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HomeMy WebLinkAboutSchnarr 03-01-09 . - tÝ Ie c~ IN THE MATTER OF AN ARBITRATION BETWEEN ONGWANADA HOSPITAL (the UEmployer") . and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 433 (the "Union") AND IN THE MATTER OF A GRJEV ANCE OF MS JENNIFER SCHNARR - (MIY201627) (the "Grievor") BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE ElVIPLOYER: Mr. Terry Churchmuch, Representative And Others . , APPEARANCES ON BEHALF OF THE UNION: Mr. Boris Bohuslawsky, Agent And Others Hearings into this matter were held in Kingston, Ontario on November 25 and December 16, 2002. . G 'd lLS9'oN all!^~oo1q nasdo ~dvl:Gl vOOG '9 'Inr A -2- The grievor was dismissed for allegedly abusin~ "R", a mentally challenged c1ient who was under the care of the employer. The incident 'occurred on December 11, 2001 when the grievor dragged "R" by the ankle down a hallway. She grieves claiming she was unjustly terminated and seeks reinstatement with full redress. - The incident was witnessed by Ms Jennifer Barrie, a placement student, who reported the incident the following day. This prompted the holding of an investigation . which was held by an inquiry team consisting of Mr. Robert Bruce and Mr. Brent Herbison. Mr. Broce testified in these proceedings. He has been an employee since 1989 and holds a mid-management position. His classification is Co-ordinator Suppon Services. The team concluded there were grounds for discipline and recommended the following (ex. 12): POUCŒS&PROCEDURES SUBJECT: ALLEGED ABUSE OF CLIENTS BY ONGWANADA EMPLOYEES OR AN ONGWANADA HOME SHARE PROVIDER 8.0 RecommendatioJ1s from Inaulrv Team: . 8.1 Disc:ipliDary Action: 1. Immediately tenmnate 1:1 position; 2. written repIÚIland; 3. 2-week suspension without pay; 4. employment in another position as a CSW only. 8.2 Civil & CriIIlinal Action: N OIle - follow up with CAS (letter sent Dec. 19/01). 8.3 Management Action: 1. Re-take CPI training-. 2. mandatory re- education on Abuse Awareness. client rights. IDSP philosophy, Emergency Response. Non-Aggressive Crisis Interyention and Restraints Policies/related forms. . 8.4 Program Action:, 1. Ensure Home Provider is given suppons necessaty", 2. Supervisor to meet with J. SelmaII'to discuss specific incident/lack of Judgement, 8~5 Other Action: 1. Review with all students/staff CFSA standanis regarding reponing to CAS; 2. Planfor the behavioural issues that £ 'd lL89'oN all !^~JOJq naSdO ~dvl:ll vOOl '9 'Inr - 3 - will arise upon introduction of new staff; 3. Infonn CAS of Ongwanada recommendations/outcomes. 8.6 No Action; nla 9.0 Siqn Off: 'Rnn..~ R""I"'"A 17 n""","",h..... ?nn1 Inquiry Team Member Date ~.,...nT U....Jo.;<\:<"In n...... 17/n1 Inquiry Team Member Date Mr. Bruce testified that neither he nor Mr. Herbison had any background in human relations. He said they looked at the problem from the basis there had been an alleged abuse and they determined abuse had ocCUIIed and based on their layperson.s perspective determined the above recommendations were appropriate. Mr. Bruce went on to say. however, that he did not disagree with the ultimate decision that was ' .reached. Mr. Geoffrey Gifford is a Community Services SupervisorlHome Share. He wrote the letter oftemrination which reads (ex. 3): December 19. 2001 Dear Ms. Schnarr: An 1nqWry Te8II1.looked into the allegation that on Tuesday. December 11. 2001 you physically abused Client "R". This incident was fully witnessed and further, when confronted with the above infonnation, you achnitted to dragging the client by the ankle doWn the hall, over the threshold of the door and onto the deck. Please be wormed that the Inquiry Team found your actions in dealing with Client "R" were indeed inapprop:tiate and, in fact. constituted a serious violation oiPolicy 01.04-02 '.Alleged Abuse a/Clients by Ongwanada Employees or An Ongwallada Home Share Provider", The seriousness of the abuse cannot he o~rstated and even more disturbing is your 'sense that ~our actions were appropriate and should not be considered as 'abuse', Tiûs leads the Inquiry Team to t:he conclusion that it t . d lL89'ON all !A~JOlq nasdo ~dtl:Zl tOOZ '9 'I n r ~ - 4. ' . is unsafe for CJ1ent "R" to alloW' you to continue working with him. Consequently, in accordance with Polley 1+1 - Discipline, please be informed that your emp:oyment with Ongwanada, is terminated effective this day, Wednesday, December 19Cb, 2001. A cheque is enclosed to reflect your pay up to and including today, December 19, 2001. With respect to your inclusIon in the Hospitals of Ontario Pension Plan, you are asked to sign the attached document. A Record of Employment for Employment Insurance purposes is also enclosed. You are entitled. as a. melIÙ;¡er of the OPSEU bargaining unit, to appeal this decision through the grievance process as described in the collective agreement. If you have any questions concerning your wages and benefits, please contact Human Resources. Yours truly Geoffrey Gifford Community Services Supervisor , . Mr. Gifford t~stiñed the matter was considered by an eight member management . team which reviewed the recommendations of the Inquiry Team. It also considered the fact that the grievor could not see anything wrong in what she had done in pulling "R" by the axùde on two occasions, once down the hallway and once into the living room which is the one Ms Banie claims to have occurred when she was leaving. Mr. Gifford acknowledged the grievor's e:rnployment had been discipline free nevertheless management decided tennination to be appropriate. 'Mr. Gifford related some infonnation concerning "R" as follows. "Rn had been a. ward of the Children's Aid Society of Payokutono (the First Nations Band who initially cared for "R"). He later came to Kingston's Children's Aid Soci~ty and was placed in the care of the employer. At the time of the incident his chronological age was 10 whereas his mental age was 5.5 years. His height is 41 611 and he weighs approximately 80 lhs. 9 'd lL89'oN all !^~JOJq naSdO ~dvl:ll vOOl '9 ' nr -5- Mr. Gifford stated the reason uR" requires one-to-one support is due to his sa]!. injurious behaviour. He can be aggressive and destructive. He was always trying to IUIl away and is prone to emotional outbursts. He is diffic\Ùt to control at times. Mr. Gifford went on to say that a procedure was put in place which was intended to be used with lOR" when he became unmanageable. It is a four step procedure. That procedure is as follows: 1. Try to ignore it; 2. Step in - ask him to be quiet; 3. Step in - tell him you're going to help him; 4. Step in - if he continues in his outburst - and - depending on the nature of the outburst a) go behind him and wrap your arms around him and move him away from the object; b} ü he is pinching himself - tIy to get hold of his hand and hold it down by his side; c) Ü he is kicking - tIy to get behind him - tIy to get hold of him and try to hold him Steady. Mr. Gifford stated that employees lmow it is improper to drag clients by their aDkles through teaching in crisis intervention where employees are taught proper hold methods to use. Employees are also informed through Staff meetings. While proper holds are taught there is nothing in the training relating to being dragged by ankles. Employees, . are shown proper techDiques to be used and dragging by anldes wotùd not be included in this training. 9 'd lLS9'oN all!^~JOJq naSdO ~d9l:ll tOOl '9 '¡nr . - 6 -, Mr. Gifford testified that the management team decided that once abuse had been established it felt compelled to dismiss the gnevor's selVices. Both Ms Banie and the griever testified in these proceedings. Alter having carefully reviewed their evidence it appears to this arbitrator it would be more effective to relate their testimony in a narrative fashion. The griever has been an employee since August 7, 1997. She was first employed as a casual employee and moved to a part-time employee position sometime in September or OCtober 2001. She holds an honours degree in Biology from Dalhousie University and has received her Bachelor of Education degree from Queen's University in 2001. She also completed a course in Phazmacy at St. Lawrence College which enables her to be classified as a Residential Counsellor (RC 2) which allows her to. administer medicine to clients. Prior to taking the pharmacy course she had been classified as a Community Social Worker (CSW). Her previous employment smce aniving in Ontario from Bathurst, New Brunswick in 1991 had been in Belleville where she worked for a counselling service between the years of 1991 and 1995. From 1995' to 1997 she had been employed by Conununity Living in Sharbot Lake. Approximately one year afterbeing hired the grievorwas assigned to ,care for "R" on a one-to~one basis. She works approximately 79 hours over a two week period and between 80% and 90% of her time at work is spent with uR". On December 11, 2001 the grievor was working with "R" at one of the community homes owned by the employer. uRn had been expelled from school due to three L 'd lL89'ON 811 !^~JOJq n8SdO ~d9l:ll tOOl '9 ' nr -7- aggressive outbursts and the grievor's role during his expulsion period was to have fiR" continue with his schooling work. The morning had passed uneventfully. "R" had proceeded with his school work and had eaten his lunch. Everything appeared to be normal. Shortly before 1:00 p.m. URn and the grievor resumed his schooling and again nothing out of the ordinary was happening. The grievor's narrative will continue below. . At approximately 1:00 p.m. Ms Jennifer Banie, a placement Student, arrived. As a placement student she had been assigned to visit aiR" and the grievor to perform an integrity check. This involved completing a ~hecklist to signify that the behavioural support program intended to be carried out was in fact being complied with. The following narrative is Ms Banie's story. Ms Bania testified when she arrived. UR" was doing school work and was complying with his assigned task. A short time later "R" was assigned a new task which Ms Banie believed to be a math assignment. U R" refused to comply in performing this task and left his work area and immediately commenced self-injuring behaviour. He began slapping his face; pi.p.ching himself; hitting windows and the television with the palms of his hands. He then laid down and began kicking at the entertainment unit. He was very loud, m~1ring incomprehensible sounds, and appeared to be very agitated. Ms Barrie stated the gnevoI at first had leaned over uR" and tried to pick him up while asking him to return to the table where ; he had been wormng, but "R" simply moved farther away from her. Ms Barrie perceived, , I the grievor becoíning angry at this point. When asked her impression at this point r I I I Ms Barrie stated, "Maybe he no longer wanted to do the task or felt. uncomfoltable, I just r I S 'd lLS9'oN ell!^~JOlq neSdO ~d9l:Zl tOOZ '9 ' nr -8. don't lmow." Ms Barrie continued to say that at this point the 'grievor sat all the couch and began talking to "R" by saying, Jen is not impressed It; and to Ms Banie said, "He only behaves like this when people are around". Ms Barrie's impression was fiR" was having an emotional outburst that was continuing and the grievor was becoming more frustrated. ' . According to Ms Barrie the grievor next decided to put uR"'s shoes, socks, and coat on and take him outdoors on a patio. .'R" was unwilling to participate. The gzievor put his socks and shoes on but was unable to put his coat on and then grabbed "R" by the ankle and dragged him along the linoleum floored hallway to the patio area and got uR" outside. "R" stood on the patio for two or three minutes. He calmed down immediately upon going outside and began talking nonnally and bad no injuries that Ms Barrie could see. Ms Banie said, "We just had a little chit-chat and went inside again." This was approximately 1:50 p.m. and Ms Barrie left the home around 2:00 p.m. She said between 1:50 to 2:00 p.m. uR" seemed to be:fine. "He appeared to be back to his nonnal self. ' There was no more self-injwious behav;i.our." , Ms Barrie said that IjR" and the grievorw~ed her to the door as she was leaving ,-,and "R" saidgoodbyeandkissedhersleeve~ But uR"thenbeganslappinghisfaceagain and while not, in her view, embarking on another emotional outburst he was beginning to again perform some self-injurious behaviour. Ms Banie testified as she was leaving the grievor once again had "R" by the ankle and was dragging him toward the living, room. Ms Banie conunented the grievor was not dragging "Rit as aggressively as before but she had appe~ed to be in a relatively frustrated frame of D1ÌD;d. 6 'd lL89'oN ell!^~JOJq nesdo ~dgl:e;l vooe; '9 ' nr -9- Ms Barrie said nothing to the grievor about the grievor's actions while at the premises on December 11 and when asked why not she replìed;, ell was a student on placement and I was there to observe and basically to be a fly on the wall. /uly concerns I had were to be directed to my supervisor." She wrote her repon the following day (ex. 10) which precipitated the investigation and ultimate termÏnation of the grievor. The grievor's narrative of what happened shoItly after Ms Barrie's amval continues and corresponds generally to that of Ms Barrie's but with two exceptions. The grievor states she did not get uR"'s socks and shoes on before dragging him and denies having accompanied Ms Barrie to the door as she was leaving and denies having dragged "R" by the ankle a second time. ,As stated earlier, the grtevor was pursuing "R"'s schooling with him on. December 11. They would frequently move from subject to subject due to fiR'" s short attention span. She was trying to follow his school schedule. During the morning things Went well. As the grievorsaid - "It was just a plain old day - we had lunch and we talked". . - But things changed shortly after Ms Banie aniyed. The griever said, "When a ,.newperson comes on to the scene "R",will act out to see exactly what the outcome will be. He gets a lot of satisfaction to see a person run.. He's very very smart - he attempts to play us like a violin, he's interesting, challenging." For a short while after Ms Banie anìved uR" was okay. He soon slid off bis chair, however, and began kicking the wall. The griever at first ignored bim, trying not to react, just paying no attention to him but his behaviour continued to escalate. The , , a l 'd lL89'oN all !^~JOlq naSdO ~d9l:ll tOOl '9 'Inr ., '-10 - grievor then moved the couch to the front of the television set and the Christmas tree so he could not get at them. Then he ran to the window slamming into it. He once again feU to the floor. The grievor tried to pick him up from behind with her arms arolmd his chest and under his arms but he became limp and slid through her aImS. "R'. was laughing at the grievor by this tiÏrie. She realized he was not ca1ming down. By now she was speaking sternly to him which is the required procedure but still having no' apparent effect on him. When she pulled him away from the window he would get up and run at it again. The grievor had now tried" the three (3) procedures taught to employees - (1) try to verbally redirect the client's interests; (2) physically assist recfuection of the client1s interests by gently urging him away (such as the window) but without pushing; (3) physically pull the client away from the object (the window). The grievorwas now. at step three and it simply wasn't working. He would get up and run toward the window again and again. The grtevor became "petrified" for the safety of "R" . , He could break the window " and seriously injure himself. She believed his actions were due to Ms Banie's presence. She knew if uRn could get the upper hand he would try and realized she had to change the situation. She decided she bad to move him away from the window. She' concluded the safest place where he could expel his aggression was out on the deck where there was a high fence. She felt confident he could not injure himseli out there yet he could release ~s built-up aggressiveness any way he wanted to. The grievor therefore decided to get uR" to the deck. He was lying down and -not cooperating. So she grabbed his' ankle and his ~hoes and dragged him down the hallway to the entrance of the deck. . II 'd lL89'oN all!^~JOJq nasdo ~d9l:ll vOOl '9 ' nr .11- While dragging "R" he had his hands together over his head and was smiling at the griever. He at no time tried to get free or to grab any object along the hallway (such as a door frame) to prevent bhn from being dragged farther. Once aniving at the deck entrance he continued to smile while the grievor put his shoes on whereupon he got up and walked onto the deck where he was completely calm. The rest of the day went without further incident. The grievor said she did not accompany Ms Barrie to the door upon her departure but rather they said their goodbyes at the deck entrance. To round out her evidence the grievor painted a picture of "R" as she sees him. From his records and her involvement with him the griever stated that uR" was diagnosed as having Fetal Alcohol Syndrome (F AS). He was premature at birth and is an energetic child. Persons haVÙ1g F AS manifest problems in various ways. They tend. to be impulsive; have developmental delays; physical appearances that are recognizable such as having a flatter face with eyes set wider apart than Donna!; they tend to want with an ambling gait; and tend to he aggressive which can be extreme at times. - The aggressiveness may manifest itself in a variety of ways. The individual will often run at someone; slam into a window or wall; has a tendency to kick things that . breakeasilY;}lead-butts into objects and people; and has a tendency to kick and punch people. Glass windows have been replaced with plexiglass wherever possible. The grievor continued to say that while uRn is impulsive he telegraphs many of his movements before making them. A person exposed to "'R II for a period of time becomes aware of his mannerisms and can usually predict what is about to happen before it occurs. But what is disheartening is uRn has no regard for safety to himself (or . l l 'd lL89'ON 811 !^~JOJq n8SdO ~d9l:ll tOOl '9 ' nr -12 - to others). He will put his hand (fist) through a window without regard to se1f-injury. The grievor stated that IIR" usually has one incident every day and if left unchecked could lead to severe behaviour. She said she has had her head butted by uR" on occasion and has been bit, bitten, and kicked by him on numerous occasions. EMPLOYER ARGUMENT The employer submits the evidence is clear. By admitting to having dragged 'aR" down the hallway is evidence of abuse and is sufficient, standing alone, to establish just cause for dismissal. Further, the ~evor has never admitted what she did was wrong other than to say it was wrong as per the employer's published protocol. She says she will never do it agam. However, at no time until tþis arbitration hearing did she remotely. admit to any wrongdoing and would not do it again. The employer submits it is late in - the day for such admission to be given any weight. Further, there is com1ict between the evidence of Ms Banie and the grievor. The employer submits Ms Barrie has no interest in the outcome oftbis case unlike that oithe grievor. Where conflict exists the . , employer urges that I accept Ms Banie's evidence over that of the grievor's. , Th.e employer submits that abuse in, any foIm cannot be tolerated in a community home setting. Once it is established that abuse occurred the employer's decision to terminate was appropriate and ought not to be disturbed,. The employer submits the grievance should be dismissed. ~ l 'd lLS9'oN all!^~JOJq naSdO ~dLl:ll tOOl '9 ' nr - 13- UNION SUBMISSION The employer alleges the grievor abused uR" by dragging him by the ankle. It is interesting that the employer does not suggest no intervention was wananted but rather some intervention by the use of the three step method Wê1S appropriate. But the employer wants to frame what happened as being an abuse case. But the grievor's attempts at restraint were consistent with the procedural steps implemented specifically for "R". She first attempted verbal persuasion taken by her cue from step 1. This was followed by a more commanding voice in an attempt to diffuse the emotional outburst. N exe she attempted the physical approach to try and lift him off the floor to get him to a seat but this was not successful. I'R" simply went limp, like jelly. Matters continued to escalate. "R" was continuing to have his emotional outburst. The grievor relied on- her experience. She knew she had to remove lúm from the cunent scene but AIR" was , not cooperating so she dragged him by the ankle to the deck expecting this change to diffus,e his emotional outburst. "R" appeared to enjoy being dragged along the floor. He was smiling and offering no resistance. Upon reaching the door to the deck the grievor put his shoes on and he went out onto the deck and the emotional outburst evaporated. ¡ There w~ ,p.o_,cID\lse involved. Ms Barrie is a student who simply lacked experience in ! t . dealing with or seeing how situations of these kinds are resolved. There was no just ¡ ! cause for discipline of any kind and the union seeks a declaration the grievor was i , ! dismissed without just cause contrary to the collective agreement and for an order for { 1 " reinstatement with full back pay plus interest. j , ) , " I 1 '~ elll^~~OJ~ neSdo ~dLl:i;l vaGi; '9 '¡nr vl'd lL89'oN ,'I . - 14 - Alternatively, Ü it is found some measure of discipline was wazranted then the offence ought not be categorized as client abuse but rather as use of unauthorized . . restraining techniques on Client "R" with the appropriate remedy being a letter of reprimand. In suppon of its position the union submitted several prior arbitration decisions. In Riverview Hospital v. British Columbia Nurses' Union (Burdette Grievance) (1999] B.C.C.A.A.A. No. 475 (Burke) the grievor received a three day suspension for alleged patient abuse. The patient had a history of aggressive behaviour to others 'including staff and patients. She was unpredictable and had a tendency to strike or kick. One morning the patient refused to get up aDd dress and get ready for the day's activities. The grievor bad spoken to her on several occasions urging her to get ~ut of bed. Finally; four staff members under the direction of the grievor got the patient up hut only after some physical urging. The patient was resisting, being abusive and using profane . , , language- There was conflicting evidence whether the patient had kicked out. The grievor decided to move the patient from, her dorm to a side room for medication. The " , patient was clothed only in her undergarments and the, grievor stated ber decision to move, the patient without first placing more clothes on ,her was made oùt of safety concerns. She admits that by moving the patient to the side room compromised the dignity of the patient but this was over-ridden by her concern for the patient's safety, staff safety, and the safety of other patients. Arbitrator Burke reviewed the current thinking of patient abuse situations and the high standard of conduct expected from 9 l 'd lLS9'oN a I!^~:JOJq naSdO ~dLl:ll tOOl '9 ' nr . .15 - employees in the health care field. Arbitrator Burk~ allowed the grievance. She commented at para. 50 of her decision as follows: m Clearly the Griever was faced 'With difficult choices, none of which were satisfactory from the perspecti'O"e of the patient. I am mindful of the tension between the competing principles present in tbi.s situation as it arose. I also note that I mUst have regard to the public interest as well as that of the Grl~vor and the employer. I have found however that the defense of safety based on the my.riad of fac:tors expressed by the Grievor. to be established. At most. the Griever may have exercised less than good judgement in response to what were difficult circumstances. This may be characterized as a potential error of judgement, not as 'abuse' and should 110t attract díscipline. In Options Northwest v. National Automobile, Aerospace, Transportation and General Workers ofCaltada (CAJJI- Canada) (Kelly Grievance) [2001} O.L.A.A No. 83 (Lubarsky) the grievor was a caregiver in a home for people with developmental disabilities. The griever was dismissed for alleged physical abuse to a client. The client was banging ~;r head on the floor and the griever was attempting to restrain her wblle another employee was attempting to place a pillow under the client's head. The grievor clenched the client's hair in her hand on one side of the client's head to try to possibly control or support her head. The grievor admitted to clenching the client's head in an effort to stop her from banging on the floor or bitting fumiture. The arbitrator concluded that while .. ' .. ',.", the form of restraint was inappropriate in the circumstances it was not an act of physical abuse to the client. The union submits that what occuned on December ~ 1 was not abuse of uR" in any way. The grievor was attempting to diffuse a situation in which .aR" bad an emotional outburst and she acted in the ...most effective maImer in cahning him down. Therefore, the grievance ought to be allowed: . 9 l 'd lL89'oN all !^~JOJq naSdo ~dLl:Zl'vOOZ '9 'Inr . . -16 - ANALYSIS I first tUrn. to the issue of the standard of proof normally required in' a health care , . setting in cases such as is before me. Arbitrator Hunter in St. Joseph '5 Health Care Centre (London) and L.D.S. W. Local 220 (May 4, 1992), umeponed (HWlter) quoted in Options NOrlllwest, supra, sets out the standard as follows: It goes almost without saying that patient abuse is perhaps the most serious allegation that can be made against a professional health care worker. If true and proven, it is a most serious breach of the relationship of trust and dependency between the patient and the Hospital; ü untrue or Wlproven, it Is a most damning slur on the integrity and professional reputation of a health care worker. Consequently, I approach this cage aware of its importance to all parties and conscious of the necessity for meticulous faCt finding and judicious cbnsideration and weighing of ~ of the evidence. At the conclusion of that process I shall have to determine if the Hospital has ptOved any, or all, allegations ofpat1ent abuse agamst the Griever by 'clear, cogent and compelling e11idence'. The parties agreed that this was the c:o:crect stan,dard of proof in such a case and that is the standard I intend to apply. Applying the standard of proof on a "balance of probabilities based on clear, cogent, and compelling evidence" I find that in th~ circumstances of this case the grievor is not guilty of having abused Client !fR". I find I must accept the grievor's version of events over that of Ms Banie to the extent tl1ey conflict. I do not imply any criticism of Ms Barrie who was forthright and honest in her testimony before me. Nor do I sugge.st Ms Barrie ought not to have reponed a suspected case of physical abuse, to .her ,supervisor. Ho~ever, in assessing the reliability other evidence, I am mindful of the fact ' , she was a placement student at the time and had limited, if any, exposure to se]f-abusive conduct as, was being exhibited by uR" at the time. The grievor had worked with ..~" on a one-to-one basis for a fairly lengthy period and, in my View, her experience in working with fiR" had a much greater understanding, appreciation, and sense of L l 'd lL89'oN all !^~JOJq naSdO ~d8l:ll tOOl '9 '¡nr , - 17 - expectation on how best to handle the situation. Her instinct proved to be correct. Upon dragging uRn he quickly calmed down and appeared to he enjoying lithe game" ofbeíng pulled down the hallway. He was being distracted from the cause of his emotional outburst and by the time they reached the deck door he calmly allowed the grievor to put on his shoes following which he walked out on the deck in a calm manner and began talking normally with the grievor and Ms Banie. There was no physical injury caused to "Rn and there is no evidence he suffered in any other manner due to the incident. The grievor is a compassionate person whose main concern on December 11 was to diffuse an escalating situation which was quickly ge~9' out of control. The action she took by dragging "R" down the hallway accomplished the desired goal. There was some discussion concerning the fact UR" did not have a coat on while. he was out on the deck. He wore a fleece sweater and given the temperatUre of the day - as provided by the grievor - a high of 8° Celsius and a low of -OJ. Celsius and zero precipitation (ex. 15), I am unable to find that "R" was abused wben he went out on the deck for two or three minutes that day. Finally. management' 5 decision to terminate the grievor as expressed in its December 19 letter contains one fatal flaw to having its decision upheld. The'statement contained in the second paragraph that the client was dragged over the threshold and onto the deck is not supponed by the evidence. I acknowledge the sentence begins with "you admitted..." but, I repeat, the statement is not supported by the evidence adduced during these proceedings. Had such an' occmrence been established by the evidence other considerations would have applied. I also point out the letter does not state the 8 l 'd lL89'ON 811 !^~~OJq n8SdO ~d8l:ll vOOl '9 ' nr . I .18 - griever dragged "R" tWice which is a poignant omission and which fwthet" supports the grievor's e~dence. .. Before c1osiIlg' it mUSt be said the g¡ievarls ac'tions were unenhedox. lD my view, she undertook considerable Iisk in di'aggitIg "Rd by the ankle down a hallway. It could easily have resulted in a finding of abuse. However, when viewed objectively one must question what alternatives were available to the griever in bar efforts to diffuse the sitUation that was continuing to escalate. She had. utilized the three Step protocol hut to no avail. I suspect the grievor's assessment that Ms Banìe's presence cont:dbuted to dR "'s behaviour is coueer. Possibly Ms Barrie ought to have removed herself from the a:œa. But Ms Barrie was inexperienced in these matters and cannot be faulted for ba.ving' remained. She bad )Jeen ÎDStIUCted to attend and observe the interactions betWeen the griever and "R'. and.fill out the integrity check fonn. Possibly the griever ought to have, requested Ms Bania leave to enable bet to work with uH'1 in ca1m:ing him down without unnecessazy distraCtions. But the gIievor was aware Ms Banie, had been œsttucted by supervision to callY out a task of observation. So it would be understandabJe for her not to request Ms BaIIie ~ remove henteIf flam the scens. , It is agreed. however. the grievor" s UIlOItbodox method of defusing the situation worked. The griever assumed a 'great deal of Iisk in domg so. Her actions could. have '. resulted in a finding of abuse. But the evidence.is clear. There was DO, hann caused to fiR". neither physicaUy nor mentaJly. There was no ÎI1tem by the griever to abuse .'R fI and I ûnd nODe occuned. 6l . d lL89'oN al !^~JOJq naSdO ~d8l:6l 17006 '9 ' nr . -19 - . , Accordingly, for all of the reasons set out in this decision I find the employer has failed to establish client abuse by clear, cogent. and compelling evidence. . . The grievance succeeds. The grievor is to be reinstated immediately with full compensation, benefits. and interest on the outstandiDg amount owing. I return. the matter back to the parties to work out the amounts outstandìng. The usual nùes respecting mitigation apply. I retain jurisdiction to resolve any difficulties that may arise with the implementation of this award. Dated at Kingston, Ontario, this 9th day of January, 2003. ~Lw C. Gordon Simmons Arbitrator a l 'd lLS9'ON all!^~JOlq naSdO ~dSl:ll tOOl '9 'Inr ,