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HomeMy WebLinkAbout1975-0004.Hopcraft.75-12-23CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARIJ 416/%5/1410 Owen’s Perk Toronto. Onterlo M?A 125 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING AC1 Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. G. F. Hopcraft (Grievor) The Ministry of Community & Social Services (Huronia Regional Centre) (The Employer) Before: 0. M. Beatty Chairman J. W. Henley Member S. R. Hennessy Member For the Grievor G. Bruce - O.P.S.E.U. For the Employer J. Kempton - Personnel Officer Hearing Westbury Hotel, Toronto Ontario, December 15, 1975 1. In this grievance brought before the Grievance Settlement Board, Mr. G.F. Hopcraft, ,a Residential Counsellor 2 at the Ministry of Comnunity and Social Services' Huronia Regional Centre claims that he was unjustly dismissed on July 23, 1975. The parties were agreed, and advised the Board at the outset of the hearing that this Board was properly constituted and had jurisdiction to consider the grievance before it. As described below, however, the parties were not agreed on many of the circumstances surrounding the incident which precipitated Mr. Hopcraft's'dismissal and it is in essence the resolution of the conflicting evidence adduced by the parties which is determinative of the ultimate resolution of his grievance. There is no dispute between the parties that Mr. Hopcraft first became employed at what is now known as the Huronia Regional Centre sometime in 1969. After completing a two year, in-house training program in 1971, Mr. Hopcraft became and is still classified as a Residential Counsellor 2. In this position Mr. Hopcraft has worked in a number of units in the Huronia Regional Centre and from October 1974 until July 14, 1975 he had worked on the evening shift ,~, in a section of the Education unit known as Terrace View 2 (T-V2). However, and as of July 14, 1975, Mr. Hopcraft had been assigned to a position on the day shift in which he was to participate in a beach programne arranged for the residents in T-V2. It was while partici- pating in this progranmte on July 18, 1975 that the incident which precipitated his discharge is alleged to have occurred. 2. More specifically, it appears from all of the witnesses that the beach programne for that day proceeded without incident until the staff and residents proceeded back up to T-V2 at approximately 4:OO P.M. Although Miss J.M. Daley, who was a high school student participating in the Ministry's Retardation Sumner Volunteer Prograrene (R.S.V.P.), testified that she had seen Mr. Hopcraft wrestling with a Mr. P, one of the patients in the group,while they were at the beach, she candidly admitted that she did not know whether the grievor was simply playing with Mr. P. and did not believe from what she perceived that Mr. Hopcraft had any intention to harm Mr. P. In any event from the fact that the employer in its letter of dismissal made no reference to it. and did not rely on any incident other than what transpired at approximately 4:15 - 4:20, we can not be concerned in the resolution of this grievance with anything other than that latter incident. It is also a matter of agreement between the parties that when the group returned to T-V2, Mr. A.F. Greene, the Residential Counsellor 4 in charge of the group, proceeded to a large hall area where he corenenced to hand out pay slips to some of the residents ofthe unit for certain housekeeping servfces that some of the resfdents regularly performed. There is also no dispute that Mr. Greene performed these duties at a table located approximately in the centre of this large hall area. Sitting around the table, although apparently not partici- pating in the payments being made to the residents, were a Mr. M. Rowe, another participant in the R.S.V.P. and Miss L. Merza, a student at Georgian College who was working at the Centre as part of her course of instruction in the Mental Retardation Counsellor course in 3. which she was enrolled at Georgian College. In addition to these people, Miss Daley was sitting a few feet from the table, about half way between the table and couch on which the grievor was sitting which was located on the east wall of the hall. Finally a Mr. Coull wbo was also a Residential Counsellor 2, was standing and engaged in some discussion at the northerly end of the hall and apparently did not witness the . . events which are in issue between'the parties. ! From all of the evidence there can be no dispute that while Mr. Greene was engaged in the task of handing out the pay packages to the residents, Mr. Hopcraft quite suddenly rose from his position on the couch, picked up a fly swatter which,was on the table where Messrs. Greene and Rowe and Miss Merza were sitting, and proceeded over to where the resident, Mr. P., was situate and commenced to slap him anywhere from four to ten times with the fly swatter. The parties are also agreed that the entire incident, including Mr. Hopcraft's leaving the couch; picking up the fly swatter, striking Mr. P. and returning to his position on the couch was over in very brief period of time. Indeed so quickly must that entire incident have transpired that no other member of the staff actually left their positions around the table to physically restrain Mr. Hopcraft or to attend to the resident Mr. P. From all of the accounts, Mr. Hopcraft simply returned to his position on the couch after the incident and Mr. Green proceeded to finish paying out the monies to the residents. Indeed it was only after he had completed this task, which took another five to ten minutes, that Mr. Greene went over to examine Mr. P. and discovered 4. very faint marks on Mr. P. as a result of the blows he had received from the fly swatter. Finally there appears to be agreement between the parties.that Mr. Hopcraft remained on the couch after the incident until the end of his shift at which time he returned to the office to check out for the day. Apart from this consensus between the parties as to the general circumstances surrounding the confrontation between Mr. Hopcraft and Mr. P., there were numerous and on occasion significant differences in the testimony of the witnesses to the incident. Indeed, the dis- crepancies appear not only as between the evidence profferred by Mr. Hopcraft and the witnesses called by the employer, but as well between . the recollections of the three witnesses to the incident called by the Ministry. Although we do not impute any bad faith to any of the wit- nesses called by the Ministry and to the contrary we found them all to be forthright and candid in the evidence they gave, nevertheless our task of determining precisely what happened in T-V2 on the after- noon of July 18, 1975 is made mOre difficult by the differences that appear in their recollection of those events. More specifically, and by way of example there was a difference between Mr. Greene and Miss Oaley as to whether Mr. Hopcraft actually said anything to those assembled at the table when he picked up the fly swatter on his way to Mr. P. In addition there were differences in the testimony of Miss Daley and Miss Merza as to whether Mr. Hopcraft ran or walked from the table with the fly swatter as he approached Mr. P. and as to the manner in which Mr. Hopcraft actually struck the resident. Further there was some conflict as between Miss Daley and the other two witnesses who testified at the hearing as to Mr. P.'s 5. verbal response to the blows he received from Mr. Hopcraft. Most critically there was a difference of opinion as between Mr. Greene and Miss Daley on the one hand and Miss Merza and the grievor on the other as to whether the grievor stopped administering the blows oft his own volition or whether Mr. Greene shouted at him to stop. Finally each of the witnesses recalled different versions of what, if any, conversation transpired between MF. Greene and Mr. Hopcraft after the latter had returned the fly swatter to the table. More critically perhaps, there are also significant differences in the evidence of the three witnesses called by the employer and that testified to by the grievor himself. Almost all of these differences relate to the events which transpired inmznediately before and just as Mr. Hopcraft began to strike the patient Mr. P. Essentially it was his evidence that while he was sitting on the couch he noticed Mr. P. moving in a southerly direction down the centre of the hall, though closer to the west wall, with his arms waving and from Mr. Hopcraft's perception intent upon abusing another patient. In this regard it must be noted that all of the supervisors and Mr.~Hopcraft were agreed that Mr. P. could be a most difficult resident and had some proclivity to'be aggressive towards other patients. Indeed Mr. Hopcraft testified that when he and the two patients in question had been located inanother ward in the Education unit, he had had occasion to subdue Mr. P. to prevent him from attacking the same patient. In any event, according to Mr. Hopcraft, he perceived that Mr. P. was intent on abusing this second patient and accordingly he moved to prevent any altercation. He testified he first shouted 6. Mr. P.'s name and failing to get any response moved to the table, picked up the fly swatter, intercepted and threatened Mr. P. with it and again failing to deter Mr. P., began to lightly apply the fly swatter to the patient's shoulders. According to his evidence as a result of his action he was able to direct the patient over to,the couch on the west wall, some three or four feet from where he had intercepted him. According to Mr. Hopcraft having subdued Mr. P. he left him on the couch, returned the fly swatter to the table and proceeded back to the other couch where he had initially been sitting. The witnesses called by the employer recalled a quite different version of this sequence of events. However, and to some extent cor- roborating the grievor's version, Mr. Greene did testify that he had briefly caught a glimpse of Mr. P. moving in a southerly direction behind the table just prior to the actual incident. Further, according to his evidence, he did not actually see the first blows being administered, but rather only became aware of the situation when he heard the slap of the fly swatter and the screams of Mr. P. It was his -evidence, however, that when he first turned to determine what the commot- ion was all about, he saw Mr. P. sitting on the couch, protecting himself with his arms and legs and the grievor standing over him administering the blows with the fly swatter. Miss Daley's evidence on those points substantially conformed to Mr. Greene. She testified that she could not say for certain if she saw the first blows being struck, but that when she did look up she saw Mr. P. sitting on the couch trying to protect himself from the grievor who was standing over him striking him with the fly swatter. Finally Miss Merza testified that she in fact saw the 1. first blow being struck, and that just prior to that time she had seen Mr. P. sitting on the couch fidgetting and "fiddling around". She too testified that Mr. P. tried to protect himself by raising his hand and legs to ward off the blows being administered by the grievor. It is against that evidence that this Board must determine whether the employer had just cause to discharge tbe grievor. More particularly we are of the view that in the final analysis the resolut- ion of this grievance turns on the motive or reasons lying behind the grievor's striking of this patient on the day in question. That is to say it seems to this Board that if one accepts the employer's contention that the grievor's actions can only be characterized as an unprovoked and malicious assault on Mr. P. then it would necessarily follow thqt the discharge of the grievor must be sustained. In such a case the grievor would have exhibited such deficiencies of character that it would simply be intolerable and unacceptable to allow him to remain in charge of persons who have little or no ability to adequately protect their persons. If, however, one accepts the grievor's version as to what precipitated his behaviour with regard to this patient, and even if his perceptions were misguided or even wrong, then in light of certain evidence described below, we would be of the opinion that the grfevor had convnitted an error of judgement; which while justifying the invocation of some severe disciplinary sanction would not support the extreme penalty of dismissal. In making the distinction that we have, certain conclusions necessarily follow. In the first place we have no hesitation in i 8. concluding that the grievor did strike the patient, Mr. P., in a sufficiently harsh manner as to raise some marks on the latter's body. Further we think it inconceivable that any person, such as the grievor, who has worked in such an institution for some six years, could reason- ably hold the view that, in the circumstances even as he perceived them, striking a patfent with a fly swatter was an appropriate technique of patient control. Although the grievor made much of the fact that he had never been instructed on approved methods of patient restraint and although Mr. Greene conceded that the Ministry's information flow on such matters is poor, given the language adopted by the employer in Personnel Directive 17, paragraph (N) we simply can not accept the grievor's contention that he did not know that striking a patient with a fly swatter in the circumstances as he described them, would be tolerated by the employer. The Directive includes: N] Striking of Patients: No patient is to be struck for any reason whatsoever; approved methods of necessary patient qst&zt specifically exclude striking and any other form of unnecessary aggression. Any employee who strikes, slaps or.kicks a patienf will be dismissed. We think, given the fact that the grievor twice signed a document acknowledging that he understood the contents of that Directive, that his attempts to explain away his understanding of that document to be nothing other than senseless and mindless hair splitting. However, and also following from the distinction we believe to be determinative of the grievance before us, is the conclusion that Uirective 17, and 5n particul,ar paragraph (N) is not and can not be characterized as having been writ in stone. It is not and can not 9. assume a character more inmutable than the twelve tablets. Very simply, the language of paragraph (N) notwithstanding, we can not subscribe to the conclusion that any striking of a patient, in whatever circumstances, will on every occasion justify the termination of a member of staff who transgresses its provisions. Such inflexible and rigid terms of employ- ment simply fly in the face of and indeed subvert a myriad of basic principles, long known to the cornnon law, which would, if applicable, result either in the complete exoneration of the employee or in the amelioration of the seriousness of the incident. That is to say factors such as extreme provocation, or necessary self defense may, in the . . appropriate circumstances, afford an employee an absolute defense or in all events ameliorate the seriousness.of the misconduct so as to suspend the operation of all or part of Directive 17, paragraph N. Very simply, Directive.17 can not unilaterally foreclose to an,employee defenses which would otherwise be available to him. Indeed Directive 17 itself explicitly recognizes the impropriety and unreasonableness of unilater- ally promulgating a rigid and fannutable set of rules of employment. Thus in the second paragraph~of that Directive, support can be found for the type of distinction we believe to be relevant to the circum- stances on this case. The paragraph prod des: It is important that penalties be appropriate and related to the gravity of the offence. No set of instructions can cover every situation that my conceivably arise, nor do they allow for mitigating circumstances which must be individually considered when infractions occur. Similarly, disregarding rules under particularly critical conditions laay call for a mre severe penalty than would be the case in another environment. Fair assessment of specific cases must be the basis on which staif pmbleas are dealt with. However, it should be noted that dismissal is mandatory in cases of proven patient abuse, and criminal offences relating to the employee’s duties. By its terms, that paragraph recognizes a difference between proven patient abuse. which we would characterize the grievor's behaviour if we were to accept the employer's contention as to the grievor's motivation in striking Mr. P., and other instances of assaults on patients which might not be characterized as patient abuse, and which we would characterize the griever's behaviour if we accept the reasons he gave for his conduct. In short we believe that a "fair assessment of specific cases" and a consideration of “mitigating circumstances" necessarily requires this Board to determine in the case before us the precise reason or cause for the grievor's actions. Further even if we are wrong in our interpretation of Directive 17 as supporting the distinction we have drawn, we are of the view that S. 18(3) of The Crown Employees Collective Bargaining Act provides this Board with the requisite mandate to draw such distinctions in determining the propriety of any specific penalty imposed. S. 18(3) provides this Board with an overriding and all-encompassing mandate to assess each sanction imposed by the employer and to determine whether, in all of the circumstances,it is excessjve. In making that determination in the circumstances of this case we believe the grievor's state of mind, his motivation, is critical in assessing the justness and reasonableness of the penalty imposed. To put the matter somewhat more broadly, even though the employer may, by means of directives such as the one before us. delineate certain forms of'prohibited conduct and even though the rule itself may be reasonable in prohibiting the conduct in question, under S. 18(3) of the Act, such a directive cannot usurp or foreclose i i 11. thfs Board from exercising its statutory mandate to determine whether the penalty prescribed was just and reasonable in the circumstances. To draw on an analogy in the private sector, we would refer the parties to a frequently cited decision of the board of arbitration in RE LUGER 6 &MILL WORKERS' ONION Z&CAL 2537, 6 KVP CO. LTD. (1965) 16 L.A..C: 73, 65-86 (Robinson) where it was stated: I- Characteristics of Such Rule A rule unilaterally introduced by the company, and'not subsequently agreed to by the union, must satisfy the following requisites: 1. It must not be inoonsistent with the collective agreement . 2. It,must not be unreasonable. 3. It NSt be clear and unequivocal. 4. It must be brought to the attention of the employee affected before the company can act on it. 5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge. 6. Such rule should have been consistently enforced by the company from the time it Was introduced. II - Effect of Such Rule re Discharge 1. If the breach of the rule is the foundation for the discharge of an employee such rule is not binding upon the board of arbitration dealing with the grievance, except to the extent that the action of the company in discharging the griewr, finds adept- ante in the view of the arbitration board as to what is reesonablb or just cause. 2. In other words, the rule itself oannot determine the issue facing an arbitration board dealing with the question as to Whether or not the discharge Was for just cause because the very issue before such a board may require it to.$ass upOn tie ,reason&leness-cif~ the rule or upon other factors which lney affect the valid- ity of the rule itself. , 12; 3. The rights of the employees under the collective agreered cannot be impaired 01’ diminished by such a rizle but only by agreement of tbe parties. In asserting this overriding jurisdiction of the Grievance Settlement Board, we do rot want to leave any doubt as to the serious- ness and gravity with which we view the grievor's conduct however it is characterized, nor as to our general agreement with the purpose and thrust of Directive 17 and in particular paragraph (N). Under either of the possible characterizations of the grievor's behaviour, and even if one assumes his perception of an impending crisis to have been accurate, he,has conducted h.imself in a manner which can only be characterized as intolerable, cannot be condoned and for which he must suffer some disciplinary sanction. It is not for the Board, in the abstract, to hypothesize as to the possible circumstances in which an employee may in fact be justified in striking a patient or in which the striking of a patient might not merit his or her dismissal. Those circumstances must await our adjudication as they come before us in specific cases. Let it simply be said that, in agreeing with thrust of Directive 17, and paragraph (N) such circumstances must of necessity be limited and narrowly circumscribed. The employer is charged with the extremely onerous and delicate duty of supervising and caring for persons who simply are incapable of adequately supervising and caring for themselves. This employer must of necessity take every precaution and be uncompromisingly vigilant to ensure that the rights of those persons under its charge are at all times safeguarded and secure. This Ministry in short simply cannot relax its vigilance in ensuring that the type of behaviour engaged in by this grievor. for whatever reason, is not reoeated. 13. Against those legitmate and valid concerns of the Ministry, one must however consider the rights and circumstances of the members of its staff. Theirs is not a particularly easy task. In assessing their performance at their jobs one must not only consider the difficult circumstance under which they are working but in addition give some recognition to such considerations as their employment history, the likelihood that they will respond to some other form of discipline and the method and manner in which the patient was struck and similar factors which have been more fully delineated by this Board in the Maw l/75 case. - By way of further example with reference to the specific grievance before us, we would repeat that if this grievor was guilty of an error of judgment rather than of an unprovoked and irrational assault, then against his employment record as described below the sanction of dismissal must be characterized as excessive. Although there was very little evidence adduced on this point and although on future cases this Board will require much more evidence to be adduced before it on such matters, nevertheless what evidence there is before us, attests to the fact that Mr. Hopcraft was, over the six years he worked for this employer, a good and dedicated employee. Mr. Greene, in response to a question put by this Board, testified that while under his supervision, Mr. Hopcraft's performance was very good. Mr. Hopcraft himself testified that there had never been any complaints made of his, work by a member of super- vision. Further Mr. Hopcraft, from the evidence, appears to be an employee who is truly interested in and enjoys working with, the residents of the Centre. He testified, and in some respects this 14. was corroborated by Miss Daley, that he had arranged a special music or speech program in which, of his own volition and out of his own pocket, he had purchased certain tape recording and microphone equipment to use with the patients with whom he was working. Indeed from the evidence it appears he was actually working with the patients on the day in question with that equipment. Finally and from his experience in a number of volunteer progransnes prior to his coming to work for this,,ministry while simultaneously holding down a full time job, one must assume that Mr. Hopcraft has a real and sincere fnterest in worklngtwith persons suffering behavioural or other psychological problems. In part it is that sonclusion, that Mr. Hopcraft has by his performance and experience both before and after coming to the Huronia Regional Centre shown himself to be a person interested in and capable of working with such disturbed persons, that leads us to reject the employer's characterization of his activities on July 18, 1975 as an unproved and malicious attack on Mr. P. It is simply difficult for this Board to accept that conclusion in light of his past performance and experience. Further it is difficult for 'us to conceive of anyone, assuming them to be motivated by malicious and ulterior purposes to attack a patient in the circumstances which prevailed that afternoon in which four or five members of staff would necessarily be wftnesses to the attack. Surely if the grievor bore hostile intentions, the manifestation of that aggressiveness toward 15. this patient would have been carried out in a less obvious and open setting. Indeed had Mr. Hopcraft simply lost control of himself and engaged in a malicious assault on Mr. P. as the employer con- tended, it is much more likely that he would have made use of some object such as his fist rather than a fly swatter to effect that assault. In addition we have a serious division in the evidence as to whether Mr. Hopcraft voluntarily or under orders from Mr. Greene ceased his slapping of Hr. P. Given that there is simply nothing to choose between the evidence of Mr. Hopcraft and Miss Merza on the one hand and Mr. Greene and Miss Daley on the other, we must, given the burden of proof borne by the employer in such cases, conclude that the griever did in fact stop of his own volition. Such a conclusion necessarily supports his contention that he hit Mr. P. with the fly swatter for a specific purpose and having achieved that purpose when Mr. P. was secure on the couch, simply returned to his original position on the couch. Such a conclusion would also explain in part the reason why no other member of the staff, volunteer or professional, actually went to the assistance of Mr. P. It is true that by all accounts the entire incident was over in a matter of moments, but if the attack on Mr. P. was the malicious and unprovoked assault the employer has characterized it, it is simply inconceivable to this Board why no one even attempted to physically restrain..the grievor; why Mr. Hopcraft was allowed simply to return to his couch, where he remaindd~passively until the end of the shift; and why Mr. Greene finished paying the residents before even examining Mr. P. Given the complete passivity and apparent lack of outward concern 16. by the other staff, it seems most unlikely to this Board that Mr. Hopcraft simply lost control of himself and attacked the patient., Finally it must be recalled that with the exception of Miss Merza no one other than the grievor was able to trace Mr. P.'s activities prior to his having!been struck. Both Mr. Greene and Miss Daley stated that although they heard the first blows they could not unequivocally state that they had seen the first blows or the patient's activities prior to the attack. Indeed, it will be recalled that Mr. Greene did state that he noticed Mr. P. moving in much the same direction as that described by the griever. Only Miss Merza stated she saw the patient before the attack and actually saw the grievor initially strike Mr. P. while the latter was $itting "fiddling" on the couch. That of course directly conflicts with the grievor's evidence that he confronted the patient while the latter was walking toward another pati,ent and only after had he struck him did Mr. P. move over to the couch. This conflict has caused this Board some concern. If it could be affirmatively established that the patient had been sitting on the couch bothering no one prior to Mr. Hopcraft's striking him, that necessarily would lend credence to the theory of the case proposed by the Ministry. After some prolonged consideration of this matter the Board has come to the conclusion that it cannot accept Miss Merza's recollection that the patient was simply sitting on the couch doing nothing which would or should have attracted the attention of the staff. In the first place we have Mr. Greene's recollection that he in fact noticed the patient walking in the direction described by the grievor. Secondly we are of the view 17. that given Mr. Greene's assertion that this patient had difffculty .remaining in any position for longer than five seconds, it would have been extremely unlikely for Mr. P. to simply have sat on the couch for the entire duration of this incident. That is not to say however that Miss Merza or indeed the other.witnesses did not see the grievor strike this patient while the latter was sitting on .~ the couch. Rather, given the close proximity of that couch, to where the grievor said he intercepted the patient, it is entirely possible that he struck the patient both while standing and after he had directed him to the couch or indeed that he intercepted the patient where and for the reasons he said he did and only after physically causi,ng Mr. P. to move to the couch (a distance of some three or four feet) did he actually corenence to strike him with the fly swatter. In short we are of.the~view that standing alone, Miss Merza's recollection of the patient's activities prior to Mr. Hopcraft's striking of him simply is not consistent with the two other facts noted above and in any event still leaves unanswered the other questions that we have raised with respect to the grievor's past record and the activities of the other staff on the day in i question. In the result and after a searching and anxious consideration of all of the evidence we have come to the conclusion that the employer has not satisified this Board that Mr. Hopcraft's striking of Mr. P. was malicious and unprovoked. We characterize our analysis of the evidence as anxious advisedly. ,In the first place, and as we have noted above we share the employer's concern for the public i 18. custody it has of its residents and of the vigilance it must constantly exercise to ensure their well being. We recognize that if our con- clusion as to Mr. Hopcraft's motives for striking the patient are wrong we will have possibly prejudiced the interests of those resfdents if Mr. Hopcraft is incapable of correcting that kind of behaviour. However, and for the reasons we have given, we have come to the conclusion that on the evidence provided there is simply not sufficient evidence before this Board to accept the employer's characterization of the grievor's behaviour. Once having rejected that conclusion and to the contrary finding that the grievor was guilty, at worst of a lack of judgment in using the fly swatter to strike a patient, we must of necessity accept the pragmatic consequences of that finding and assume he is not a person who will be dangerous to the residents of the Huronfa Regional Centre. We are also anxious in our consideration of the evidence for the reason that the grievor appears to be a person who has some difficulty accepting valid and necessary employer policies and who attempts to deny or repudiate the consequences of his actions (such as the signing of Directive 17) on senseless and meaningless grounds. Such behaviour on the part of.the grievdr, although not directly connected with the inddent in question, must of necessity colour our evaluation of the evidence he gave and our determination as to what disciplinary penalty is appropriate in the circumstances. Further in characterizing the grlevor's striking of Mr. P. as an error in judgment and even if he was correct in assuming it likely Hr. P. would strike another patient, this Board wishes to impress on him the disapprobation with which we view that conduct. Although it follows 19. from what we have said.thati-.so characterized; we view his. conduct less seriously than if he had maliciously attacked the patient in question, nevertheless any strfking of a patient in such circumstances as those described by the grfevor, must, for the reasons given, not be tolerated or repeated. That is to say the striking of a patient in such circumstances as we have found to prevail on July 18th, 1975 and again even if the grievor's perception of the impending crisfs was accurate, must not be regarded as a trivial or technical violation of the employer's policies, but to the contrary must be deplored. Accordingly and notwithstanding the employment record of Mr. Hopcraft which, as we have noted, supports the conclusion that he is a conscientious and dedicated employee, we have come to the conclusion that a lengthy suspension of something in excess of ffve months duration. without pay and without accumulating any service credits is just and reasonable in the circumstances. Although we are of the view that the griever's mfsconduct as we have characterized it, merits such a lengthy suspension we believe that in all of the : circumstances, the dismissal of the grievor would be excessive. Need- less to say, if the grievor came before the Board again, under circum- stances similar to those which prevailed on July18, 1975 we would not likely be disposed again to interfere with any action taken by the employer. In the result this grievance must succeed in part. We would order the grievor to be reinstated to the position of Residential / _ I 20, Counsellor 2 in the Huronia Regional Centre as of Monday, December 29, but without compensation or the accumulation of service credits from July 23, 1975 until his reinstatement. Dated at Toronto this 23rd day of December 1975 b. M. Beatty Chairman I concu* J. W Henley Member I ccmcu* R Hennessy Member c ,’