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HomeMy WebLinkAboutCarley 18-08-30 In the matter of an Arbitration Between: Ontario Public Service Employees Union, Local 439 and Brockville Mental Health Centre (Member of the Royal Ottawa Health Care Group) Grievances of Shana Carley Andrew Tremayne, arbitrator Appearances: Julia Williams, Kevin Hudson, Sherri Haley, and Shana Carley for the union Marie-Pierre T. Pilon, Alicia Bouchard, and Emily Deacon for the employer Hearing held on June 5, 7, and 11, 2018 at Brockville, Ontario Award issued on August 30, 2018 at Ottawa, Ontario 2 Background and Introduction 1. This hearing concerned two grievances in which the union complained about two disciplinary letters that the employer gave to the grievor. 2. The Brockville Mental Health Centre is a specialized mental health facility. Among other things, the Centre provides clinical care for the residents of a Secure Treatment Unit which is housed within the St. Lawrence Valley Correctional and Treatment Centre. The Ontario Ministry of Community Safety and Correctional Services (MCSCS) owns and manages the facility and the Royal Ottawa Health Care Group (ROHCG) provides mental health treatment and services to the residents, all of whom are male adults who have been convicted of a criminal offence and sentenced to a period of incarceration. 3. MCSCS employs the corrections staff and is responsible for security at the Centre. The ROHCG provides the doctors, nurses, and paramedical staff, and is responsible for treatment programs. 4. The grievor, Shana Carley, has been employed by the ROHCG at the Centre since 2002. She works as a Charge Technician in the Venipuncture Lab where she oversees the work and makes sure everything runs smoothly. Ms Carley works in the Secure Treatment Unit (STU) and she interacts with the residents on a daily basis. 5. On July 18, 2017 Ms Carley was given a letter of direction because she used inappropriate language about a co-worker during a meeting with her manager and director that had taken place on May 19, 2017. 6. The union has filed a grievance on her behalf, saying that the meeting was private and that in light of the circumstances, it was not reasonable for the employer to discipline Ms Carley for her comments. 7. A few months later, Ms Carley was given a written warning when long coloured pencils, which are considered contraband, were discovered in the room of a resident. After an investigation, the employer concluded that Ms Carley had given the long pencils to the resident so that he could prepare a poster for a work-related social event, which he was doing at her request. The written warning, which is dated November 29, 2017, says that Ms Carley failed to seek management approval when she asked the resident to prepare the poster and when she gave the resident long pencils. The warning also states that Ms Carley breached safety and conflict of interest policies and that she went beyond the scope of her professional duties. 3 8. The union says that Ms Carley asked about the long pencils and that corrections staff approved their use by the resident. The employer’s concerns about conflict of interest and Ms Carley acting outside of her professional duties are overblown, and its investigation into the incident was flawed, argues the union. As a result, it was not reasonable for the employer to impose any discipline on Ms Carley, even the relatively minor sanction of a written warning. 9. For the reasons set out below, I find that Ms Carley’s conduct during the May 19, 2017 meeting with her manager and director does not warrant discipline. The employer did not have cause to issue the letter of direction to Ms Carley for this incident. As a result, the first grievance is upheld. 10. With respect to the second grievance, I have carefully considered Ms Carley’s role in this incident, and for the reasons set out below, I find that her conduct does warrant discipline. The employer’s concerns, particularly about the serious safety risks of giving long pencils to a resident in the STU, are reasonable. It was Ms Carley’s decision to ask the resident to prepare a poster. She was responsible for ensuring that this was done safely and with minimal risk to staff and residents, and I find that she did not do so. 11. The employer’s concerns about the conflict of interest and Ms Carley acting outside of her professional duties could have been addressed through non-disciplinary and more broadly applied measures such as staff training or coaching, but the safety risk caused by the long pencils, by itself, warrants discipline. I find that in light of all of the relevant considerations, the November 29, 2017 letter of warning was an appropriate response. As a result, the second grievance is dismissed. The Meeting Incident Evidence 12. Lisa Kis has been the Manager of Central Services at the Brockville Mental Health Centre since February 2015. She is Ms Carley’s manager. On May 19, 2017, Ms Carley asked to meet with her and with Emily Deacon, the director to whom Ms Kis reports. Ms Carley asked to meet so that she could discuss concerns about her working relationship with a co-worker. Ms Kis was aware that there was a longstanding tension between Ms Carley and this co-worker. There had been a mediation but the relationship had deteriorated and they were not communicating. 4 13. Ms Kis says that she and Ms Deacon met with Ms Carley, and that during the meeting Ms Carley referred to her co-worker as a “liar” and as a “Tasmanian devil”. Ms Kis says that she was taken aback by these comments, and she felt that Ms Carley’s tone was very negative and that her language was disrespectful. The co- worker was not in the room, but Ms Kis still felt that the language was inappropriate. 14. She drafted a letter of direction to Ms Carley about the incident. To summarize it briefly, the letter says that as Charge Technician, Ms Carley is in a leadership role and that she has a responsibility to help ensure a safe, healthy, and respectful work environment for all staff. She also has an obligation to keep lines of communication open with her co-workers. Her comments during the meeting were contrary to these principles and to the employer’s Respectful Workplace Policy, and the letter directs her to review that policy and attend an individual education session. 15. It took nearly two months after the meeting to finalize this letter, says Ms Kis, because it was her first such letter as a manager and she wanted to get it right. She sought guidance from a representative in the employer’s Human Resources department and from Ms Deacon, both of whom were away at various times. When she finally met with Ms Carley and her union representative to give her the letter on July 18, 2017, they asked that someone else (not the person named in the letter) provide the individual education session. That change was made and the revised letter was given to Ms Carley on August 15, 2017. 16. Ms Deacon (whose full title is Director of Professional Practice for Allied Health and Central Services) joined the employer in March 2014 as the Director of Professional Practice. Later that year she was given responsibility for Central Services. She was aware that there was friction in the workplace between Ms Carley and her co-worker, and Ms Deacon’s evidence about the May 19, 2017 meeting was not materially different from the evidence of Ms Kis. 17. Ms Carley says that she asked to meet with Ms Kis and Ms Deacon because she wanted to tell them that there had been a history of some issues between herself and a co-worker in the lab. She says that the meeting may have lasted an hour or more, and that at some point she said that her co-worker lies and that she can be a “Tasmanian devil” sometimes. The meeting went well, and they talked and laughed. She had no idea at the time that anything she had said was inappropriate. 18. When she received the July 18, 2017 letter she was devastated, Ms Carley says, because after the May 19, 2017 meeting she did not think she had any reason to be concerned about anything that she had said. She now wishes that she had not said those things and agrees that she could have used more professional words. 5 19. Ms Kis and Ms Deacon both concede that they did not tell Ms Carley during the May 19, 2017 meeting that her use of the words “liar” and “Tasmanian devil” in reference to her co-worker was inappropriate, nor did they do so immediately after the meeting or at any other time until Ms Carley was given the July 18, 2017 letter. Parties’ Submissions 20. The employer’s Respectful Workplace policy says that name calling or persistent criticism of a co-worker is not tolerated, and Ms Carley’s use of the words “liar” and “Tasmanian devil” when referring to her co-worker was inappropriate and inconsistent with a healthy workplace, asserts the employer. Even if the meeting was confidential and the co-worker was not present, it was not necessary for Ms Carley to use those words and she could have raised her concerns. 21. Ms Carley initiated the meeting to communicate her concerns about her co- worker, submits the union. It was a closed-door meeting about a tense workplace situation that Ms Kis and Ms Deacon were already aware of. The words in question were not directed at anyone who was present, and in any event the language is not severe, even if Ms Carley could have chosen a better way of expressing herself. The meeting did not cause any harm to the co-worker or anyone else, the union submits. Moreover, the Respectful Workplace policy says that it is important to respond to incidents in a fair and timely way, and the employer did not express any concerns about Ms Carley’s language during or immediately after the meeting. In fact, the employer did not bring its concerns to Ms Carley’s attention until nearly 2 months later. The union submits that this was neither fair nor timely. Analysis 22. The purpose of the employer’s Respectful Workplace policy is to foster a work environment characterized by dignity and respect through the prevention and resolution of conflicts involving harassment. The policy sets out a robust series of processes for reporting and managing inappropriate workplace behaviour. 23. It is generally accepted that incidents of workplace harassment should be dealt with expeditiously, and there are many references in the policy to the importance of a timely response. An employer also has an obligation to act expeditiously when it imposes discipline. 24. It took nearly 2 months for the employer to bring its concerns about Ms Carley’s comments to her attention. This was not a timely response to the incident. If Ms Kis or Ms Deacon had concerns about Ms Carley’s choice of words, they could 6 easily have raised this during the meeting or soon thereafter. The matter was not serious, it did not require any further investigation, and it could have been addressed on the spot or after a short consultation with colleagues. 25. Moreover, the May 19, 2017 meeting took place at Ms Carley’s request. She wanted to tell her supervisor and director about the state of her workplace relationship with her co-worker. Over the course of a lengthy meeting, Ms Carley used some harsh words to describe her co-worker, but from her perspective, the meeting went well, and she had no idea at the time that anything she had said was inappropriate. The co-worker was not present, and there is no evidence that anyone ever told her what Ms Carley had said. As a result, I cannot see how the situation could have caused any harm or upset to the co-worker. 26. Rather, Ms Carley was taking the initiative of bringing her concerns about her co-worker to the attention of her superiors, which was a perfectly reasonable thing to do. It was also reasonable for Ms Carley to think that she would be able to do so in confidence and that her words would not be repeated to the co-worker. While Ms Carley could have chosen more polite words to use, the words themselves were not, in the greater scheme of things, overly offensive. In a confidential meeting with management where an employee is expressing concerns about a co-worker, some latitude must be given. As a result, for all of these reasons, the incident did not warrant a disciplinary response. The Poster Incident Evidence 27. Robert McDonnell is the Director of Patient Care Services with the Secure Treatment Unit (STU) at the Centre. He says that he received a report that corrections staff had searched the STU and found long coloured pencils in a resident’s room. Long pencils are contraband because they can be used as a weapon, and there was a high-profile incident not long ago when a nurse was stabbed with a pen. Corrections staff thought that the pencils had been brought in by Ms Carley so that the resident could make a poster for a work-related event, and he relayed this to her supervisor. 28. Staff are not allowed to give things to residents because this can create therapeutic boundary issues: a gift can be seen as evidence of a personal rather than a therapeutic relationship, and this can change the balance of power between the staff and the resident. Ms Carley has power over residents because she draws their blood, and there could be a perception that by asking a resident to do something for her, such as draw a poster, Ms Carley is attempting to profit from the relationship. This raises 7 concerns about whether Ms Carley could be in a conflict of interest with the resident. A gift can also draw attention to the recipient, says Mr. McDonnell, and other residents can start bullying them or change their own behaviour to try and receive similar gifts. It is not a positive thing and it can be a source of friction. 29. There is a process that can be used if staff want to give items to residents, Mr. McDonnell says. It is characterized as a donation and given to a group of residents. There is a request form that he reviews and decides if the donation is appropriate. Books, magazines, snacks, and other items have been donated in the past, and it would have been appropriate to use this process with the long coloured pencils, although they would have had to be cut to a smaller length to meet safety standards. 30. Asking the resident to make a poster for a work-related event raised other concerns, namely issues around Ms Carley’s appropriate therapeutic role. As a venipuncture technician, she draws blood from residents, and this should be the full extent of her interactions with them. She would not be aware of the resident’s diagnosis or his treatment goals, and the leisure activities that are appropriate for residents are discussed by the treatment team, which Ms Carley would not be part of. 31. Ms Deacon says that Mr. McDonnell told her that corrections staff had found long pencils the resident’s room, and that they believed that Ms Carley was responsible. She decided to investigate further to find out how this had happened and how it could have been prevented. She interviewed staff, including Pamela Roberts- Carr, a Registered Nurse, and Cindy Nippard, the Manager of the STU. The investigation concluded that Ms Carley had asked the resident to draw a poster for a work-related event (a birthday) and that she brought the long pencils to the STU to give to him. Ms Roberts had cautioned Ms Carley that the long pencils were dangerous and needed to be taken to the maintenance department and cut down, but that this had not happened and the pencils were given to the resident. 32. In addition to the serious safety risk of bringing long pencils into the STU, Ms Deacon says that she was also concerned about the issues identified by Mr. McDonnell, namely around the appropriate scope of Ms Carley’s interactions with the resident, and about preferential treatment that could lead to a conflict of interest. Ms Deacon was also very concerned that Ms Carley had not spoken to Ms Kis (her manager) or herself about her plans for the poster or the long pencils, and that she had disregarded the advice of Ms Roberts-Carr. In other words, says Ms Deacon, Ms Carley had not followed the proper process. 8 33. Ms Deacon says that she interviewed Ms Carley on November 21, 2017. Ms Carley did not seem to appreciate the seriousness of the situation during the interview, which caused Ms Deacon additional concern. As a result, she prepared the November 29, 2017 letter of warning. 34. Ms Roberts-Carr, who testified on behalf of the employer, has worked at the Centre as a Registered Nurse for 11 years, and she has been in her current position doing programs with the residents for 5 years. She was at work in the STU when Ms Carley arrived and asked her a question about long coloured pencils. The nursing team lead had gone for lunch and she was the only RN there at the time. They were at a care station where there is a hatch and a window into the residents’ area, and Ms Carley asked her if she could give them to a certain resident, and Ms Roberts-Carr replied that he could not have long pencils and that they would have to be cut in half. 35. The resident was nearby and could hear the conversation through the hatch and the window. He interjected, saying that the pencils did not need to be cut, that he was allowed to have them, and that he already had some long pencils. Ms Roberts- Carr told the resident that he should not have them, and he replied that there have been searches and that they had not been taken away. The exchange continued, with the resident insisting that he was allowed to have long pencils. 36. Soon after, the Corrections Officer “In Charge” or “CO IC” came along. Ms Roberts-Carr said “here comes the man to ask, let’s ask him” or words to that effect, and either she or Ms Carley asked the CO IC if the resident could have the long pencils. The CO IC said “sure, he can have them” or words to that effect. Ms Roberts- Carr was upset at this, so she put her hands up in an “I’m done” gesture and moved away. It was her understanding that long pencils must be cut in half for safety reasons because they could be used as a weapon. She removed herself from the conversation between the Ms Carley and the CO IC because she did not want to be involved. 37. With respect to the resident’s comments about already having long pencils, Ms Roberts-Carr says that she believed that this was true, although she had probably not seen them herself but had heard that he had them from other staff. If residents have long pencils they should be removed, but this has not happened 100% of the time. Other residents have had long pencils in the past, she says, and she is aware of staff, including herself, receiving drawings from residents. She later told her team lead that the resident had been given long pencils and the team lead said nothing. 38. Ms Carley says that she likes to play an active role in encouraging positive morale among the staff at the Centre, and that she is on several workplace committees that organize social events. The birthday of one of her good friends, a housekeeper at 9 the Centre, was coming up. She had heard that one of the residents was an artist, and she asked the nursing staff and the recreational staff about the resident doing a poster, so she spoke to the resident and he agreed. A few days later, she asked the resident how the poster was coming along. He asked her if she could get him some better coloured pencils and she told him she would look into it. 39. She bought 6 or 8 markers and 6 or 8 coloured pencils, says Ms Carley, and brought them to the STU. Ms Roberts-Carr was there, and they agreed that the metal clips or caps on the markers had to be removed. Ms Roberts-Carr also told her that the pencils crayons would have to be cut, and as this conversation was happening, the CO IC walked by. Ms Roberts-Carr said “here is the man to ask”, so Ms Carley spoke to him, and he agreed that the metal parts would have to be removed from the markers. But when she asked if the long pencils had to be cut in half, the CO IC replied that they did not. She went to maintenance, had the metal parts removed, and gave the markers and long coloured pencils to the resident. Ms Roberts-Carr told the resident that the items were not his, that they needed to be logged in and out, and that they needed to be returned. 40. Ms Carley says that she checked in with the resident the last day before the weekend of the party. The poster was not finished, and one of the nursing staff said that she would bring it to the party, which she did. 41. On November 21, 2017, says Ms Carley, she was called to a meeting with Ms Deacon and other managers. She was asked some questions about the poster and the long coloured pencils, and at the end of the meeting she was told that it was a fact- finding and that she would hear back from them later. A few hours later she was called back, told that she was suspended, and asked to gather her belongings and leave the building. A few days later she was called back to work and was given the November 29, 2017 letter. 42. Ms Carley agrees that when she talked to Ms Roberts-Carr about the long pencils, she was advised to get them cut in half, and she had no problem with that. However, when the CO IC walked in and Ms Roberts-Carr said that he was the person to ask, she trusted that the CO IC would give her the right answer. She did not seek instructions or guidance from Ms Kis or Ms Deacon, but if asking the resident to make the poster was a bad idea, the nursing staff would have told her, because they were aware of it. Ms Carley says that she will never do something like this again and that she is sorry for the people who became involved. 10 Parties’ Submissions 43. The employer submits that Ms Carley failed to seek clarification and approval from ROHCG staff when she asked the resident to make a poster for a work-related event and when she brought long coloured pencils into the STU so that he could complete the work. The long pencils were a safety risk, and Ms Carley showed a disregard for workplace safety and the employer`s safety procedures. She also acted outside of the bounds of her professional role and breached several policies, argues the employer. 44. Ms Carley should have consulted her supervisor about her plans and followed her employer’s management structure, the employer submits. Instead, she sought and accepted advice about the use of the long pencils from corrections staff, to whom she does not report. Ms Carley acted outside of the bounds of her professional role, submits the employer. Commissioning artwork from residents is outside of her scope of practice and she is neither trained nor qualified to engage in this type of interaction with residents. Ms Carley also breached several policies, including the Items Brought In For Resident Use policy, and the Conflict of Interest policy, argues the employer. 45. The union submits that it is an exaggeration that Ms Carley commissioned art from the resident – she simply asked him if he would be willing to make a poster for a staff birthday party. There is evidence from Ms Roberts-Carr that this had been done before and that other staff have received drawings from residents. Ms Carley discussed the project with other staff, including nursing staff, and none of them raised concerns that her plans created a conflict of interest or might put the resident in a vulnerable position. This was not an effort to exploit a resident but a completely above-board plan to foster a positive workplace. 46. Similarly, argues the union, the employer’s submission that Ms Carley stepped outside of her professional role is overblown. She was not attempting to provide some form of treatment for the resident, she just asked him if he would draw a poster for a staff event, something that she understood had been done before. Ms Carley was active in organizing and promoting social events for employees, and her work on these committees was well known and accepted by the employer. 47. With respect to the safety concerns, Ms Carley sought the advice of Ms Roberts-Carr when she brought the long pencils and markers into the STU. Although Ms Roberts-Carr initially said that the long pencils would have to be cut in half, when the CO IC came by, she said “here comes the man to ask, let’s ask him” or words to that effect, and the CO IC said that the resident could have the long pencils. There was no basis for Ms Carley to question the advice of the CO IC on a matter of safety 11 and security, submits the union, and it would be unreasonable for the employer to discipline Ms Carley for following his advice on a matter of safety in a facility that is owned and operated by the MCSCS. 48. Ms Roberts-Carr also testified that she thought that the resident already had long pencils. Long pencils have not been removed from residents 100% of the time, and other residents have had long pencils in the past. When Ms Roberts-Carr told her team lead that the resident had been given long pencils, the team lead said nothing. All of this strongly suggests that there are serious problems with the employer’s position that residents in the STU are not allowed to have long pencils Analysis 49. Long pencils pose a safety risk in the STU because they can be used as a weapon. The union does not dispute that Ms Carley brought long pencils to the STU and gave them to a resident. Later, when the STU was searched, the long pencils were identified as contraband and confiscated. The union does not dispute that the pencils that Ms Carley had given to the resident were among those that were removed from the resident’s room. 50. When Ms Carley first asked the resident to prepare the poster, she did this on her own initiative. It was for a work-related event that would benefit employee morale, namely a staff birthday, and I have no doubt that Ms Carley’s plans were well-intentioned. However, because it was her project, Ms Carley was responsible for ensuring that the poster was made safely and with minimal risk to staff and residents, and I find that this did not happen. As a result, I find that her conduct warrants discipline. 51. As to the appropriate level of discipline, there are a number of important considerations. First, it is reasonable to expect the employer to demonstrate that it has clearly communicated and consistently enforced the rule that long pencils are contraband and that residents are not allowed to have them under any circumstances. I find that this has not been the case, because the evidence suggests that the resident already had some long pencils, that long pencils have not always been confiscated during searches, and that other residents have been allowed to keep long pencils. 52. I also find that while Ms Carley initiated the project and played a role in the events that led to the long pencils being given to the resident, she was not solely responsible for the safety risk. Ms Roberts-Carr and the CO IC gave Ms Carley conflicting advice about whether the long pencils should be cut in half. Although Ms Roberts-Carr and Ms Carley both deferred to the CO IC, this was Ms Carley’s 12 project, and she ought to have taken additional steps to confirm the correct procedure. For these reasons, I find that a written warning, which is a very modest disciplinary response, is appropriate. 53. With respect to the employer’s concerns about the conflict of interest and Ms Carley acting outside of her professional duties, I find that a disciplinary response is not warranted. The poster was not for Ms Carley’s personal use, it was for a work- related event that she was organizing. She purchased the markers and long pencils so that the resident could complete the poster, not to give them as a gift; and Ms Roberts-Carr told him that the items were not his, that they needed to be logged in and out, and that they needed to be returned. As a result, I am unable to conclude that they were in fact a gift to the resident. For all of these reasons, the connection to the Items Brought In For Resident Use policy, and the Conflict of Interest policy is tenuous at best. 54. The evidence also suggests that other staff have received drawings from residents and that it was no secret that a number of staff were aware that the resident was making a poster for the upcoming event. The evidence further suggests that the employer became aware of this during the course of its investigation and that it did not take this into consideration when it assessed Ms Carley’s role in the incident. 55. In my view, it would have been more appropriate for the employer to address these concerns through non-disciplinary and more broadly applied measures such as staff training or coaching. However, as stated above, the safety risk caused by Ms Carley, by itself, warrants discipline. For all of these reasons, I find that in light of all of the relevant considerations, the November 29, 2017 letter of warning was an appropriate response. As a result, the second grievance is dismissed. Disposition 56. I have carefully reviewed the evidence and considered the parties’ submissions, and for all of the reasons set out above, I find that Ms Carley’s conduct during the May 19, 2017 meeting with her manager and director does not warrant discipline. The employer did not have cause to issue the letter of direction to Ms Carley over this incident. As a result, the first grievance is upheld. 13 57. With respect to the second grievance, I have carefully considered Ms Carley’s role in this incident, and I find that Ms Carley is partly responsible for the safety risk that was created when she brought long pencils into the STU and gave them to a resident. This by itself warrants discipline, and I find that in light of all of the relevant considerations, the November 29, 2017 letter of warning was an appropriate response. As a result, the second grievance is dismissed. Signed at Ottawa, Ontario on August 30, 2018 Andrew Tremayne