HomeMy WebLinkAboutElaiho 22-01-25
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CENTRAL WEST SPECIALIZED DEVELOPMENTAL SERVICES
(The “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
Local 249
(The “Union”)
AND in the matter of an individual grievance.
ARBITRATOR: William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER:
P. Pengelly, counsel
C. Lee, HR consultant
J. Tella, stu.-in-law
M. Rolston, CWSDS
D. Batson, CWSDS
T. Britton-Kennedy, CWSDS
D. Price, RSW
J. Currie, CWSDS
P. Meghnath, physiotherapist
FOR THE UNION: M. Singh, counsel
J. Letton, counsel
E. Elaiho, grievor
Hearings held in Oakville on March 11, 2020, and by videoconference on
October 21 and November 30, 2020, January 13, July 16, October 18 and
December 13, 2021.
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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AWARD
In its grievance dated December 18, 2017, the Union claims that Mr. E. Elaiho (the
“grievor”) was unjustly discharged. The Employer contends it had just cause to
dismiss the grievor as indicated in the December 15, 2017 letter of dismissal under
the signature of the grievor’s area manager, Ms. Dede Batson, as follows:
You have been on a paid suspension since September 22, 2017 while the police
conducted their own investigation. CWSDS was unable to commence our
internal processes and investigation until the completion of the police
investigation and we subsequently met with you on November 27, 2017. Our
investigation has now been completed and our findings were as follows:
1. The individual “AR” can be seen on camera throughout the morning, and
just prior to the outing with no visible markings on his inner thigh.
2. Multiple fresh bruises that appear to be caused by pinching, can be seen
on AR’s inner left thigh upon return from the outing.
3. You were the only employee that [sic] was alone with AR during the time
that the bruising could have occurred.
4. You were sitting on the right side of AR in the van, which would give you
the opportunity to reach over and pinch the inside of his left thigh.
5. We can observe your co-workers on camera having a discussion about
the fact that you were confronted about the bruising and admitted that
you “did some of it, but not all of it”. When questioned about this during
our investigation, you did not deny that this conversation had occurred
by stated that you “could not recall”.
Based on a balance of probabilities, we believe that you are responsible for the
bruises found on AR. This amounts to abuse of a client and violates several of
CWSDS [policies] including but not limited to: Abuse of Individuals, Code of
Ethics, Standard of Conduct, Rights of individuals Receiving Supports/Services
through CWSDS and Health and Safety Responsibilities. Based on all of the
above there has been an irreparable breach of trust and as such, we wish to
inform you that your employment with CWSDS is terminated for just cause
effective immediately.
The relevant provision of the collective agreement under which the grievance arises is
as follows:
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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12.01 The Union recognizes that the management of the Organization
and the direction of the working force are fixed exclusively in the
Organization and shall remain solely with the Organization.
Without restricting the generality of the foregoing, the Union
acknowledges that it is the exclusive function of the Employer to:
…
(b) Hire, discharge… and suspend or otherwise discipline
Employees for cause, provided that … a claim that an Employee
has been unduly discharged or disciplined may be the subject
of a grievance and dealt with in accordance with the Grievance
Procedure;
The parties submitted the following Agreed Statement of Facts:
1. Central West Specialized Developmental Services (hereinafter
“CWSDS” or the “Company”) and OPSEU, Local 249 (hereinafter the
“Union"; together the “Parties”) have agreed to stipulate to facts and
documents in relation to the disposition of certain aspects of the
dispute between the Parties concerning the termination of Edobor
“Eddy” Elaiho (the “Grievor”) employment effective December 15, 2017
(the “Termination Date”).
2. The facts stipulated below and the documents attached hereto are
deemed true subject to any submissions the Parties wish to make with
respect to relevance or weight.
3. Although the Parties have agreed to the facts set out below and the
documents attached hereto, they do not agree that all facts set out
below and documents attached hereto are rel evant to the issues in
dispute.
4. Notwithstanding the foregoing, the Parties are permitted to call viva
voce evidence to add, clarify or supplement any facts or documents.
The Grievance
5. CWSDS and the Union are party to a collective agreement with an
effectiv e date of April 1, 2018 (the “Collective Agreement”).
6. On December 18, 2017, the Union filed Grievance No. 2017 -0249-0025
(the “Grievance”) with CWSDS in relation to the termination of the
Grievor’s employment. (See Book of Documents at Tab 2).
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7. Specifically, the Grievance states as follows in respect of the issue in
dispute:
“I am grieving that the Employer is in violation of Article 3
or any other Article of the Collective Agreement or Legislation
that may pertain to this matter."
8. The Grievance seeks the following remedy “that I be reinstated into my
position and all money lost be reimbursed. I be made whole."
The Grievor
9. The Grievor commenced his employment with CWSDS on or about
January 30, 2017. As of the Termination Date, the Grievor had 10.5
months’ service with CWSDS and was 28 years old.
10. At CWSDS, individuals with extremely complex needs and high behaviour
challenges, including some with medical and aging needs, live in
residential houses and receive care and support in their daily living
activities.
11. CWSDS has policies and procedures in place to ensure the safety and
wellbeing of individuals and all employees are expected to uphold these
policies. Upon hire, CWSDS employees are required to review and sign
an acknowledgment of the expectations and policies, including the Code
of Ethics, Standards of Conduct, Abuse of Individuals, and Respectful
Intervention. These policies are attached hereto (see Book of Documents
Tabs 3 – 7).
12. At all relevant times during his employment, the Grievor was subject to
and aware of CWSDS’ policies and procedures. During the course of his
employment with CWSDS, the Grievor signed off on CWSDS’ Policies and
Procedures manual, confirming that he read and understood the same.
Copies of these signed acknowledgements dated January 30, 2017 are
attached hereto (see Book of Documents Tab 8).
13. As of the Termination Date, the Grievor was employed by CWSDS in the
full-time bargaining unit position of Residential Support Worker II in
House 6. A copy of the job description for Residential Support Worker
(RCII) is attached hereto (see Book of Documents Tab 10).
14. House 6 is one of CWSDS’ residential homes located at 53 Bond Street,
Oakville. House 6 is considered a behavioural home where individuals
require a higher degree of care and supervision by staff. At the time of
the Grievance, House 6 housed individuals who received 24-hour
supervision based on their individual care needs.
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15. Each individual who resides in House 6 has a Behaviour Support Plan
(“BSP”) which is developed by CWSDS’ clinical team which can include
physicians, behavioural therapists, clinicians and other medical
professionals, and includes information about target behaviours related
to the individual and the corresponding reaction that staff should
demonstrate. A copy of the BSP related to one individual identified by
the initials “A.R.” who resides in House 6 is attached hereto (see Book of
Documents Tab 21).
16. A.R. has been supported by CWSDS since on or about April 2014 and
has resided in House 6 since this time. Before coming to CWSDS, A.R.
resided at another organization. A.R. has both intellectual and physical
disabilities and relies heavily on CWSDS staff for daily living activities.
17. All employees who work in House 6 are required to complete a general
orientation of the house, including a review of policies and procedures
related to House 6 and the BSPs of each individual who resides therein.
In this regard, the Grievor completed his orientation of House 6 during
the week of February 3, 2017 (see Book of Documents Tab 11).
Incident Leading to Termination
18. On September 21, 2017, the Grievor was working in House 6 with four
(4) other employees: Deneka Price (“Price”), Kevin Muzangaza
(“Muzangaza”), Tania Guthrie (“Guthrie”) and Alicia Popali (“Popali”). A
copy of the shift report from September 21, 2017 is attached hereto (see
Book of Documents Tab 12).
19. At approximately 11:30 am, CWSDS staff prepared the individuals for an
outing to pick up supplies for the home. Before leaving for the outing,
Popali showered A.R. and changed him from pants to shorts. Price
provided assistance to Popali during this process. There were no marks
observed on A.R.’s legs at this time.
20. Two vehicles were used for this outing. The Grievor, Popali, Muzangaza
and three (3) of the individuals including A.R., rode in the first vehicle.
Muzangaza was the driver, Popali sat in the passenger seat, and the
Grievor sat in the middle seat beside A.R.. The two other individuals sat
in the back row behind the Grievor. Price and Guthrie rode in the second
van along with the other two individuals.
21. During the outing, they stopped at Walmart, TD Bank and IKEA. When
they arrived at IKEA, the vans were parked. Guthrie and Popali went
inside. The Grievor, Muzangaza and Price remained with the individuals.
While parked, Muzangaza exited the vehicle to speak with Price. During
this time, the Grievor remained alone in the vehicle with the three (3)
individuals.
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22. At approximately 1:30 pm, they returned to House 6 and A.R. stayed in
the kitchen and subsequently went to the washroom. Shortly thereafter,
Price went into the washroom and observed red marks on A.R.’s inner left
thigh. An incident report and body check form was completed by Popali
to document these markings (see Book of Documents Tabs 13 - 14).
23. At approximately 3:00 pm, Jackie Currie (“Currie”), Residential Services
Manager, arrived at House 6. Currie spoke to Price and Muzangaza, took
pictures of A.R.’s leg and notified senior manager, Dede Batson
(“Batson”), about the incident (see Book of Documents Tab 16 – 18).
24. On September 22, 2017, Price met with Currie in the morning and
discussed the incident (see Book of Documents Tab 19).
25. Batson subsequently contacted the Halton Police Department regarding
the suspicion of abuse of an individual in accordance with CWSDS’
statutory duties.
26. The Grievor was place on a paid suspension effective September 22, 2017
while the Halton Police conducted its investigation.
27. On or about November 23, 2017, the Halton Police advised CWSDS that
charges had been laid on the Grievor in relation the September 21, 2017
incident.
28. Once the Halton Police concluded their investigation, CWSDS resumed
its internal investigation into the September 21, 2017 incident. The
investigation was conducted by Rolston and Batson. (see Book of
Documents Tabs 21 – 22). CWSDS arranged individual meetings on
November 27, 2017 with Currie, Price, Muzangaza, Guthrie and the
Grievor in the course of its investigation.
29. On November 27, 2017, Rolston and Batson met with Currie regarding
the incident on September 21, 2017. During this meeting, Currie
confirmed she was advised of the markings on A.R.s’ legs and observed
them on September 21, 2017 when she attended House 6. Currie
described these marks as “bright red”, “recent – broken blood vessels – not
bruised yet”. A copy of Rolston’s notes from this meeting are attached
hereto (see Book of Documents Tab 23)
30. On November 27, 2017, Rolston and Batson met with Price and a union
representative (Kim McGuiness) regarding the incident on September 21,
2017. Price stated that Popali showered and changed A.R. before the
outing on September 21, 2017 and did not see any markings on A.R.’s
body at that time. Price confirmed that during the outing, the Grievor
was the only person left alone in the vehicle with A.R.. Price noted that
when they returned to House 6, she observed the bruising on A.R.’s leg
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and described that it was “purple, looked like a squeeze, disgusting bruise,
couldn’t be missed”. A copy of Rolston’s notes from this meeting are
attached hereto (see Book of Documents Tab 24).
31. On November 27, 2017, Rolston and Batson met with Muzangaza and a
union representative (Kim McGuiness) regarding the incident on
September 21, 2017. Muzangaza confirmed that the Grievor was the only
person left alone in the vehicle with A.R. during the outing. Muzangaza
noted that during the outing, A.R. was making his usual noises and the
Grievor kept saying “stop making those noises”. Muzangaza advised that
when they returned to House 6, Price called him over to look at markings
on A.R.’s leg and described them as “massive, horrific…big red bruise,
swollen, raised. Covered 4 inches of his leg” and indicated that he thought
it looked like pinching. A copy of Rolston’s notes from this meeting are
attached hereto (see Book of Documents Tab 25).
32. On November 27, 2017, Rolston and Batson met with Guthrie and a
union representative (Kim McGuiness) regarding the incident on
September 21, 2017. Guthrie confirmed that the Grievor was the only
person left alone in the vehicle with A.R. during the outing. Guthrie noted
that when they returned to House 6, Price called her over to the
washroom to look at markings on A.R.’s leg and described them as
“swollen, welt on the inner thigh, very red”. A copy of Rolston’s notes from
this meeting are attached hereto (see Book of Documents Tab 26).
33. On November 27, 2017, Rolston and Batson met with the Grievor and a
union representative (Terry Kirkelos) regarding the incident on
September 21, 2017. The Grievor confirmed that he was alone in the
vehicle with A.R. and the other individuals during the outing. The Grievor
could not describe the markings on A.R.’s leg in much detail and simply
said they were bruises. The Grievor reported not being aware of how A.R.
got the bruises. A copy of Rolston and Batson’s notes from this meeting
are attached hereto (see Book of Documents Tab 27 – 28).
34. On December 15, 2017, CWSDS arranged a meeting with the Grievor
related to its internal investigation. During this meeting, the Grievor was
advised that as a result of the investigation, CWSDS determined that on
a balance of probabilities he was responsible for the bruises found on AR
and that this amounted to abuse of a client. As such, the Grievor’s
employment was terminated effective immediately.
35. On December 15, 2017, the Grievor was issued a letter regarding his
termination for just cause for abuse of a client, breach of trust and a
violation of CWSDS’ policies. A copy of the termination letter is attached
hereto (see Book of Documents Tab 29).
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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Ms. Deneka Price was a Residential Support Worker (“RSW”) at material times
assigned to House 6. In the morning of September 21, 2017, she observed a fellow
RSW, Ms. Popali, bathing AR and noticed no unusual marking on his legs. During
the outing, AR wore shorts. When they arrived back at House 6, Ms. Price went to
the washroom to check her resident for that day, ML. AR was in the next stall. “I
saw the bruises and questioned him. He was rubbing that area. I asked what
happened and he said, ‘hurt’. I was shocked because it was a large marking, I never
saw marks like that before. I called in each staff member on-by-one and asked how
did this happen. Everyone was shocked and didn’t know. They hadn’t seen this
before. [The grievor] was the last one I spoke with. He said he didn’t know what
happened and was nonchalant. I said, I know you did it, he said ‘part of it’ and left.
I said pretty much like, stay away from AR.”
Ms. Price said that she had worked with ML previously. In the washroom he was
smiling and had never been aggressive with AR. In his interactions with staff, AR
vocalized by yelling and “pulls staff hard to where he wants to go.” When asked how
AR expresses pain, Ms. Price said, “Unless you ask him if he is okay, he won’t say
anything, his pain tolerance is very high.” When asked if AR engages in self-injury,
she said that “after showering he’ll dry hard behind his neck.” When Ms. Currie
arrived in the House, Ms. Price asked her to look at AR’s thigh; “It wasn’t sitting well
with me, it did not look like what AR would do to himself.”
The next day, September 22, 2017, she again spoke to Ms. Currie; “I wanted to give
her more details because it was still not sitting well with me. I told her [the grievor]
told me he did part of it [i.e., the bruising], I told her I questioned everyone else, they
were not sure how it happened.”
Ms. Price is familiar with AR’s BSP and noted he is “hands off, it could be medical and
for AR, you never put on physical restraints, you do verbal re-directions, he usually
follows them.” She said the physiotherapist who deals with AR does not provide
advice as to techniques for interaction with AR, including physical interaction, in that
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it is not part of a physiotherapist’s functions. Only verbal prompts are to be used
with AR.
In cross-examination, Ms. Price said AR’s behavioural challenges are “vocalization,
yelling and pulling you” where he wants to go. She did not know if any of these
behaviours were occurring during the outing on September 21, 2017. Ms. Price said
AR went for physiotherapy sessions two or three times a week. AR has a long history
of entwining his legs when sitting. All who worked with him were aware of this
behaviour. No specific techniques have been suggested by the physiotherapist for
dealing with this behaviour.
Ms. Price had observed the grievor and AR interacting. She said the grievor plays
“with residents and being friendly, it is how you build rapport.” Prior to the September
21, 2017 incident, there were no complaints concerning the grievor’s interactions with
residents. Ms. Price was certain she had called the grievor into the washroom on
their return to the House. She was certain the grievor had said that he “did part of
it” in reference to AR’s bruising. She did not mention the grievor’s remark when first
speaking with Ms. Currie that day but mentioned his remark the next day, September
22, 2017; “it wasn’t sitting well with me, not telling the whole conversation” with the
grievor on the previous day. She agreed the Incident Report indicates “unknown” in
regard to the “Possible Contributing Factors”.
Ms. Price said that outside of work, she and the grievor went on a “group outing one
time” and they all went to her house afterward. She agreed they had a relationship
that “fizzled out” about one week prior to September 21, 2017.
In re-examination, Ms. Price said the two vans had been facing each other and she
could not see into the one where the grievor and AR were sitting. Rough play with
residents is discouraged.
Ms. Jackie Currie is a casual shift supervisor and has known and worked with AR for
some seventeen years and has daily contact with him. She has been assigned to AR’s
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house with the current Employer since 1999. She setup the grievor’s orientation and
schedule when he was hired in January/February 2017. As his direct manager, she
had no issues with how he performed his work.
On September 21, 2017, Ms. Price approached her and said there was an Incident
Report for AR for “possible injury”. She reviewed the report and AR’s body chart, the
latter having been prepared by Ms. Popali. She then met with AR and noticed the
bruising on his left thigh. She had never seen this sort of injury on AR. She then
spoke with Mr. Muzangaza and inquired as to who was in the vans on the outing and
was informed that the grievor had been left alone with AR. Later, she asked for
written statements from Ms. Price and Mr. Muzangaza. Given the injury to AR, she
was of the belief there had occurred possible abuse and sent all the information she
had to Ms. Batson.
The next day, September 22, 2017, Ms. Price came to Ms. Currie’s office and informed
her that the events of the day before were “not sitting well with her, she was quite
upset and told me the further steps she had taken [the previous day].” She informed
Ms. Currie that when she noticed AR’s injury while in the bathroom she had called
the other staff members one-by-one into the bathroom. She told Ms. Currie that they
seemed quite shocked and had confronted the grievor, stating, “‘I know you did this
[and the grievor] was very calm’.” She told Ms. Currie that the grievor had said. “‘I
did it but not all’ and quietly walked away.” Ms. Currie then contacted Ms. Batson
who instructed her to notify the police “as per our policy when we suspect staff had
harmed a client”. After providing the police with her statement, she had no further
involvement in the matter.
Once the police had completed their investigation, the Employer commenced its
investigation and Ms. Currie was interviewed by Ms. Rolston and Ms. Batson. In her
statement, she had noted that staff are “not comfortable telling on each other.” In
her testimony, Ms. Currie said this was due to “possible retribution, bullying,
accusing someone of something whether it was true or not, retaliation from others.”
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Ms. Currie confirmed that all staff are familiar with the clients’ BSPs and all are
provided appropriate training so that all staff know how to deal with every client.
There was no report from staff on September 21, 2017of AR acting in a way that would
have caused his injuries, which is required of them if an injury occurs. She said that
based on her experiences with him, AR had never before injured himself in the fashion
she observed on September 21, 2017.
Ms. Currie said that staff are not trained by physiotherapists in physiotherapy
techniques and do not engage in physiotherapy with the clients. Staff are to give AR
verbal directions to have him uncross his legs or not to sit on his fingers. There was
no direction from physiotherapists to take a hands-on approach with AR.
In cross-examination, Ms. Currie’s evidence is that the grievor is more hands-on with
clients than other staff; “high fives, shakes hands.” Ms. Price was the first to inform
her of the incident. It was only the next morning, September 22nd, when Ms. Price
informed her of what the grievor had said to her on September 21st. She could not
recall if she was concerned that Ms. Price waited until the next day to tell her what
the grievor had told her, Ms. Price, the day before. “I don’t know her reasons for not
telling me on September twenty-first.” Ms. Currie said that it was after her discussion
with Mr. Muzangaza on September 21st that she suspected the grievor had injured AR
“because he said only [the grievor] had been alone with AR during that day”. She did
not initially think AR’s injuries resulted from abuse. When asked if it was Ms. Price’s
information that had turned the matter into suspected client abuse, Ms. Currie said,
“I believe it was all the facts and [Ms. Price’s] information caused the start of an
investigation of whether or not it was physical abuse.” She did not ask the grievor to
respond to the information she had received from Mr. Muzangaza and Ms. Price
because he had been suspended pending investigation. She agreed that directing AR
to stand up in order to uncross his legs would not be possible in a moving vehicle.
Suggestions to staff from physiotherapists about clients would sometimes, but not
always, be documented. There is no formal direction from physiotherapists for a
hands-on approach to have AR uncross his legs. “Any direction would be
communicated to the whole team [and] added to the client’s BSP.” She could not
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confirm if AR was on any medication that would cause him to bruise more easily. She
agreed AR is mostly non-verbal in his communications.
Ms. Dede Batson’s managerial duties include supervision of House 6. She has known
AR form some sixteen years, beginning as a RSW in another facility similar to that of
the Employer. She had AR transferred to the Employer some six years ago and she
has continued her relationship with him. In AR’s Individual Program, it indicates “No
Restraint”, which Ms. Batson said “… means you are not able to put hands on him.
He has a medical condition, brittle bones, which could cause injury to him.”
On September 21, 2017, Ms. Batson received a call from Ms. Currie who informed her
of an incident that day involving AR where he had unexplained bruising on his left
thigh. Ms. Batson’s evidence is that there is nothing in AR’s BSP that would explain
the injury. Ms. Currie took photographs of AR’s left thigh and forwarded them to Ms.
Batson along with the Incident Report completed by Ms. Popali. She also included
the “Body Check” diagram indicating where the bruising was located. Ms. Currie
forwarded to her what Ms. Price and Mr. Muzangaza had told her on September 22,
2017. Ms. Batson contacted the director of human resources, Ms. Michelle Rolston.
Since the incident involved suspected resident abuse based on the information they
had received, the Employer’s procedures required that the police be contacted. Once
the police began investigating the matter, the Employer suspended its own
investigation until the police had concluded their work, again, as per Employer
procedures. Because initial inquiries implicated the grievor, he was suspended with
pay pending the Employer’s completion of its investigation. Once informed that the
police had concluded their investigation and criminal charges were laid against the
grievor, the Employer resumed its own investigation.
Ms. Batson and Ms. Rolston conducted the investigation of the September 21, 2017
incident which included review of all documentation, staff statements, house logs and
videos. They held interviews with staff who participated in the September 21st outing,
and also with Ms. Currie.
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Ms. Batson said that based on all the information that had been gathered in their
investigation, the Employer concluded that the grievor had caused the bruising on
AR’s thigh on September 21, 2017, that it was an incident of resident abuse, and
determined to terminate the grievor’s employment. She said the outcome of the police
investigation did not affect the Employer’s decision. “Absolutely not. Their lens is
different from our lens. They use the Criminal Code, we have a different focus. We
didn’t know the outcome of the charges laid [against the grievor]. We moved forward
with our investigation.”
In cross-examination. Ms. Batson agreed that from time-to-time staff have to use
intrusive measures, for example restraint or confinement, to interrupt challenging
behaviours, which measures are in compliance with Employer policies. “They are
used to support an individual through a difficult or challenging [event].” Every
physical contact with a resident is documented. Responses to a resident’s behaviour
are governed by his or her BSP. “NO RESTRAINT” for AR, “means just that.” A
physiotherapist is not part of AR’s clinical team; “The BSP speaks to his behaviour
needs and a physiotherapist is not part of that. The physiotherapist does not impact
his behaviour.” Staff are expected to follow physiotherapy directions. Those
instructions and their carrying out are to be documented. Ms. Batson said, “It is not
something physiotherapists would say”, when asked if the instruction was to
physically uncross AR’s legs and, “in my experience no, there is no direction to
physically uncross AR’s legs.” Ms. Batson’s evidence is that the physiotherapist who
worked with AR was not interviewed as part of the Employer’s investigation.
In re-examination, Ms. Batson said there was nothing unusual about their
investigation of the events of September 21, 2017; “all we did is pretty well standard,
and we have a significant amount of experience conducting investigations.”
Ms. Michelle Rolston is the director of human resources and in that capacity is
involved in investigations of alleged client abuse. In those instances, the Employer is
obligated to follow legislative measures including notification to the police to conduct
an investigation. As per policy, at that juncture, the Employer suspends its initial
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efforts and only resumes its investigation once the police have completed their
inquiry. The employee or employees involved in the alleged incident are placed on
paid leave pending investigation, as was the grievor in the instant case. Once the
Employer was advised the police had concluded their investigation and that charges
had been laid against the grievor, the Employer resumed its investigation.
Ms. Rolston’s evidence is that as part of the investigation all relevant documentation
was reviewed. Interviews were then conducted with the employees involved in the
events of September 21st. Questions to be posed to interviewees in separate interviews
were based in the information that had been received. The grievor was the last
employee interviewed in part because the interview had to be arranged to occur off-
site. All bargaining unit members were interviewed by Ms. Batson and Ms. Rolston
in the presence of a Union representative.
Ms. Rolston’s evidence is that when the interviews were completed, she and Ms.
Batson compared all interviewee’s responses to the questions. She noted that the
interviewees, other than the grievor, who had participated in the September 21, 2017
outing were consistent in their description of the outing activities, the client and staff
locations in the two vans, and that the grievor had been the only staff member in the
van with AR for a period of time. They were also consistent in describing the bruising
on AR’s left thigh. In comparison, the grievor did not accurately recall the activities
during the outing. He could not recall if anyone else had been alone in the van with
AR, or, if he had left the vehicle. He was not able to recall other than that AR had
“‘bruises but can’t describe what it looked like’.” He was only able to state that he had
“a very brief [conversation]” in the washroom about AR’s bruises. When he was
referred to Ms. Price’s statement, that in response to her remarks he had said, “‘not
all of it’”, the grievor had said he did not recall that conversation with her.
Ms. Rolston testified that she was concerned about the inconsistency between the
grievor’s version of the events and those of the other interviewees and, also, with the
brevity of his information about events. What also stood out in her mind was that
while the pictures of AR’s left thigh showed significant bruising, the grievor had but
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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a vague recollection of the bruising. Ms. Rolston said that on review of all the
information they had before them, she and Ms. Batson recommended that the
grievor’s employment be terminated for suspected abuse of AR, that the grievor “could
no longer work for us.”
Ms. Rolston said that the police investigation had no impact on their
recommendation; “we rely on our own… We have fired people even though no criminal
charges have been laid.” The grievor’s discharge letter identifies the reasons for their
decision. The decision to discharge him was based on finding, on a balance of
probabilities, that the grievor was responsible for the bruising on AR’s left thigh on
September 21, 2017.
In cross-examination, Ms. Rolston confirmed she had not met the grievor until his
interview on November 27, 2017. When asked if she recalled the grievor mentioning
to her that on the advice of his lawyer, he could not speak with her on November 27,
2017, Ms. Rolston told him “The criminal charges have nothing to do with the
workplace and we have to rely on the information you provide.” She knew Ms. Price
from previous investigations. She determined Ms. Price’s information was credible
because “what she told us was consistent with the other witnesses.” Ms. Rolston said
the grievor was advised his interview on November 27, 2017 was confidential; “that’s
always told to people.” Ms. Rolston concluded the grievor had “pinched” AR in
reviewing the bruises on his left thigh. Ms. Rolston was not concerned that Ms. Price
had spoken with other staff on an individual basis on September 21, 2017 because
“she was advocating for [AR].” At that point, Ms. Rolston said there was no suspected
abuse.
In re-examination, Ms. Rolston said it is the Employer’s standard practice to advise
employees their interviews are confidential.
Mr. Prem Meghnath was the Employer’s physiotherapist at material times. He
assessed the residents in order to determine their physical functional levels and
developed programs for them to maintain their functional abilities. His assistant,
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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under his direction, would conduct exercises with the residents, for example walking
with them, but those exercises did not involve hands-on treatments. No one else was
permitted to have physical contact with AR. Mr. Meghnath would instruct the
caregiver who accompanied AR to encourage him to stand with both legs. He provided
no training to staff and did not direct them to take a hands-on approach with AR, but
told them to use verbal cues. In particular, he did not instruct staff to physically
engage with AR to uncross his legs. There is nothing in his physiotherapy assessment
that indicates for staff to use a hands-on approach with AR.
If Mr. Meghnath delegated physiotherapy to his assistant that would be recorded in
AR’s assessment. The assistant could not delegate that treatment to anyone else as
provided for in Regulations of the College of Physiotherapists. He has so delegated to
his assistant for other residents but not for AR, which delegations are recorded in
those residents’ files that are accessible by staff.
Mr. Meghnath has seen the Body Check report and photographs of AR’s injuries to
his left thigh which he identified as pressure marks. His evidence is that there is
noting in AR’s physiotherapy plan that would have caused the bruising.
In cross-examination, Mr. Meghnath indicated he is the only therapist to treat AR
since AR became a resident of the Employer in March, 2017. He started treating AR
onsite in or around 2018 rather than in Mr. Meghnath’s offices. His assistant was
not involved with AR. He said AR could have been reminded to uncross his legs every
few minutes when in that position and would frequently have to be directed to uncross
his legs. There was to be no hands-on approach with AR, rather, verbal cues were to
be used to get his attention. Staff were not permitted to tap AR’s knee in order to get
hm to uncross his legs. He recalled AR to cross his legs when he was sitting but he
was not concerned with that, but only with AR doing so while standing in that he had
a previous history of hip dislocation. He gave no direction about AR uncrossing his
legs when sitting. He denied having given instruction to the grievor to uncross AR’s
legs if a verbal cue did not have effect; “The instruction was to use verbal
instructions.” He disagreed that there could have been a verbal instruction given to
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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uncross AR’s legs. He did not direct staff to tap AR’s knee to get him to uncross his
legs. No one asked him to provide a written statement.
The grievor was employed as a RSW in November, 2016 and went through training
and orientation. He had a clean discipline record over his some 10 months of
employment. His manager, Ms. Currie, expressed no concerns during his 6-month
performance review. He got along with his co-workers in House 6, where he was
assigned for the most part. Staff had relationships outside of work when they
socialized on a few occasions. In particular, he and Ms. Price had a relationship
outside of work which ended prior to September 21, 2017. Their relationship at work
did not continue well; “We wouldn’t talk and when we did it felt like resentment from
her… We just kind of ignored each other.”
The grievor’s evidence was that he was assigned AR twice a week, sometimes three
times. He “took care of his needs” according to AR’s BSP. Some of his behaviours
required intervention and at times, he saw AR self-harm; “Hitting his head, throwing
stuff, using a towel after being in the bathroom and rubbing his body with it.” He
was aware of and familiar with AR’s BSP.
The grievor said that AR had a tendency to tightly entwine his legs. He took AR to
physiotherapy roughly twice a week and the assistant therapist said, “to uncross his
legs. It deteriorated his posture… so she said that in order to slow it down, uncross
his legs.” The grievor was not given direction on how to uncross AR’s legs. The grievor
acknowledged that AR’s BSP included no restraints, meaning no hands on, “just not
touch him at all… you can’t do anything physical with him.”
On September 21, 2017, the residents and staff rode in two vans for the outing. The
grievor sat beside AR in the middle row of seats. The grievor said that during the ride,
“AR would cross his legs. Sometimes he did uncross them [when verbally instructed
to] and sometimes I would throughout the whole ride.” The grievor would “spread
[AR’s] legs apart and uncross them for him [with] just a firm grip. He wasn’t fighting
to cross them. I did it numerous times during the ride.” The grievor was not
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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frustrated with AR and said that in retrospect, “I should have just let him, but I
wanted to help.” On their return to House 6, Ms. Price called the grievor into the
washroom and asked if he knew what had happened to AR. “I said no, I didn’t know.
That was the last I heard [about the matter].” He said that afterwards, “Ms. Batson
called me into her office, said the police were investigating [the incident] and
everything went downhill from there.”
In further regard to his conversation with Ms. Price in the washroom on September
21, 2017, the grievor said, “She called me into the washroom, pointed to AR’s bruises
and she said, “‘I know how they got there.’ I said no, I don’t know how they got there.”
He said he replied, “no” for reason that “I really didn’t. I didn’t think it came from me.
I did not know or recall how they got there.” He disagreed he had admitted to Ms.
Price that he had bruised AR.
The grievor was referred to the testimony of Mr. Meghnath in which he said he did
not instruct staff to uncross AR’s legs. The grievor said, “Other staff told me to
uncross his legs. I was told by the physiotherapist.”
The grievor said that he was suspended on September 22, 2017 pending police
investigation. On November 27, 2017 following that investigation (in which charges
were laid against him but later dismissed at trial) he met with Ms. Rolston and Ms.
Batson away from the work site. The grievor said, “I felt the meeting was very biased.
They came with a pre-conceived notion from what they heard from Ms. Price. I told
them I couldn’t talk about my case. It was very unfair. There was much more I
wanted to say but couldn’t.” When asked in that meeting if he was ever alone with
AR in the van, the grievor is reported to have said, “Can’t recall.” In his testimony,
the grievor said, “Yes, but for a brief moment, a minute or two, the only time I was
left alone with AR.” When asked “When and how did you become aware of the bruises
on AR”, the grievor is reported to have indicated Ms. Price had called him into the
washroom, asked if he knew how the bruises got on AR’s thigh and had said, “I don’t
know.” He told Ms. Batson and Ms. Rolston he could not describe the bruises and it
is noted that he “(can’t recall the colour).” In his testimony, he said, “To be honest, I
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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didn’t want to go into details because of my [court] case.” He agreed he had said he
could not recall the bruises. “Maybe I should have used better words but the court
case was proceeding, I didn’t really want to talk about the situation. I had been
advised by my lawyer not to talk, give information until the criminal proceeding was
completed.” He agreed he could recall events but chose not to say anything.” “Maybe
I should have given a different answer.”
The grievor’s evidence is that he was “quite disappointed” when he received his
termination of employment letter. “It was not what I expected, it was hurtful.” He
had expected the Employer to “have more patience, to wait until [the charges had
been resolved] and I could give a more detailed response.” The discharge has resulted
in significant personal consequences for the grievor. He is currently working in
another field. The grievor said that if his actions had caused AR’s bruises on his
thighs, “It was not my intention to inflict harm on AR. I’m not an aggressive person,
it’s not my behaviour… I’m very sorry this [whole] thing happened.”
In cross-examination, the grievor’s evidence is that he is aware of all the Employer’s
policies and procedures relevant to the case at hand, including the Code of Ethics,
Client Rights, Abuse of Individuals, Standards of Conduct and Respectful
Intervention. He noted that the definition of client abuse includes “any behaviour
likely to cause personal injury.” He agreed that under the Abuse of Individuals policy
there is zero tolerance for client abuse and that suspected abuse must be reported.
That policy, under “Suspected Abuse”, includes evidence of “Certain areas are highly
suspicious such as inner thighs.” He agreed that under the Standards of Conduct
policy use of excessive force is unacceptable conduct. He agreed that as a RSW it is
critical for him to follow policies and procedures and that the clients, who are
vulnerable, receive proper care.
The grievor had reviewed and understood AR’s BSP. He agreed it indicates “No
restraints” and that it calls for a “hands off” approach with AR. He agreed he met
with Mr. Meghnath with AR roughly twice a week. When it was put to him that Mr.
Meghnath’s evidence was he gave no direction to him for AR’s range of motion
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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exercises, the grievor said, “Yes, but he actually did give instructions as per exercise
and stretches with AR including to uncross his legs.” When it was pointed out Mr.
Meghnath had testified that he never instructed a hands-on approach with AR, the
grievor said, “He did state the need to keep his legs uncrossed but gave no directions
on how to do it. … He verbally instructed to make sure he keeps his legs uncrossed,
but he never said how to do it.” He said Mr. Meghnath’s instruction was “verbal, it
was not placed on [AR’s] BSP… something new less than a month prior to the
[September 21, 2017] incident, not something serious enough to put on the BSP.”
On the September 21, 2017 outing, the grievor said he sat beside AR the whole time
and AR was crossing his legs. When AR did not listen to him, the grievor uncrossed
his legs. In regard to the bruising on AR’s thigh, “I can only assume it was because I
uncrossed his legs multiple times.” He agreed that in the washroom on September
21, 2017, Ms. Price had spoken one-on-one with him. His recollection of their
conversation is that he did not say, in regard to AR’s bruising, “I did part of it” and
did not recall her having put to him that she knew he did it. His evidence is that Ms.
Price’s evidence is not true. He iterated that he had had a personal relationship with
Ms. Price.
In regard to the notes of Ms. Rolston and Ms. Batson of his meeting with them on
November 27, 2017, he said they were “not exactly what happened, they don’t do me
any favours.” He agreed that at that time, he had been charged by the police. “At the
beginning, I said I can’t speak about [the incident] but we had a conversation.” In
regard to his response about being asked about the bruising, i.e., “Can’t recall” and
the suggestion that his response is different from saying that his lawyer advised him
not to speak about the matter, “But they kept pushing. I should have ended the
interview.” As to his “not recall” responses to their questions, he said, “I could have
used better wording.”
The Employer submitted that the grievor was governed by a high standard of conduct
given that he was responsible for residents who are vulnerable and dependent upon
him for their daily care and activities. The grievor was aware of the Employer’s policies
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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and procedures to be followed in the performance of his duties, including those
regarding abuse of residents as that term is defined in those policies, and which
policies are in response to the public’s trust in him in the performance of his duties.
In the instant case, the grievor was aware that AR’s BSP identified him as a “no hands
on” resident. The grievor testified that is was a physiotherapist instruction or
direction that he was to physically uncross AR’s legs. However, there is nothing in
AR’s BSP that indicates this instruction and if it had been given, it would be indicated
in AR’s BSP and all RSWs would have been made aware of that instruction. Further,
Mr. Meghnath testified that he did not instruct the grievor or anyone else to physically
uncross AR’s legs. Also, Ms. Batson and Ms. Currie, who both had long experience
with AR, testified he was not a hands-on client and that his status had never changed.
In light of the evidence of Mr. Meghnath, Ms. Batson and Ms. Currie, the grievor’s
evidence is not credible.
The Employer submitted that the grievor, during its investigation, was given the
opportunity to provide information concerning the bruising on AR’s left thigh. Ms.
Rolston and Ms. Batson testified that in response to their queries, the grievor’s
answers were vague, lacking in detail, or, he had responded “I don’t recall.” Moreover,
in comparison with the responses of other House 6 RSWs, the grievor’s responses
were starkly different, particularly in regard to the bruising on AR’s left thigh and Ms.
Batson’s recollection of it. The grievor attributes his responses in his interview, at
least in part, to having been instructed by his lawyer for his criminal trial not to say
anything to the Employer about the events of September 21, 2017. Given his
admission in his testimony here, that he did physically uncross AR’s legs during the
van ride, he was neither forthright nor honest in responding to the questions put to
him in his interview and, in particular, his interview responses when compared to Ms.
Price’s version of their discussion on September 21, 2017.
The Employer submitted that it made the correct decision when it terminated the
grievor’s employment. He did physically abuse AR. The Employer has no confidence
that he will not engage in that sort of behaviour again and it cannot trust the grievor,
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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a short-term employee, to act properly towards its clients in accordance with its
policies and procedures in circumstances where there is not a lot of direct supervision
of RSWs.
If it is found, however, that the Employer did not have just cause to discharge the
grievor it is not tenable for him to be reinstated to his employment.
In support of its position on the merits of the grievance, the Employer submitted Re
St. Josephs at Fleming Long-Term Care Facility v Canadian Union of Public
Employees, Local 2280, 2015 CanLII 2811 (ON LA) (Stout); Re St. Joseph's Health
Care Centre and London & District Service Workers' Union, Local 220 (Ruyter), 2000
CarswellOnt 9052, [2000] O.L.A.A. No. 103, 59 C.L.A.S. (Kirkwood); Re Toronto (City)
and TCEU, Local 416 (Calitri), 2015 CarswellOnt 4987 [2015] O.L.A.A. No. 131, 123
C.L.A.S. 43, 252, L.A.C. (4th) 211 (Marcotte); Re City of Toronto and Canadian Union
of Public Employees, Local 79, 2016 CanLII 50783 (ON LA) (Goodfellow); Re Toronto
District School Board v. Canadian Union of Public Employees, Local 4400, 2009
CanLII 1363 (ON LA)(Luborsky); Re Cassellholme Home for the Aged for the District of
Nipissing and Canadian Union of Public Employees Local 146 (July 31, 2006)
unreported version (Slotnick); Re Fairview Nursing Home Co. and S.E.I.U. Local 204,
1995 CarswellOnt 6731, 39 C.L.A.S. (Brent); Re Kennedy Lodge Nursing Home v.
S.E.I.U. Local 204, Re 191 CarswellOnt 6445, [1991] O.L.A.A. No. 14, 18 L.A.C. (4th)
38, 21 C.L.A.S. 243 (Davis); Re Versa-Care Centre of Brantford v. C.L.A.C., 2005,
CarswellOnt 11047 [2005] O.L.A.A. No. 742, 84 C.L.A.S. 44 (Levinson), and,
Brown & Beatty, Canadian Labour Arbitration, 4th ed, para. 7:3312; 5th ed., paras.
7:31, 7:32.
The Union submitted there is no dispute that in the health care setting there is a
higher standard of care when dealing with vulnerable people. An employer,
however, must have clear, cogent and convincing evidence of abuse, and, must
establish that the level of discipline imposed on an employee is appropriate. In the
instant case, the question is not did the grievor abuse AR, rather, the question is
did the grievor’s actions constitute abuse. While not conceding that abuse
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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occurred, it must be borne in mind that where some form of abuse has occurred,
discharge is not the only disciplinary response.
The Union submitted that the grievor was not acting out of frustration nor were his
actions a momentary aberration. Rather, he misunderstood AR’s care needs, has
explained why he behaved as he did, and, has expressed his remorse for having
physically uncrossed AR’s legs in misapprending AR’s care needs. Perfection cannot
be the standard to which health care employees are held, and, in any event, the
grievor was not uncaring or abusive, or rough in his dealings with AR on September
21, 2017, rather, he misunderstood the instruction he had been given by the
physiotherapist and now recognizes he should not have physically uncrossed AR’s
legs.
As to the grievor’s conduct in his interview with Ms. Rolston and Ms. Batson, it
must be appreciated he was facing criminal charges at that time and had been
cautioned by his lawyer about speaking of the incident involving AR. This
circumstance affected his ability to provide the Employer with full answers and it is
only now that he is able to do so, including expressing his regrets about this mis-
guided physical intervention with AR on September 21, 2017. Moreover, he did not
know for certain in the interview that his actions would have caused the bruising
and did not think his actions had that result.
The Union submitted there is no contemporaneous evidence as to what happened in
the van and the investigative notes made by the management are hearsay comments
made by staff who did not testify. In regard to Ms. Price’s evidence, the Union noted
there is conflicting evidence concerning the extent of her relationship with the
grievor. For his part, the grievor continues to deny he mentioned ‘part of it” in
response to a query from Ms. Price about AR’s bruising. His evidence ought to be
preferred because once able to fully testify about the events of September 21, 2017,
he has been forthright about other matters and there is no reason for him to deny
his involvement. The opportunity this arbitration process presents for the grievor to
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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have a fair hearing is of significance in the circumstances at hand in contrast to his
following his lawyer’s advice in the Employer’s investigation in November, 2017.
In support of its position on the merits of the grievance the Union submitted Re
Tuxedo Villa Nursing Home and C.U.P.E., Loc. 2180, 1989 CarswellMan 562, 13
C.L.A.S. 50, 4 L.A.C. (4th) 366 (Sigurdson); Re Revera Retirement v. U.S.W., Local
8300, 2012 CarswellOnt 5523 [2012] L.V.I. 4001-1, [2012] O.L.A.A. No. 230, 111
C.L.A.S. 48, 220 L.A.C. (4th) 165 (Bendel), and, Re Riverside Health Care Facilities
Inc. v. C.U.P.E., Local 65, 2009 CarswellOnt 8679, 98 C.L.A.S. 138 (Surdykowski).
The issue to be determined in this award is whether or not the Employer had just
cause to discharge the grievor on December 15, 2017. I find the merits of the
grievance, on the evidence and submissions before me, require determination of
whether or not the grievor, on September 21, 2017, physically abused AR. If I find
he did not, the grievance will be upheld. If I find he did, it must be determined
whether or not the level of discipline imposed by the Employer, discharge, is
warranted in all of the circumstances. If I find it is not, it must be determined what
level of discipline is appropriate in all those same circumstances.
In Re St. Joseph’s at Fleming, supra, the union grieved the employer’s decision to
dismiss the grievor for conduct that was “… abusive, demonstrating a fundamental
lack of judgement and disregard for the physical and emotional well-being of the
resident” (para. 2). The union contended that when the videotape of the grievor’s
conduct is “… viewed in context, [her behaviour] is not abusive and does not provide
just cause to terminate her employment [but] that some form of discipline is
warranted” (para. 3). Arbitrator Stout found that the grievor’s conduct fell within
the definition of abuse and that her explanation for her actions was unsatisfactory
(para. 163). In determining whether or not the disciplinary response of discharge
was warranted in the circumstances, the arbitrator, at para. 164, cites Re Baptist
Housing Society (Grandview Towers) and Hospital Employees Union, Local 180,
(1982) 6 L.A.C. (3rd) 430 (Grayall) p. 437:
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… A much higher standard of conduct is expected from employees in the
healthcare field than in other occupational fields. In this industry arbitrators
are required to have regard not only to the interests of the grievor and of the
employer, but also must have regard to the public interest. Both employer and
employee are reposed with a public trust for which they are held accountable.
The public trust is onerous. In broad terms it is a charge of responsibility for
the physical and emotional comfort of a member of our society who is unable
to live independently. The institution and no less its employees, in addition to
regular duties assume a role which may best be described as similar to that of
a “surrogate” family. This is particularly so in a facility such as Grandview
which strives to be a “home” for elderly residents. Because of the public trust
reposed in him, when an employee enters the health care field he must do so
with considerable ability to understand human frailty and with a gargantuan
tolerance of aberrant and unpredictable behaviour that often attends the
infirm or elderly.
Arbitrator Stout acknowledged that the employer had a zero-tolerance policy where
an employer engaged in abusive conduct such that discharge resulted, but noted he
was not bound by it rather, “… there is nothing in the collective agreement between
the parties that restricts my jurisdiction to substitute such other penalty that I may
find to be just and reasonable in all the circumstances” (para. 167). In exercising
his jurisdiction, he noted the arbitral approach reflects that patient abuse is very
serious misconduct but that termination of employment “is not automatic in every
case of abuse” (para. 170), and, that the “Appropriate penalty can vary, depending
on the nature of the abuse and the context of the misconduct” (para. 171). In that
case, arbitrator Stout found the employer had just cause to discharge the grievor.
He found the grievor was a short-term employee (para. 177); he was not confident
the grievor would not engage in similar conduct in the future; that her explanation
for her conduct was unsatisfactory (paras. 186, 187), and, that the public trust and
vulnerability of the home residents (para. 190) had to be borne in mind in
consideration of the employer’s disciplinary decision.
Relevant for our purposes, the St. Joseph’s award indicates that a zero-tolerance
policy concerning patient or resident abuse is justified given the public trust
granted to health care workers, but that the existence of such a policy ought not
result in every case of patient abuse ending in dismissal. Rather, the nature of the
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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mis-conduct engaged in and the circumstances in which it occurred inform the
appropriateness of the penalty imposed. That approach is exhibited in the St.
Joseph’s Health Centre award.
In Re St. Joseph’s Health Centre, supra, the union grieved the employer’s decision to
discharge the grievor “… for patient abuse for using force and acting against a
resident’s wishes” (para. 1). The union argued the employer did not have just cause
to discharge the grievor and, alternatively, that it was excessive in all the
circumstances (para. 3). Relevant to our purposes, arbitrator Kirkwood found that
the grievor did abuse the resident in the above circumstance and in doing so, the
grievor “… did not follow the approach set out in the [resident’s] care plan” and had
acted contrary to employer polices and Resident’s Bill of Rights (para. 96). Similar
to the approach expressed by arbitrator Stout concerning consideration of the
appropriateness of an employer’s disciplinary response where resident abuse has
been established, the arbitrator noted, at para. 97: “A finding of abuse does not
automatically trigger discharge, rather the nature of the abuse has to be looked at
in the context of all the circumstances and measured against the high standards
required of the health care industry.”
Arbitrator Kirkwood found the grievor had not read the resident’s care plan, was not
properly aware of the resident’s behaviour in the situation of abuse and had
exercised “poor judgement in attempting to care for the resident by looking at the
exercise of her duties within the terms of her own time schedule… although the
nature of the grievor’s actions fell within the criteria for abuse and her actions were
serious, it was not a case of extreme abuse” (para. 98). Also, while the arbitrator
noted that a finding of abuse did not require intent, “the grievor’s good intentions do
have consideration. Her actions were not out of anger or malice towards the
resident and her actions were more in the nature of poor judgement” (para. 99).
(See Cassellhome, supra, at p. 13 where arbitrator Slotnick noted the absence of
malice, threats, or personal insults towards a resident and that the abuse was in
the form of yelling at the resident). While the grievor had a clean disciplinary record
over a long employment history, discipline was warranted “… as the hospital has a
Central West Specialized Developmental Services & Ontario Public Service Employees Union, Local 249 January 2022
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high duty of care and responsibility to the public to ensure those left in their care
are treated with respect and dignity” (para. 99). In upholding the discharge,
arbitrator Kirkwood found, at para. 101:
The grievor after all the days of hearing, did not understand the gravity of her
actions, or even the possibility that her actions may have been wrong. She did
not admit any wrongdoing and showed no remorse. She lied, and she
attempted to deflect any responsibility onto the hospital and its lack of
training. She had ignored all training.
The arbitrator deemed that reinstatement was not warranted, at para. 109:
… the most critical aspect that wipes out any possibility of reinstatement is
her failure to answer in a forthright manner and to testify honestly. In a
defensive position she would say anything that she believed would help to
exculpate her and relieve her from any responsibility. A witness does not have
to be sophisticated to answer the questions asked.
Arbitrator Kirkwood determined the employer properly had no faith in the grievor
that she would not act in similar fashion in the future. (See Re Toronto (City), supra,
at para. 150 where the notion of a high standard of conduct in the health field is an
onerous obligation on employers and employees; para. 152 where it is noted
discharge is not an automatic response to patient or resident abuse; Re City of
Toronto, supra, page 24, where re-instatement is an appropriate consideration where
there has been an incident of patient abuse. See also Re Versa-Care Centre, supra,
at para. 15 where arbitrator Levinson found the grievor’s refusal to acknowledge
“any culpability for her actions or to be contrite” militated against reinstatement and
cast doubt on her ability to regain the employer’s trust).
The St. Joseph’s Health Centre and Casselholme awards indicate that while there is
arbitral tolerance for instances of abuse that do not involve physical abuse, threats,
insults or malice, in those cases it is appropriate to consider whether or not the
employee will continue to engage in non-extreme forms of abuse. In both cases, the
arbitrators determine that the employer could not properly have confidence that the
employee would not continue in engaging in that form of abuse in the future. (See
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Riverside Health, supra, where poor judgement in physically contacting a resident
was viewed as insufficient support for a decision to discharge an employee where
two minor incidents of non-physical abuse were found also to have occurred).
Where there is an actual incident of physical abuse that is other than accidental
physical contact, the nature of the abuse draws considerable arbitral attention as in
the Fairview Nursing Home award.
In Re Fairview Nursing Home, supra, the union grieved the employer’s decision to
discharge the grievor for “abuse of a resident…” (para. 2). The grievor did not deny
that she caused “a red mark on [the resident’s] right thigh and the mark was in the
shape of a left hand with all five fingers clearly visible” (para. 6). The grievor
described her actions as either “a tap” or “a slap” or “a hit” and that she did it in
response “to a slap in the face which [the resident] had given her.” (para. 7). The
grievor acknowledged she knew what she did was wrong, expressed her regret and if
reinstated would “never hit a resident again” (para. 12). Arbitrator Brent found that
the grievor’s evidence of having been struck by the resident in the past was not
credible. The grievor had a clean disciplinary record. As to the grievor’s actions
towards the resident, the arbitrator states at para. 21:
… it was a significant slap. It may have been a reflexive action on the part of
the grievor, we can see no evidence of pre-meditation or any pattern of abuse,
but the very fact that a Health Care Aide working with such residents can be
made to react like that to a resident's usual behaviour is of concern… Given
the nature of the residents who are cared for in facilities like the [employer’s],
there can never be any guarantee that no other resident would never exhibit
behaviour at least as abusive as [the resident’s].
The arbitrator similarly found that while the grievor testified she would never hit a
resident again. “… there is no guarantee that, given circumstances similar to those
[of the date of the incident] she would not behave as she did that day” (para. 22).
The arbitrator dismissed the grievance noting the nature of the grievor’s
employment at para. 24:
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In most employment situations, it is indeed rare to even consider that a
discharge would be justified for a single incident of misbehaviour. In most
other employment situations, boards of arbitration are looking at a simple
employment relationship where only the interests of the employee and the
employer have to be considered. Where there is a public trust involved
regarding the care of dependent, vulnerable people, the relationship is not as
simple as the usual employer/employee one; the interests which flow from the
public trust must also be taken into account. In that context, it is more
difficult to regard even one incident of resident abuse as being something that
could be treated as an ordinary sort of infraction to which corrective discipline
should be applied.
As can be seen from the Fairview award, where there is actual physical abuse of a
resident, the matter of the public trust becomes significant for arbitral
determination purposes. Further, consideration is given to whether or not the
employee has exhibited a guarantee or certainty that this sort of behavior will not
occur in the future. In that regard, arbitrator Brent found the grievor’s version of
her own actions not to be credible. The motivation behind an act that involves
physical touching of a resident is dealt with in the Tuxedo Villa award.
In Re Tuxedo Villa, supra, the grievor was discharged for striking a resident on the
hand (para. 2), contrary to the employer’s standards of conduct and other policies
regarding the treatment of residents. Arbitrator Sigurdson found there was just
cause to discipline the grievor but that discharge was not an automatic response to
every incident of resident/patient abuse. It was found that discharge was an
excessive disciplinary response, at paras. 31 and 32:
31 I am not prepared to conclude, on the evidence, that the grievor did not
react spontaneously to the situation, with no intent to harm. … A
natural reaction to observing somebody pulling at a tablecloth, and
particularly someone who does not have the capacity to comprehend
fully on their own account, would be to physically intervene to get them
to let go … I am not satisfied that it was anything other than
spontaneous reaction without malicious intent.
32 In the circumstances, I believe dismissal was excessive. …The grievor
does not deny that the incident took place. She acknowledges that she
struck the resident and … that it was wrong to have done so.
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The arbitrator substituted a three-month suspension for the discharge.
As can be seen in the Tuxedo Villa award, where the act of physical abuse occurs as
a result of a spontaneous or natural human reaction to the conduct of a resident
and results in a minor sort of intervention that intends no malice or ill-will towards
a resident (but may have protected the resident, in that case from pulling a
tablecloth with eating items on it), the action of abuse is viewed as being moderated
by the circumstances of its occurrence. When coupled with the grievor’s
acknowledgement of the wrong associated with the abusive action, it was found that
discharge was an excessive disciplinary response. The circumstances of the
occurrence of physical abuse was also a significant consideration in the Revera
Retirement award.
In Re Rivera Retirement, supra, arbitrator Bindel found the grievors’ conduct met the
definition of abuse under the employer’s standards of conduct (para. 57). He
determined that discharge was excessive in all the circumstances and addressed
that matter at para. 104 as follows:
The conduct … met the employer's definition of resident abuse. However, … it
resulted, not from frustration or insensitivity by the grievors towards Ms. B,
but rather from their own confused assessments as to what was in the best
interests of Ms. B, as they believed that it was less acceptable to leave her in a
soiled state than to use some mild physical restraint and to ignore her
protests while they cleaned and changed her. The grievors' assessments
in this regard were shared, in part at least, by Ms. Rodriguez, who had
worked as a PSW. They were described by Ms. James, a fellow PSW
summoned to testify by the employer, as caring, good employees. All of this
persuades me that, with proper training, there is no reason why the grievors
could not resume their work as PSWs.
The arbitrator imposed 2-month unpaid suspensions.
The Revera and Tuxedo Villa awards seems to indicate, relevant to our purposes,
that where the nature of the abuse involves an incident that occurs from a weighing
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of alternatives in a response to a resident’s own actions, the motivation to protect
the best interests of the resident - as opposed to the interests of the employee -
weighs in favour of the employee in light of all the relevant circumstances.
In applying the above arbitral approaches to the case at hand, it is clear that
physical abuse of a vulnerable resident is a significant violation of the public trust
that has been extended to health care workers, as was the grievor at the time of the
September 21, 2017 incident. In assessing the incident of the physical abuse, the
context of its occurrence and the reasons for the employee’s actions are considered,
but such considerations are made bearing in mind that physical abuse of a resident
is essentially an intolerable offence that warrants discharge.
In the instant case, the grievor admitted that on September 21, 2017, he did
physically uncross AR’s legs while riding in the van and did so on multiple
occasions. By the time AR returned to House 6, there was obvious bruising
resulting from the grievor’s physical interventions. The grievor’s explanation for his
actions is that he was instructed by physiotherapy to uncross the grievor’s legs,
which he understood to include physical intervention. As to whether or not the
grievor’s explanation is credible, the matter of a witness’s credibility is addressed in
Brown and Beatty, supra, para. 3:5110 (4th ed.), citing Re Faryna v. Chorney, [1952]
2 D.L.R. 354 pp.356-7:
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 seems 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 she has
seen and heard, as well as other factors, combine to produce what is called
credibility… A witness by his manner may create 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….
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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 prepondence of the probabilities which a practical and
informed person would readily recognize in that place and in those conditions.
As can be seen from the above, the credibility of a witness’s version of events is not
a simplistic consideration. Rather, credibility is considered against the probabilities
and circumstances of the events and as against the versions offered by other
witnesses in a case of conflict of evidence. In that regard, a witness’s version may
be credible in part but not in other parts. Also, a witness’s evidence may be
consistent or inconsistent with the evidence of other witnesses, and, may also be
internally consistent or inconsistent when taken on its own.
The grievor’s explanation for uncrossing AR’s legs presents an inconsistency when
take on its own. In examination-in-chief he testified that the physiotherapist’s
assistant, i.e., “she”, instructed him to uncross AR’s legs. In cross-examination, he
testified it was the physiotherapist, i.e., Mr. Prem Meghnath, a male, who instructed
him to uncross AR’s legs. However, Mr. Meghnath testified that only he, as a
member of the College, could give that sort of instruction and not his assistant.
Further, Mr. Meghnath’s testimony is that it was him and not his assistant who
treated AR in his weekly appointments.
Secondly, the grievor’s version is not consistent with the evidence of the other
witnesses. Their evidence is that any instruction regarding a resident’s treatment is
to be entered into that resident’s plan in order to be communicated to all the RSWs
who interact with that resident. There is no evidence before me to establish that an
instruction had been given for RSWs to physically uncross AR’s legs. Rather, the
instruction regarding AR was “no restraints”, which was said by Ms. Price and Ms.
Currie to mean no hands on AR. Nonetheless, while being aware of AR’s BSP, the
grievor ignored that it called for no restraints, i.e., no hands on, and physically
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uncrossed his legs. Based on the foregoing, I find the grievor’s evidence that he was
instructed to physically uncross AR’s legs is not credible. I find that the grievor
failed to follow AR’s treatment plan by physically uncrossing his legs.
As to whether or not the grievor’s actions constitute physical abuse, the Employer’s
“Abuse of Individuals” policy defines abuse as follows:
Any action or behaviour that causes or is likely to cause physical injury or
psychological harm or both to a person with a developmental disability….
There are many specific forms of abuse. These are:
…
Physical Abuse, Physical Abuse is an act of assault, or a threat of an assault,
such as hitting, slapping and burning that cause actual physical injury or
fear of physical injury.
Against the above definition, I find the grievor did physically injure AR resulting in
the bruising on his left thigh. I find, therefore, that the grievor physically abused
AR on September 21, 2017. I find, therefore, the Employer had just cause to
discipline the grievor.
As to whether or not discharge is an appropriate response to his misconduct, the
grievor had less than one year seniority at the time of the September 21, 2017
incident, which amount of seniority he cannot rely on as an offsetting or mitigating
factor to the level of discipline imposed. Secondly, the grievor’s version of the
instruction given by the physiotherapist is not credible; there is no record, as
required of any physiotherapy instruction to uncross AR’s legs and AR’s case plan
specifically identifies there are to be no restraints, in the physical sense, of AR.
Also, the grievor’s testimony as to who gave him that instruction is inconsistent. In
examination-in-chief he identified a physiotherapy assistant who he said was a
female and in cross-examination he identified Mr. Meghnath as the one who gave
him the instruction. On that point. Mr. Meghnath’s evidence is that an assistant is
prohibited from giving instructions as to a resident’s physiotherapy regime.
Further, the grievor expressed remorse for his actions towards AR, but it was
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expressed as regret for having mis-apprehended the physiotherapy instruction, but
no such instruction was given.
Based on all the foregoing considerations I find that the level of discipline imposed
on the grievor is warranted in all the circumstances.
The grievance, therefore, is denied.
Dated at Toronto, this 25th day of January, 2022.
William A. Marcotte
Arbitrator