HomeMy WebLinkAboutBarnett 17-06-29In the Matter of an Arbitration
Between:
Waypoint Centre for Mental Health Care
(The "Employer")
-and-
Ontario Public Service Employees Union, Local 329
(The "Union")
Re: Grievances of Eric Barnett
Arbitrator: Brian Sheehan
Appearances:
For The Employer:
For The Union:
Craig Lawrence
Tim Mulhall
Hearing conducted in Barrie on July 14, 2015
July 5 and August 15,16, 2016
January 11 and June 2,2017
Coir
44444
This Award concerns two grievances filed by Eric Barnett (the grievor) regarding
an allegation of patient abuse arising from an incident that occurred on August 10,
2014.
The Factual Background
The grievor is employed as a Registered Practical Nurse with the Employer. His
start date of employment with the Employer was in September 2000.
On August 10, 2014, the grievor was physically attacked by a patient (G.B.).
Responding to the attack, the grievor and other employees sought to restrain patient
G.B. Shortly thereafter, patient G.B. filed a complaint alleging that the grievor used his
elbow to strike him while he was on the ground being restrained.
After investigating the complaint of patient G.B., the Employer, on October 15,
2014, issued a three-day suspension to the grievor claiming that he "did in fact
physically attack (strike) G.B. during the course of your altercation with him" and the
Employer viewed the purported attack as constituting patient abuse.
On November 6,2014, the grievor filed a grievance (the discipline grievance)
asserting that the three-day suspension was without cause and requesting, amongst
other things, that the letter of suspension be removed from the grievor's file, and that he
be reimbursed for all lost wages.
Subsequently on May 11, 2015, the grievor filed a grievance (the health and
safety grievance) asserting that the Employer violated the collective agreement and the
Occupational Health and Safety Act by failing to take all reasonable precautions to
protect him from the assaults he had incurred from patient G.B.
The disciplinary, and health and safety grievances were referred to arbitration to
be heard together. There have been six hearing dates so far, and it is anticipated that
several more hearing days will be needed to conclude the adjudication.
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With the passage of time since the commencement of the hearing, the three-day
suspension is no longer part of the grievor's disciplinary record, pursuant to the
operation of Article 14.02 (the "sunset" provision) of the collective agreement.
While the grievance was being adjudicated, a criminal proceeding took place with
respect to patient G.B.'s physical attack of the grievor on August 10, 2014. Patient G.B.
was ultimately found guilty of assault with respect to that physical attack.
Recommendation and Resolution
At the commencement of the June 2, 2017 hearing date, the parties were
advised that I strongly recommended that discussions take place with a view to
resolving the issues associated with the grievances as it was my view little labour
relations purposes would be served by the continuing litigation of the grievances. This
view, that it was not sensible from a labour relations purposes perspective to continue
with the litigation of the grievances, was based on the following considerations: (1) in
terms of its ongoing impact, the three-day suspension had become moot; as it was no
longer part of the grievor's disciplinary record; (2) the grievor had received an
acknowledgement, as a result of the criminal proceeding, that the attack by patient G.B.
upon him on August 10, 2014 constituted a criminal assault; (3) there was no clear end
in sight in terms of the ongoing litigation of the grievances and the cost incurred both
from a financial, and use of resources perspective, associated with several more
hearing days would be significant; and (4) the parties could potentially reach a
resolution that addressed the residual issues associated with the discipline grievance;
and at the same time, address certain concerns of the Union regarding the manner in
which the Employer conducts investigations of an allegation of patient abuse pertaining
to an employee.
In furtherance of the discussions that took place between the parties, the
following terms have been agreed to as a full and final resolution of the grievances:
1. The grievances are deemed resolved.
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2.The October 15, 2014, three-day suspension letter will be removed from the
grievor's employee file.
3.The Employer undertakes it will not rely on the October 15, 2014 three-day
suspension, or the alleged incident that gave rise to the suspension, in any
manner, whatsoever, with respect to the grievor's employment relationship
with the Employer. For greater clarity, but without limiting the breadth of the
undertaking, the Employer will not rely upon, or reference the suspension or
the alleged incident, in the context of any performance review of the grievor in
relation to any job competition involving the grievor.
4.The Employer will pay to the grievor the sum equal to three days' pay at his
regular wage rate, as at October 2014, less applicable deductions.
5.The Employer agrees any investigation of an allegation of patient abuse by an
employee which may potentially lead to a disciplinary sanction being imposed
on the employee will be conducted pursuant to, and in accordance with, the
requirements of the Formal Investigation process set out under the
Employer's Investigating Allegations of Patient/Client Abuse Policy. The
parties acknowledge that the use of a Formal Investigation in this case would
have been of assistance and ought to have been used.
6.The Employer acknowledges that consultation with the inter-disciplinary care
team is an important component of patient care and the Employer's policy
respecting Emergency Use of Restraints — Physical, Chemical, Mechanical,
and Seclusion, and confirms that it will continue to abide by the terms of its
policies and procedures, including those regarding safety plans and care
plans.
7.The Employer agrees that during the course of any investigatory meeting with
an employee pertaining to an allegation of patient abuse where the Employer
plans on questioning the employee with respect to the contents of a video
recording, the following process will be adopted: (1) after being apprised of
the general nature of the allegation(s), the video will be shown to the
employee and the union representative in attendance at the meeting; (2)
before being required to respond to any questioning by the Employer
regarding the contents of the video, the employee and his/her union
representative will be provided an opportunity to take a short caucus
(generally 15-30 minutes in length); (3) the caucus will be restricted to
discussions between the grievor and his/her union representative and no
other individual will be contacted during the course of the caucus; and (4)
upon the conclusion of the caucus, the meeting will reconvene. The parties
acknowledge that the foregoing process would have assisted in the present
case and ought to have been used.
8.The resolution of these grievances is expressly made with the recognition that
there has not been any admission of wrongdoing by any party; nor has there
been any finding of any wrongdoing by any party, including the grievor.
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9. Arbitrator Sheehan is seized with respect to any dispute regarding the
interpretation and implementation of the terms of resolution.
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It is understood and agreed by the parties that the foregoing terms are without
prejudice, save and except paragraphs 5, 6 and 7 (above) which may be relied upon by V e.
either party in the future.
In closing, this was a difficult case for a number of reasons, and I would like to thank Mr.
Lawrence and Mr. Mulhall for the professionalism they displayed throughout the course
of the proceeding.
This Award is issued in Mississauga this 29th day of June 2017.
Brian Sheehan
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