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HomeMy WebLinkAboutKelly 01-01-22 01/~3/2001 14:05 FAX 613 567 2921 R A 01/23/2801 13:17 MB KELLER & RSSC. ~ 5672921 -;- In the Matter of an Arbitration Between Royal ottawa Health Care Group And (Employer) Ontario Public Service Employees Union And In the Matter of Cal Kelly Before: M.B. Keller, Sole Arbitrator Appearances: Ms. Susan Ballantyne for the Union Mr. R. Zinn for the Employer (Union) Hearings in Ottawa, May 24, Decernbel' 4 imd 8, 2000 and J~IlUi]fY 8, 2001. ~004 NO.282 002 01/23/2001 14:05 FAX 613 567 2921 R A 01/23/2001 13:17 MB KELLER & ASSC. ~ 5672921 141005 NO. 282 003 -2- AWARD On April 15, 1999 the grievor was suspended without pay for two days. According to the letter of discipline he received from the employer the grievor was suspended for disclosing personal Information about a psychiatric resident in a fashion that was unethical and disrespectful of professional boundaries and for making comments to the psychiatric resident that were inappropriate, rude and intrusIve. The letter of suspension also makes reference to sensitivity training the grlevor took in 1999 and contains the notation "This latest incident establishes that you have not corrected your conduct.. ,," The grievor is a member of the employer's forensic program. He has over 20 years seniority with the hospital. He holds a degree of Master of Social Work. A significant part of ~lls Work currently I and since 1987 f has been as group leader of the Relapse Prevention Group. The group consists of men all of whom suffer from pedophilia. WIth the exception of a brief period in 1987 when the grlevor co-led the group with Mr. Jim Allin, the grievor has led the group by himself. Overall responsibility for the group belongs to Dr. John Bradford. The doctor has only been involved with the group two times since its inception, both times attending at Christmas parties. It was uncontradicted that the grievor has run the group by himself since that time and It was further uncontradicted that he has run the group well. The group has been visited by outsiders, male and female, on average twice per year. The visitors have included medical residents. One such visit was scheduled to take place on Tuesday] March 2nd, 1999 by two residents Drs. Huntington and Kolodziej. The two were supposed to meet with the grievor prior to the group session to review arrangements but neither attended either the pre-meeting or the grou p session. Neither Informed the 9 rievor that they would not aHend. In mid March Huntington asked the grlevor if she could attenr:l the group session that eveninQ He ~:1~Jreed 2nd e! pre"nioetina was set for 5:10 Ihr,l ;:n1f~rnO()n in H,P C:4rpjPti8, 01/23/2001 14:05 FAX 613 567 2921 R A 0.-1/2372001 13: 17 'MB I<ELLER & ASSC. -t 5672921 ~006 NO. 282 GlEl4 -3- prior to the group session. The grieV'or testified that the purpose of asking her to meet at tha.t time was to explain the group dynamics to her and to "pre-screenn her. The grievor further testified that he pre-screens all visitors. While in the cafeteria the grievor asked Huntington a number of questIons to which she responded. Some days later she complained that the questions were Inappropriate and demeaning. She also complained about some matters which took place during the group meeting. Those matters will be dealt with later In this award, It was as a result of that complaint that the grievor was dIsciplined. The questions to which she objected at the pre-meeting wer~'~'1) where do you live, 2) where does your family live, 3) have you ever been a brownie. 4) are your parents proud of you, 5) have you ever been sexually assaulted, and 6) have you ever felt discriminated against as a female in medicine. The evidence of the grievorwas that questions regarding 1), 2), 4) were asked just to make idle conversation. They were asked between spoonfuls of soup in order to get to know her better. The question about discrimination was asked because he was curious about the subject following some reading he had recently done. The question about brownies flowed from a question the grievor asked about whether she had ever participated in any group sessions. When she said she had not, he jokingly asked if she had ever been a brownie. The grievor testified he asked her whether she had ever been sexually assaulted because of an incident that had occurred in the past at a group session where a female visitor who had been sexually assaulted became upset as a result of the discussion at the session. He indicated that it was his practice to ask that question of all female visitors to ensure that that situation would not arise again. It was common ground between the grievor and Huntington that she had asked to participate fll8Tely as an observer. No discussion took place as to what that meant. The grievor said thall1e allows the woup to make fun of him and Huntington told hIm that she didn't want me group to rnak!:J fUll ur 1181, . .~,. ..;jJbJ~ 01/23/2001 14:06 FAX 613 567 2921 R A 01/23/2B01 13:17 MB KELLER & ASSC. ~ 5672921 ~007 NO. 282 1105 -4- As the meeting commenced the griever introduced Huntington by her first name and Indicated to the group that she had never participated in a group session before except as a brownie. The grievor also told the group that Huntington was from the Marmmes, that it was a chance to hear her feminine voice and that she was not a transsexual. During the course of the session a medical Question was asked of Huntington and she responded. The grievor asked her If she had any questions of the group and she said no and the grievor then asked the group tfthey wished to ask her any questions, She testified that several group members asked her medical questions. At no time did Huntington refuse to answer questions putto her by members ofthe group. Huntington testlfied that even though she didn't complain right away she was concerned about what had occurred. She IndIcated that she discussed the matter with a number of her colleagues as well as her supervisor, Dr. Bradford, and Jim Allin the admInistrator for , I the area prior to making a decision as to what to do. At the time the options she was considering was whether to complain in writing or to speak directly to the grievor. She indicated to the Board that in her discussions with Allin she was told that what had occurred was not an isolated incIdent, that others in the past felt the same way she now did in their day-to-day dealings with the grievor. Huntington stated that her decision to formally complain was not ~o'elv based on this information. The evidence before the Board regarding this matter was that the issue referred to by Allin was the subject of a grievance. that the matter was settled and that the settlement contained a provision that all documentation would be removed from the file, including the letier of reprimand. Thiswas acknowledged by Allin. Huntington also testified that the grievor never apologized to her. The Board 81so heard from stephen Arbuckle a momber of management as well as Allin r::md B rCldford. All testified as to what thuy cl)fli::>id Hred Inlpi opel' ;:;bout 'NhDt h,Jd (1('clltlpd ~,~-{J 01123/2001 14: 06 FAX 613 567 2921 R A 0-1/23/2001 13: 17 MB KELLER & ASSC. ~ 5672921 lil1008 NO.282 006 -5~ prior to and during the group session. Arbuckle and Allin also testffied about the meeting they had with the grievor prior to the imposition of discipline. Arbuckle testined that he had two principle areas of concern, the first being the breach of boundaries with respect to what occurred during the group session as Huntington had jndica~ed she wanted just to be an observer. His sec:ond major area of concern was with respect to the comments about brownies and transsexuals. He Indicated he did not know what AlIln~relied on in impOSIng the discIpline. Allin who Is responsible for the administrative fu net/Gning of the program, testified that he was concerned that Huntlngton's confidentiality was not respected, that she had been put on the spot during the group session and that she had been made uncomfortable via the personal nature of the questions put to her during the discussion in the cafeteria. He acknowledged that not all the questions asked of Huntington by the grlevor were of concern to him. Bradford who is the Clinical Director of the Forensic Program is the direct supervIsor of Huntington, Allin and the grievor. He testified that he shared Huntlngton1s concern with respect to the questions put to her prior to the group session as well as what occurred during the session. The evidence of the grievor with respect to what happened In the cafeteria has been recJted above. In dealing with the group session, the grievor testified that he introduces all visitors by their first name as first names are only used in the group session, He stated that he uses humor to break the tension during the session and the brownie and transsexual comments were made in the context. He acknowledged that nobody laughed at what he considered at the time to be a joke, He further testified that it was his practice. and has been so since the inception of the group, to inVOlve vbHurS to SUint'; H;dont at ICD:,t!n the operation oftllp UfnlJp HB inrllr:ated ., ~ ,~~,................... ..~ J AL..~,..j.'.}:i...~ 01/23/2001 14:07 FAX 613 567 2921 R A . 01/23/2001 13: 17 I'1B KELLER & RSSC. -t 5672921 141 009 NO. 282 Gl07 -6- that the group did not like to be viewed as animals on display and this was avoided by having some participation by visitors. He stated that at no tIme either prlorto or during the group session did he feel that Huntington Was bothered either by the questions put to her or by her participatIng in the group session nor did she express any reluctance or concern to him at tile time or later. His evidence was that In his meeting with Allin and Arbuckle he explained the context of the questions asked of Huntington, that some were simply to make conversation and that the question regarding sexual assault was a screening question, He also told them why he Involved Huntington in the group, As well. he explained to them why he had made the brownie and transsexual comments. Finally, he offered to meet wIth Huntington and apologized to her but that offer was refused by Allin and Arbuckle. Reference was made to the employer policy entitled Code of Ethics and BoundaryViolatlon Guidelines. It was the employer's evidence that the policy had been the subject of meetings with all employees atwhich time itwas reviewed and its' importance emphasized. The grievor testified that he had not attended any such meeting but was aware generally af the policy. The employer argued that the grievor never denIed the statements attributed to him, On that basis the employer was justified in taking the complaint of Huntington as s.erlously as it did. It was suggested that the employerfs policy and code of ethics were nothing more than simple courtesy and decency and that the grievor's questions and conduct went beyond what was necessary, even if he screens vIsitors coming into the group and even if he deals with all visitors In that maHer, It was also suggested that screening questions were not required as visitors were sent by Bradford. It was suggested that the brownie and transsexual comments went beyond any level of appropriateness, that the question Qfwhether Huntington had ever been sexually assaulted was a vinli'ltion of her privacy and (Jidn'l elicit me intonmnion he needed, !hClt rdellin~j to "" .....J 01123/2001 14: 07 FAX 613 567 2921 R A 01/23/2B01 13:17 ME KELLER & RSSC. ~ 5672921 @JOI0 NO. 282 GlOB ~7w Huntington by her first name made her part of the group and violated her request tp be just an observer and that allowing questions to be put to her that was as well a vIolation of that request. It was also stated that allowIng the group p~rticlpants to solicit medical opinions of Huntington was a violation of professional boundaries. The employer argued that the purpose ofdtscipline Is to bring home unacceptable conduct and that in the inst~nt case the disclpline is warranted and should be maintained because the grievor still continues to deny any wrongdoing. It was suggested that the offer of apology by the grievor should not be considered to be mitigating as the apology was made not because he felt he had done something wrong but because Huntington was upset. Finally. it was submitted that a two day suspension Is within a reasonable area and It is not the role of the arbitrator to utlnker" with discipline where it is within reason. Counsel for the union pointed to various contradictions in the evidence of Allin, Arbuckle and Bradford as to what they had considered Important breaches of policy in the instant case. With respect specifically to the brownie comment it was argued that It was simply a throwaway line to let the group know that Huntington had limited group experience. Regarding the sexual assault question. it was suggested that the question was necessary because of the prior experience the grievor had had in the past with at least one visitor In spite of the fact that In that instance the visitor had also been sent by Bradford, It was suggested that perhaps there should have been some further discussion between the grievor and Huntington about what was meant by observer status but that In the soclal worker context it does not necessarily mean that an observer will necessarily remain silent It was argued on behalf of the grievor that he was not guilty of any culpable misconduct. He specifically respected the boundaries she had requested which was that she cannot be abused or made fun of. Counsel stated the grievor may not have respected Huntington's unarticulated boundaries but that he cannot be punished for ttlat. _.. .,'. .,1,).:~~(~.~H"-&J,~ 01/23/2001 14: 08 FAX 613 567 2921 R_A 0-1/23/2001 i3: 17 MB f<ELLER &. RSSC. ~ 5672'321 141011 NO. 282 G109 -8~ The u.nlon takes issue with the employer's suggestion that the offer of an apology was not mitigating. It stated that the offer showed sensItivity for having hurt Huntington's feelings and showed sincerity in wanting to deal with the issue dIrectly with her. Finally, it was argued that the grievor has no prior discipline and under the circumstances no discfpline is warranted but if it ISl a two day suspension is too severe. The grievor has run the group session in question alone for the last 10 or 11 years. In that time he has had an average of two or three visitors per year. He has generally run the group without supervision, no one has questioned the effectiveness ofihe group and there have been no comptalnts about the manner in which he has performed with the group. There have been no complaints about the manner in whIch he lias treated vIsitors to the group nor have visItors to the group complained about the manner in which they had been treated prior to or during the group sessions. In the instant case. two questlons have to be determined. The first is whether the conduct of the grievor and the manner in which he treated Huntington prlorto and during the group session warranted any disciplinary action. If the answer Is yes, it must then be determined whether a two day suspension is appropriate or whether a lesser penalty should be substituted. In analyzing the evidence with respect to the first questIon what becomes very evident is that even among the employer's witnesses there Is some difference as to whether each of the matters complained of by Huntington were worthy of complaint and whether each ofthe matters complained of were of equal significance, For example, generally speaking. the evidence was that the questions about where HuntIngton came from and the fact she was introduced by her first name would not take on the same importance or weight as the question regarding sexual assault and her introduction as a brownie and subsequent transsexual comments. There was universal concern that Huntington's wishes not to be <Jnything but an observer were not respected. " ._._,.;..,;~ 01/23/2001 14:08 FAX 613 567 2921 ~ A 0-l/23/2001 13: 1? MB KELLER 2. ASSC. ." 5672921 I4J 012 NO. 282 010 -9~ I acknowledge the reason why the grievor asked Huntington whether she had been sexually assaulted In lhe past. It was suggested by lhe employer that the question did not elicit the informatIon the grlevor required but, as counsel for the union pointed out, hindsight is 20/20 and perhaps the question could have been put differently, But the grievor has asked that quest10n of previous visitors to avoid what has occurred in the past, without complaint. Therefore, given the context and history I do not view this ql,iestion In the same light as it was viewed by the employer, I accept the grievor's explanation that the questions regarding where she came from, whether her parents were proud of her and whether she felt discriminated against as a woman were Just Idle chitchat and curiosity. I do not view them as an attempt on his part to become personal wilh Huntington, nor do I view them as crossing personal boundaries. The grievor was making conversation. If Huntington had had a problem she could have refused to answer or discouraged further questions. The issue with respect to Huntington's request to be jm~t an obseNer 18, in my view, unfortunate. Unfortunate in the sense that the grlevor clearly had in his mind a notion of what an obseNer meant and Huntington another. In retrospect a longer dIscussion should have taken place between the two af them as to what was going 10 happen during the session but, given the fact the grievor treafed Huntington as he had treated other visitors in the pas1, without complaint, It is difficult to see how he can now be accused of haVing done anything improper. The same comment can be made with respect to allowing members of the group to put questions to Huntington. I cannot see how introducing Huntington by her first name can be considered to be a boundary violatIon or breach of professional ethics when the evidence is that this is how all visitors have been introduced and that the group operates on a first name basis. ) share the employer's concerns with respect to the brownie and transsexual comments. The quc:::.tion then is whether the brf.1Wn!l~ Find lr~nSisexu;.11 c'ommentG of themselves .-_"...L:"w~,".~Ir.. 01123/2001 14: 08 FAX 613 567 2921 n A 0<1/23/'2001 13: 17 MB KELLER & ASSC. -t 5672921 fill 013 NO. 282 011 ~1 Q. warrant disoipline. After a careful analysis of1ne facts and context I conclude that it does. In coming to that conclusion one has to remember the composition of the members of the group session. They are pedophiles. References to brownies and transsexuals in that context add nothing positive to the discussion, potentially can conjure up images that are harmful and could be an embarrassment to the subject of those ao'rnments. What then is the appropriate disciplinary response. In making that determinatIon a number of factors have to be taken Into account. The first Is the grievor's explanation for having made those comments. He testified that they were made in jest although he acknowledged that nobody laughed and In retrospect the comment was not funny. The second Is that when oonfronted by Allin and Arbuckle the grlevor offered to meet with Huntington, discuss the Issue wIth her and apologize. That offer was refused by the employer. The third is that the grievor Is a long service employee with no disciplinary record. The fourth is that the actions of the grieyor were nO,t malicious but were evidence of poor judgment. The fifth is that Huntington's decision, in part at least, to fonnafly complain instead of meeting wIth the grlevor to discuss the matter with him was based on comments made to her by Allin and Arbuckle that others have had the same problem with the grievor in the past. The sixth is that the letter of suspension specifically makes reference to a past Incident which, by agreeme,nt of the parties was settled. No reiiance shall have been placed on that incident by the :employer. The seventh is that It was the grievor's uncontradicted testimony that his actions were consistent with how he has acted with visitors In the past both prior to and during the group session. with no previous complaint by anyone, at any time. The next questIon Is to determine the appropriate remedy. In making this determination I can not ignore the unwillingness of the employer to allow the grievor to meet and apologize to Huntington. Had they allowed It'there would potentially have been a very different outcome to the event. ! find on lhr:> h:-l,-,is of nil of the above that tile two day sllSpension was unwarranted. ....,.-.iIr;"':....,,;.Jcu.~....~ 01/23/2001 14:09 FAX 613 567 2921 R A @1/23/2001 13:17 ME KELLER & ASSC. ~ 5672921 @014 NO. 282 (;112 .. .; ~11 ~ Order that all reference to the two day suspension be deleted from the grievor's files, that he be reImbursed for monies lost with interest and that the following notation be put in his file: Mr. Kelly has been given a written reprimand for displaying lack of judgment for comments made by him when.introducing q guest at a group session. No further action Is to be taken against Mr, Kelly regarding this matter. In order to avoid such a circumstance happening In the future I strongly urge the parties to meet to establish proper protocols for screening visitors to group sessions, for how fa introduce them, and to delineate the role they are playing while the group is in session. I remain seized to deal with any issues that might arise from this award. Ottawa, Ontario, this 2211d day of January, 2001. ~~ M.B. Keller. Arbitrator