Allison Stuart, Administrator,
the text of which states as follows
I have reviewed information from Mary Dwyer and Ellie
cifra, Nursing Coordinators, Nursing Services,
concerning two incidents relating to your inappropriate
behaviour with a staff member and an allegation of
patient abuse
An investigation determined that you acted in an
inappropriate manner towards a co-worker This is not
the first incident of such behaviour You have
previously been suspended for 15 days for verbal sexual
harassment against a co-worker This latest incident
shows that you have not taken our instruction and you
have not corrected your behaviour
The second incident involved the physical assault of a
patient This witnessed incident of patient abuse and
your subsequent inaccurate and misleading reporting of
the events are not acceptable
As a result, you are dismissed from your employment at
the Queen Street Mental Health Centre effective
February 7, 1997, 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 You are
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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 22 8 2 of the ontario Public
Service Employees Union Collective Agreement
There was an issue in this case relating to the use of
certain documents in Mr Domacina's file The issue arises from
the following provision of the Collective Agreement
22 15 DISCIPLINARY RECORD
22 15 1 Any letter of reprimand, suspension
or other sanction will be removed
from the record/files of an
employee three (3) years following
the receipt of such a letter,
suspension or other sanction
provided that the employee's
record/files have been clear of
similar offences for the past three
( 3 ) years Any such letter of
reprimand, suspension or other
sanction so removed cannot be used
in any subsequent proceedings
There was no dispute that certain documents which ought to
have been removed from Mr Domacina's file in accordance with
this provision remained in his file and were reviewed by Ms
Dwyer This review, along with her investigation of the
allegation of patient abuse, formed the basis for a report
prepared by Ms Dwyer, in which Mr Domacina's termination was
recommended The report was received by the ultimate decision
maker, A stuart Ms stuart's unshaken testimony was that in
reviewing the entire matter in the context of determining the
appropriate Employer response, she was fully cognizant of the
provisions of Article 22 15 1 of the Collective Agreement and
3
applied it to exclude consideration of "stale" matters which
ought not to have been considered pursuant to that provision
It is the Union's position that Mr Domacina's termination
is a nullity In this regard, Mr Flood referred the Board to
decision of the ontario Court of Appeal in Molson's Brewery
(Ontario) Limited and Local 304, Canadian Union of united
Brewery, Flour, Cereal, Soft Drink and Distillery Workers
(unreported decision dated June 14, 1983) in which a decision of
the Divisional Court quashing an arbitrator's award was upheld
(unreported decision dated December 30, 1982) , except in relation
to the Divisional Court's remedial order Article 11 of that
Collective Agreement provided as follows
In the imposition of discipline, if an
employee has not been formally disciplined
for the same or a related offence for an
interval of one year (two years in the case
of suspension) his previous offences will not
be referred to But, in any event,
discipline imposed will not be referred to
after the expiry of three years from the date
of discipline
The grievor in that instance was discharged by letter,
signed by a supervisor, in which specific reference was made to
his prior discipline record as a consideration in the decision to
discharge The evidence established that the supervisor had
considered the disciplinary record of the grievor without
limiting consideration as contemplated by the Collective
Agreement On the basis that the ultimate decision-maker, the
vice-president of personnel, had not reviewed the record, it was
4
argued that there was no breach of Article 14 The arbitrator,
at p 12 of the award (November 17, 1981, Saltman) accepted the
Employer's position in that regard, but went on to say that there
may have been a "technical breach" of Article 11, but that since
the provision was directory, rather than mandatory, the discharge
was not nullified
The Divisional Court commented on the matter as follows at
p 4
Even though Mr Burkett was the senior management
person involved in making the decision to discharge, we
cannot regard the arbitrator's findings as meaning that
the recommendations of Mr Burtt and Mr Busch were not
to be given any weight in the situation It would be
unreasonable to suggest that their recommendations
would be completely disregarded by Mr Burkett in
making his decision
At pp 5-6 of the decision, the Court went on to state
In this case, for the reasons I have given, we are
satisfied that the company did attach some weight to
the prior offences or the discipline record in its
decision-making process and therefore, it acted in
breach of Article 11 on any reasonable interpretation
The arbitrator decided that Article 11 was directory
only In our view, the interpretation of the clause is
not one which the words of the collective agreement
reasonably can bear If Article 11 were directory
only, it would be of no value whatsoever to the members
of the union and might just as well not be in the
agreement We are of the view that it is a mandatory
clause and that the company was in breach of it in this
case That being so, the discharge of the grievor was
not in accordance with the terms of the collective
agreement In our view the respondent company had no
right under the collective agreement to discipline or
discharge the grievor in circumstances in which it
attached significance or weight to his prior discipline
record
For those reasons we quash the arbitrator's award and
5
remit the matter back to the learned arbitrator with
instructions to give proper effect to Article 11 of the
collective agreement in accordance with our reasons
Even if I were to accept that Article 22 15 1 of the
Collective Agreement at hand is entirely analogous and ought to
be interpreted in a similar manner, I am unable to conclude that
the facts of this case before me ought to compel a similar
result The facts in the Molson's case differ significantly, in
that the letter of discharge specifically made reference to the
grievor's record which ought to have been excluded, while the
letter of discharge here does not make reference to such matters
The letter here makes reference to the one matter that the
Employer was entitled to rely upon Moreover, given Ms stuart's
testimony that she was mindful of Article 22 15 1 in assessing
the matter, it is my finding that the Employer did not attach
significance or weight to matters that it ought not to have
Accordingly, I am unable to accept that the circumstances in this
case can support the conclusion that the Union urges upon me In
the result, the merits of Mr Domacina's discharge are
appropriately dealt with as in the ordinary course, by my
adjudication of whether the Employer has met the onus of
establishing just cause
It was conceded by the Employer that the incident involving
a co-worker would not have formed the basis for discharge It
was, however, the position of the Employer that the incident of
patient abuse was of such a serious nature that it alone
6
justified the ultimate penalty of discharge Ms stuart
expressed this view in her testimony
I turn now to the allegation of patient abuse It was
acknowledged that the patient sustained an injury to his face as
a result of an incident involving Mr Domacina, however, Mr
Domacina maintained that he was not the aggressor and that he
engaged only in a reflexive action of self defence It was the
position of the Employer that the evidence supports the
conclusion that the injury to the patient arose from an
aggressive as opposed to defensive action on the part of Mr
Domacina
Mr L Whyte, Registered Practical Nurse, testified that he
saw Mr Domacina follow the patient down the hall and that he
then observed Mr Domacina strike the patient He described the
patient as attempting to block the hit Mr Whyte further
testified that after the incident Mr Domacina approached him and
said "What you saw you didn't see" Mr Whyte was not a member
of regular staff He was employed through an agency Mr Whyte
had worked elsewhere in the hospital on a regular basis but had
only worked on this ward on one occassion previously, some time
prior to that day There had been some innocuous discussion
between them, however there was no suggestion in the evidence of
any animosity on the part of Mr Whyte toward Mr Domacina
7
Just prior to the incident involving Mr Domacina and the
patient, who will be referred to as Mr A, a plastic bottle of
ginger ale had been thrown Mr Domacina testified that while he
was at the nursing station he heard raised voices When he went
into the hall he saw a bottle hit the wall Mr Domacina
testified that he concluded that Mr A had thrown the bottle He
further testified that he did not conclude that the bottle had
been thrown at him, nor did he become angry as a result
According to Mr Domacina, Mr A left the area to go to his room
Mr Domacina testified that shortly afterward, he went to Mr A's
room to pacify him
Mr Domacina testified that when he approached Mr A, Mr A
told him not to come any closer He testified that he did stop,
but that Mr A then lifted both his hands and lunged toward his
face Mr Domacina testified that he raised his hands to push
Mr A's hands away from his face, that his little finger struck
the tip of Mr A's nose and that Mr A's own hands struck his own
face as a result of Mr A losing his balance Mr Domacina's
evidence was that he noticed that Mr A's face was reddened, but
that he did not appear to be injured or distressed Mr Domacina
denied that he walked toward Mr Whyte, testifying that he walked
the other way He denied that he made the statement that Mr
Whyte attributed to him, testifying that said nothing to Mr
Whyte at this time Mr Domacina testified that he went back to
check on Mr A and noticed tissue in his nose that he thought was
8
bloody As well, he noticed an abrasion on Mr A's cheek, which
he described as "chipped"
Mr Domacina testified that when he saw the injuries he felt
that he had to report the matter and have the patient seen by a
doctor Mr Domacina reported to Mr Rodilla, his supervisor, that
Mr A had been injured but that the patient could not explain the
origin of his injury Mr A was seen by a doctor who had come in
to see other patients Mr Domacina prepared two reports of the
matter, in the clinical notes and the patient condition report,
both of which indicate that he was unaware of how Mr A was
injured His report in the clinical notes states
At 10 00 noticed to have [right] side of his
face red Asked about the origin of it and
threatened to hit the staff Remains suspicious
and angry
Mr Domacina acknowledged the misleading nature of his written
reports and his communication with Mr Rodilla He testified
that he "panicked" and that he felt that if he explained what had
happened he would be found to be at fault and would be terminated
immediately He made reference to a previous termination, in
circumstances which he described as a "total fabrication" In
that case the Employer replaced the termination with a twenty day
suspension This Board, in a decision dated September 26, 1995,
determined that verbal sexual harassment had taken place but a
threat that had been alleged had not been proven, ultimately
reducing the penalty to fifteen days Mr Domacina testified
9
that he intended to provide an accurate version of the events to
his regular supervisor Ms J Almond, the next day When Mr
Domacina was asked about the incident in the course of the
Employer's investigation he acknowledged that he was aware of the
origin of Mr A's injuries, and explained that his actions were
defensive
There was evidence adduced relating to other events taking
place around the time of and subsequent to the incident involving
Mr A and Mr Domacina Mr Whyte testified that he and another
RPN, N Wheatle, were assisting a patient to the washroom when,
as previously indicated, he saw the patient and Mr Domacina walk
by and then saw Mr Domacina hit the patient Mr Whyte
testified that Ms Wheatle would have seen the two pass by and
would also have seen Mr Domacina come back to speak to him
He was uncertain, however, whether Ms Wheatle would have heard
what Mr Domacina said He testified that Ms Wheatle asked him
if the patient had been hit and that he did not reply
Ms Wheatle confirmed Mr Whyte's testimony that she asked
Mr Domacina whether the patient had been hit and that he did not
reply While she also testified that she and Mr Whyte were
attending to a patient, her recollection of precisely what they
were doing at the relevant time differed from his According to
her evidence, she did not see Mr Domacina or the patient passing
by, nor did she hear Mr Domacina say anything She testified
.
10
that she heard a noise like a scream and she then went to the
hall, at which point she saw the patient standing in the hall in
front of his room At this time, she testified, she asked Mr
Whyte, who was in the hall, if the patient had been hit
In his written statement, Mr Whyte referred to having
confirmed that the patient had been hit when asked about it by
another nurse He testified that he did so during a conversation
about the incident which took place among nursing staff during a
break Present were Mr Whyte, Ms Wheatley, T Habacon, RPN,
and B Barron, RPN Ms Barron testified that she made reference
to a statement made by the patient about the cause of his
injuries I note, parenthetically, that there were a number of
statements attributed to the patient in the course of the
evidence The patient was not called to testify and there was no
dispute that the hearsay statements attributed to the patient
could not provide a basis for a finding of fact Mr Whyte
testified that when the matter was raised he said that he had
seen Mr Domacina hit the patient
The evidence of the other persons differed to some extent
about precisely what was said at this time Ms Wheatle
testified that Ms Barron referred to the patient, stating that
he must be confused, and that Mr Whyte then stated that the
patient was not confused, and that what the patient said was the
truth Ms Barron's testimony was that she referred to the
11
patient being "paranoid" and that Mr Whyte responded by saying
that the patient was not paranoid, that the patient was telling
the truth, and that he had seen what had happened Ms Barron
testified that Mr Whyte also made reference to being a Christian
and indicated that if he had to report the incident he would
According to her testimony, Mr Whyte said that he had seen it,
but did not specifically describe what he had seen Ms Habacon
testified that Ms Barron referred to Mr A being suspicious,
petrified, scared and paranoid She initially testified that she
did not remember a response, however she subsequently stated that
she recalled Mr Whyte responding referring to being a Christian
and stating that he would testify about the matter if asked to
Mr Whyte testified that following the incident, Mr
Domacina told him that Mr A had thrown a drink at him Mr
Whyte understood Mr Domacina to be providing him with an
explanation for his actions Mr Whyte was asked about the
matter later that day and he provided a verbal and written
statement about the matter Mr Whyte's initial written
statement refers to Mr Domacina having hit the patient with his
left hand, on the left side of the face, however the document is
corrected, indicating the right fist and the right side of the
face Mr J Rodilla, Nursing Co-ordinator, to whom Mr Whyte
provided the verbal and written statements, testified that he
noted a discrepancy between the verbal and written statements and
brought it to Mr Whyte's attention Mr Whyte indicated that it
12
was in fact the right fist and right side of the face and the
statement was amended accordingly In his testimony before me,
Mr Whyte maintained that it was in fact the right fist of Mr
Domacina which hit the right side of the patient's face, and that
he had initially made an error in the written statement that he
had provided
Mr Whyte maintained the version of events to which he
testified throughout an extensive and vigorous cross-examination
He testified that he had a clear and proximate view of the
events, and that he was certain about what he had seen and what
Mr Domacina had said to him He acknowledged that he should
have reported the matter right away, but testified that he felt
in a "difficult position" Mr Domacina also maintained that the
version of events that he testified to was accurate Mr
Domacina acknowledged that he knew of no reason for Mr Whyte to
fabricate such serious allegations, however he maintained that
the events as described by Mr Whyte simply did not take place
I agree with Mr Flood that the Employer is obliged to
establish serious allegations of this sort on clear and cogent
evidence I also agree with Mr Flood that the comments of the
British Columbia Court of Appeal in Farvna v. Chornv [1952] 2
D L R 354, are of particular relevance in a case such as this,
where credibility is at issue At pp 356-7 the Court states as
follows
I
13
If a trial Judge's finding of credibility is to depend
solely on which person he thinks made the better
appearance of sincerity in the witness box, we are left
with a purely arbitrary finding and justice would then
depend upon the best actors in the witness box On
reflection it becomes almost axiomatic that the
appearance of telling the truth is but one of the
elements that enter into the credibility of the
evidence of a witness Opportunities for knowledge,
powers of observation, judgment and memory, ability to
describe clearly what he has seen and heard, as well as
other factors, combine to produce what is called
credibility, and of Ravmond v. Bosanquet (1919) , 30
D L R 560 at p 566, 59 S C R 452 at p 460, 17 0 W N
195 A witness by his manner may credit a very
unfavourable impression of his truthfulness upon the
trial Judge, and yet the surrounding circumstances in
the case may point decisively to the conclusion that he
is actually telling the truth I am not referring to
the comparatively infrequent cases in which a witness
is caught in a clumsy lie
The credibility of interested witnesses, particularly
in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of
the particular witness carried conviction of the truth
The test must reasonably subject his story to an
examination of its consistency with the probabilities
that surround the currently existing conditions In
short, the real test of the truth of the story of a
witness in such a case must be its harmony with the
preponderance of the probabilities which a practical
and informed person would readily recognize as
reasonable in that place and in those conditions Only
thus can a Court satisfactorily appraise the testimony
of quick-minded, experienced and confident witnesses,
and of those shrewd persons adept in the half-lie and
of long and successful experience in combining skilful
exaggeration with partial suppression of the truth
Again a witness may verify what he sincerely believes
to be true, but he may be quite honestly mistaken For
a trial Judge to say "I believe him because I judge him
to be telling the truth", is to come of a conclusion on
consideration of only half the problem In truth it may
easily be self-direction of a dangerous kind
The trial Judge ought to go further and say that
evidence of the witness he believes is in accordance
with the preponderance of probabilities in the case
and, if his view is to command compliance, also state
his reasons for that conclusion The law does not
clothe the trial Judge with a divine insight into the
14
hearts and minds of the witnesses And a Court of
Appeal must be satisfied that the trial Judge's
findings of credibility is based not on one element
only to the exclusion of others, but is based on all
the elements by which it can be tested in the
particular case
After a careful review and assessment of all of the evidence
in light of the foregoing principles, I am compelled to the
conclusion that the version of events testified to by Mr Whyte
is to be preferred to that testified to by Mr Domacina The
most striking aspect of the matter, of course, is that Mr Whyte
had absolutely no motivation to fabricate these very serious
allegations His evidence had the ring of truth throughout
There were certain inconsistencies in the evidence as to
precisely what was said at the break and, in relation to the
testimony of Mr Whyte and Ms Wheatle, precisely what transpired
around the time of the incident As well, there was the matter
of the initial reference to "left" rather than to "right" in Mr
Whyte's written statement Notwithstanding Mr Flood's very able
submissions, in which these matters were emphasized, I am unable
conclude that Mr Whyte's testimony about what he observed should
be doubted The unlikely possibility that Mr Whyte could have
been mistaken as to what he observed is rendered even more remote
by Mr Domicina's statement, "what you saw you didn't see" to Mr
Whyte subsequent to the event I am satisfied that this
statement was made This statement is a clear indication of
recognition of culpability in connection with the matter Even
if I were to accept Mr Domacina's position that his preparation
15
of misleading records was based on a reasonable or at least
sincerely held apprehension that the Employer would seize on the
matter to terminate him, notwithstanding his innocence, I am
satisfied, on the evidence before me, that Mr Domacina did
strike a patient and that his actions were not in self defence
Both counsel referred me to cases involving assaults on
patients There is no need to review these decisions in any
detail The cases refer to the high degree of trust that must
rest with those persons who are charged with the responsibility
of care for the vulnerable While I agree with Mr Flood that
each case must be decided on its particular facts, and all
relevant matters must be considered, it is my view that the
ultimate sanction of discharge is warranted Mr Domacina's
seniority is not particularly great and there is a fifteen day
suspension on his record Mr Domacina's obligation to support
two young children and the consequences of an adverse finding in
this matter in relation to his future employment prospects are
considerable and important matters However, in the
circumstances of this case, where a person in a position of trust
has struck and injured a patient, has attempted to intimidate a
co-worker to avoid responsibility for his actions and has
ultimately failed to fully acknowledge his actions, the factors
that weigh in Mr Domacina's favour cannot properly be viewed as
a basis for mitigating the penalty of discharge
.
16
Given this conclusion, there is no need to deal with the
other matter that the Employer relied on in discharging Mr
Domacina Even if I were to conclude that no discipline ought to
arise from his involvement in that matter, I agree with Ms
stuart's assessment that the matter involving Mr A is, by
itself, in all of the circumstances, grounds for discharge
For the foregoing reasons it is my conclusion that just
cause for the discharge of Mr Domacina has been established and
there is no proper basis for the mitigation of the penalty The
grievance is therefore dismissed
Dated at Toronto, this 28th day of April, 1998
~~ ~,
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. \
S :s-te~ Vice-Chair