HomeMy WebLinkAbout1975-0007.Harris.75-12-19CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOARD
416/965/1410 Owen’s Park
Toronlo. Ontario
MIA125
IN THE MATTER OF AN ARBITRATION
: Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. T. W. Harris
(The Grievor)
And
The,Ministry of Community and Social Services
(Cedar Springs Psychiatric Hospital)
(The Employer)
Before: D. M. Beatty Chairman
G. K. Griffin Member
P. A. Sipurdson Member
For The Grievor
6. Bruce - Ontario Public Service Employees Union
For The Ministry
R. J. McCully - Counsel
Ministry of Community and Social Services
Hearino
Westbury Hotel, Toronto Ontario, December 11, 1975
Sutton Place Hotel,~Toronto Ontario, December 17, 1975
1.
Mr. T. W. Harris who, until August 27 of this year, was employed
as a Residential Counsellor 3 at the Cedar Sprinqs Psychiatric Hospital,
one of the facilities operated by the Ministry of Community and Social
Services, qrieves that he was dismissed without just cause and seeks, by
the grievance he has brought before this Board, to be reinstated with
full compensation and without the loss of any other benefits or service
credits. There being no dispute between the parties as to the
constitution of this Board, or as to its jurisdiction to hear this matter,
the Board proceeded to hear the evidence adduced by the parties over two
prolonged and protracted days of hearinqs with respect to the circumstances
surroundinq the alleged incident which precipitated Mr. Harris's discharge.
It is essentially the distillation of that evidence and the resolution
of certain fundamental conflicts inherent in it, rather than the
rationalization and application of any subtle principles oft relevant
jurisprudence which is the task confrontinp this Board and which will
prove determinative'of the grievance before us.
~'To put the grievance of Mr. Harris in its proper context much
evidence was adduced by the Ministry, which was substantially agreed
to by the grievor, as.to the pa~rticular context and environment in which
the alleged incident which precipitated Mr. Harris's discharge is said
to have occurred. It might be noted at the outset, although we shall
have more to say on this below, that well over half of the time which
was required to hear this grievance, was taken up with the testimony
given by witnesses describing the institutional backdrop to the alleged
incident which ultimately proved neither to be in dispute between the
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parties nor relevant to the grievor's defence to the charges made aaainst
him. Had the parties made the effort to seriously communicate with each
other prior to coming before this Board the issues between them could
have been precisely delineated and more narrowly circumscribed, so that
proceedings in this matterwould obviously have been expedited and the
time of this Roard and its members freed. to hear other matters which __
are outstanding before it.
In any event after all of this evidence was presented before the
Board and subjected to minute and detailed cross-examination, the following
facts appear to be beyond dispute. The gri~evor as noted is employed in
the Ministry's Cedar Springs Psychiatric Hospital as a Residential-
Counsellor 3 and more particularly on a ward known as Norfolk I North
which is part of the facilities' Activity Unit. He has in fact been
employed on that particular ward for a period of some three years. That
ward houses thirty five male residents who are cared for by a staff of
twelve, consisting of Mr. A. Neville, a Residential Counsellor 4, who
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is in charge of the ward, Messrs. T. Harris and Knox who are Residential
Counsellors 3, and who assume supervisory duties in Mr. Neville's absence,
( seven Residential Counsellors 2 and two Hospital Attendants. These latter
two positions were held by Mrs. P. Penoit and Mr. J. McGorman who claim
to have witnessed the incident 'on which the Ministry relies in its dismissal
of the ,grievor.
Of the thirty five residents living on Norfolk I North, there appears
to be a universal consensus of the staff who gave evidence to this Board
that a Mr. M., who the grievor is alleged to have abused on June 1, 1975,
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is, if not the most troublesome patient, certainly one of the most
difficult. More specifically, Mr. M., although chronologically being some
twenty-two years of age, weighing approximately 1513 pounds and standing ,
some five and a half feet high, in fact only possesses the mental comprehension
of a four year old chi1.d. He was described by the staff as being severely
retarded, capable of only the most limited and rudimentary form of ,,~
speech and suffering severe behavioural problems. Df particular concern
to the staff was the patient's proclivity to engage in self abusive
behavior such as banging his head, picking at his rectumunti?-.it bled,
aswell as kicking, striking or biting himself., In addition to this
self abusive behavior, although apparently of less immediate concern to
the hospital's staff, Mr. M. also manifested certain destructive and
aggressive behaviours such as the tearing of-his clothing, attempting
to break windows; slamming doors, as well as spitting, scratching, striking,
kicking and throwing objects at both the staff and other residents. It was
because of these behavioural problems and particularly the self abusive ones
that when Mr. M. was "conferenced" by the staff of Norfolk I North at his'
annual review on March 26, 1975, it was agreed by those present that
Mr. M. should be referred to.the Behaviour Modification Unit. That Unit,
as described by Dr. Higenbottam the Chief Psychologist of the Hospital,
is a physically distinct unit, capable of handling ten patients, which
is more intensively staffed so.ps to allow the unit to design particular
and specific programmes for its residents who have manifested severe
behavioural problems. It was to that Unit that Mr. M. was referred by
the Activity Unit and on April 1, 1975 was actually conferenced by
that Unit. At that second conference, attended primarily by the Staff
of the Pehaviour Modificationunit, together with some representatives
from Mr. M.'s own ward, it was decided that Mr. M. should be placed on a
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high priority list for admission to the Unit as soon as space was available.
However, apparently as a result of an increase in this patient's sel~f
abusive behaviour during the period April 5-7, Mr. M. was admitted to
the Rehaviour Modification Unit on April 7 on an emergency basis.
llpon his admission on April 7, 1975 Mr. L. Ball, a Psychometrist
who liased between the Psychology Department and the Activity Unit, with
the approval of Dr. Higenbottam, and after securing the necessary
parental consent, drew up a treatment programme (Exhibit 3) which had as
i its purpose the elimination of the self abusive, aggressive, destructive
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and non-compliant behaviour. The essence~of this treatment programme
called for the patient to "stand out" in a corner for five minutes whenever
he emitted aggressive behaviour and for the patient to%e ~subjected to
an aversive conditioner which emits an electrical shock for any self
abusive or non-compliant behaviour. This latter procedure was, according
to the treatment order always to be proceeded by the staff saying "No"
to the patient before the shock was actually applied. In addition,
the order stipulated that the shock was to be applied for two seconds
..i and'never to the head or torso of the patient. From all of the evidence,.as in a result of undergoing this treatment programne,in the Behaviour Modification
Unit, Mr. M.'s self abusive behaviour was substantially reduced although
the other behavioural problems continued to manifest themselves. AS a
result it was decided that Mr. M. could be returned on April 16 to
the more familiar surroundings of Norfolk I North where the psychology
treatment order of April 7 would be maintained.
From..the evidence of Mrs. M. Brooks, a Residential Counsellor 2,
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on Norfolk I North, Mr. Ball brought F?r. M. back to the ward on the
morning of April 16, together with the treatment order form and the
aversive conditioner. At this time, or shortly thereafter, and again
later that afternoon when the afternoon shift came to work, Mr. Ball
explained to the staff the contents of the treatment order form,
told them to read it and explained the method by which one was to
_., apply the aversive conditioner to Mr. M. From the evidence it appears
Mr. Ball specifically advised the staff that they were always to say
"No" to Mr. M. prior to giving him a shock with the aversive conditioner
for self abusive or non-compliant behaviour; that it was to be applied
for two seconds, to the arms and legs only, and never to the head or torso
of the patient. Finally,and so as to ensure that the staff were aware
of what the patient was being subjected to, each of the staff, (with
one or two exceptions being persons who did not want to use the conditioner)
was subjected to a shock. This whole training process apparently took
approximately half an hour. In much the same fashion Mr. Ball instructed
Mr. Neville later in the afternoon and Mr.. Neville in turn instructed
seve,ral persons on the staff of Norfolk I North, including the grievor,
who were absent from work on April 16. Following this instruction the
training order was placed, along with other similar,memoranda and orders,
onthe bulletin board in their staff office onthe ward.
From the~evidence of the staff and as corroborated by a log sheet
prepared by Mrs. Brooks, under instructions,from Mr. Ball, (Exhibit 8),
this maintenance programme was felt to be achieving the desired results
so that on May 12 a new treatment order was prepared for Mr. M..and
delivered to the staff on Norfolk I North. Essentially, and.as exhibited
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on the log form, it was because the frequency of the self abusive and
non-compliant behaviour was decreasing that Mr. Ball determined, in
conjunction with Mr. Neville, and with Dr. Higenhottam's approval to alter
the patient's treatment proprarnne. This new programme~which continued in
force from May 12, 1975 until June 9, 1975 differed from the initial one in
several important respects.Essentially the changes introduced at this time were
of a transi,tory nature.and anticipated that ultimately the patient would have
responded sufficiently so as to ultimately allow for the complete withdrawal of
the conditioner from the programme. At this interim stage however and in
anticipation of this ultimate goal, it was determined that the application
of the aversive conditioner was to be preceded in 'addition to saying "No"
to the patient, by a squirt of cold water in his face. 'Immediately after the
squirting of the water Mr. M. was to be given a shock; but now of one second
duration only.Further,following the application of the conditioner the patient
was to "stand out" in a corner for a period of two minutes.Apart from these
modifications it was also determined that Mr.M.was to-be given the.-water and
shock treatment for aggressive ,behaviour as well as for,under the proceeding
programme, self abusive or non-compliant behaviour. Although this
treatment order form was, on June 7, 1975 again modified so as to
eliminate all use of the aversive conditioner, it is a matter of record
that at the material time on June 1, 1975 when the alleged incident
is said to have occurred, the treatment order of May 12, 1975 was the
operative order. Further and although it appears from the evidence
that Mr. Ball did not specifically instruct the staff of Norfolk I
North as to the changes in Mr. M.'s progra.mne, it is clear from the
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evidence that this new treatment order was posted on the office bulletin
board and was read by all of the staff. That Mr. Harris himself was
aware of the new treatment order is confirmed by his own evidence and
by his notation on the log (Exhibit 8) that a new training order had
i been prescribed for this patient,.
_* It is against that setting that we may now turn to the alleged
incident of June 1, 1975 on which the employer relies in its dismissal
of Mr. Harris. In sharp contrast to the evidence described above, the
evidence with respect to the events which took place at approximately
7:20 a.m. on that day is anything but consistent. On the one hand the
Ministry called two persons, Mrs. P. Benoit'and Mr. J. McGorman, both
Hospital Attendants, who testified as to certain events which they claim
to have witnessed, while on the other hand we have the evidence of the
grievor himself who described a very different series of events. As
noted at the outset, it is the resolution of this sharply conflicting
evidence which will be determinative of the grievance before us.
According to Mrs. Benoit she was working the night shift from
11:30 p.m. until 7:30 a.m. on the day in question. She testified that
r as the day shift came to work at approximately 7:00 a.m. she was in the
process of preparing the standard night report for the shift she was
just completing. She stated that at approximately 7:OO~a.m. Mr. Harris
came into the office to commence work on the day shift. According to
her evidence, Mr. Harris was standing at the back of the office, near
..the refrigerator when,at about 7:20 a.m.,the patient, Mr. M., came in
from the dorm and threw his‘pyjama bottoms either into the office or
onto the office partition. -According to her, that in and of itself was
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not a particularly unusual event for this patient in that apparently
Mr. M. often did this to advise the staff that he wanted to be dressed.
Although Mr. Harris denied that this was normal behaviour for Mr. M., from
the evidence of the rest of the staff it does appear Mr. M. commonly
ripped off his night attire, especially if it had been torn or was wet.
In any event Mrs. Renoit testified that when Mr. M. threw his pyjama
bottoms into the office, Mr. Harris, without saying anything to Mr. M. or
to her, simply reached for the aversive conditioner and the water bottle.
Mr. M., apparently aware of the impending treatment, picked up his pyjamas
and ran back into the dorm to hits bed. Mrs. Benoit stated that havinp
never actually seen the aversive conditioner used on a patient (Mr. M.
beinq the only one on the ward to whom it was to be applied) decided to
follow Mr. Harris out to the dorm to witness its use and to see if she
could provide any assistance to Mr. Harris should that prove necessary.
She claimed that she stopped some ten feet from Mr. M.'s bed where she
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saw Mr; 'M. trying, unsuccessfully to pull up his pyjama bottoms. Mr.
M., accordinq to her, was standing on the east side of the bed, near
the north end and Mr. Harris was directly behind him. Accordinq to her
evidence Mr. Harris said "No M.", squirted him on the back with the
water and applied the aversive conditioner to his rectal area for,what
appeared to be about eight seconds as he bent over to pick up his pyjama
bottoms. She stated Mr. M. emitted a violent scream, stumbled to the
end of the bed, where the same sequence of events repeated itself a
second time and indeed again a third time when Mr. M. stumbled back up
the other side of the bed. Mrs. Reno~it testified that on both these
latter occasions Mr. M. was again futilely trying to pull up his pyjama
bottoms and., that she neither heard Mr. Harris speak to him nor saw
him, anoly the squirt of water prior to giving Mr. M. the shock. She
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estimated that the second of these shocks lasted'about three seconds,
the third about five seconds and that in both instances the aversive,-
.conditioner..was applied to the patient's rectal area as he was bent
over, struggling to pull up his pyjamas.
Mrs. Benoit testified that following the third application of
the conditioner, the patient was able to finally get his pyjama bottoms
on and that Mr. Harris then ordered him to stand in the corner of the
north west corner of the dorm. She claimed that Mr. M. ran over to the
corner with Mr. Harris chasing behind him. From her vantage point, and
from which she did not move, throughout the eight to ten minutes over
which this incident transpired, she was only able to see the upper
half of Mr. M. and Mr. Harris because a partition which juts out into
the dorm partially obstructed-her view. However, according to her
evidence shortly after Mr. M. and Mr. Harris reached the corner she heard
the.patient scream again and throw his hands up into the air. After
several more moments, Mrs. Renoit stated that Mr. Harris walked away
and that at that point she returned to the office. According to her
recollection, Mr. Harris folioned her into the office and while appearing
outwardly calm, stated to her, "One thing about it, M. sure doesn't like
it up the ass does he?" Mrs. Benoit stated that at that time, being
shocked and sickened by what she had witnessed, she simply signed her
report and left the office. She advised the Board that she was so upset
by what she had seen that she did not in fact sleep the rest of the day,
discussed the matter a day or so later with another Residential
Counsellor and ultimately advised her supervisor Mr. Neville of what
she had seen on June 9 when the latter returned from his vacation.
The evidence of Mr. McGorman, while in part corroborating that
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i given by Mrs. Benoit, actually was directed more to the blast incident
in the corner rather than to the sequence of events R-s. Benoit-had
witnessed in the office and at the patient's bed. Accordinq to his :
evidence he was in the clothing room', located squth of the staff office
at approximately 7:00 a.m. and was sorting the patients' clothing when
he heard a loud scream coming from the ward. Although he was not certain
whether he heard one long scream or a series of screams, he stated that
when he heard the screamin.g he isnnediately ran into the ward to determine
what the commotionwas all about. Although he must have run right past
Mrs. Penoit he could not specifically recall having actually seen her' I
although she previously testified that she had caught a glimpse of him
running up behind her. In any event, Mr. McGorman stated that he ran
up into the ward and stopped some thirty feet from the corner where
Mr. Harris and Mr. M. were standing and saw Mr. M. standing in the corner,
holding onto his pyjama bottoms, facing Mr. Harris. He testified that
from his vantage point it appeared that Mr. Harris-was directing
Mr. M. to face the corner and that as the latter did so his pyjama bottoms
aoain fell to the floor. He stated that as Mr. M. bent to pick up the
pyjamas he witnessed Mr. Harris apply the conditioner between Mr. M.'s
c buttocks for something between five and seven seconds. He stated that
shortly afterthe application of the shock and a$,fter Mr. M. had stood
in the ,corner Mr. H. turned and walked by him apparently heading for the
office. Mr. McGorman who also testified that 'he was shocked and appalled
by what he had witnessed testified that neither Mr. Harris nor he spoke
to each other at this point. Instead, after Mr. Harris left Mr. M. to
return to the office, Mr. McGormanstated that he watched Mr. M. run to
his bed and cover himself with the bedding. Mr. McGorman stated that
when he approached.Mr. M. to see if he could in any way assist him, the
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latter cowered under the bedding and indeed almost fell out of his bed.
Accordingly Mr. McGorman stated that he left Mr. M. in his bed, returned
to the clothing room to finish preparing the bundles of clothing for the
patients who were at this point beginning to arise. From his evidence
and indeed from Mrs. Benoit'.s and Harris's as well, it appears this
'entire incident lasted some eight to ten minutes commencing at about
__-, 7:20 a.m.
Although he continued to work with Mr. Harris for the rest of that
shift according to his evidence, which was confirmed by Mr. Harris,
nothing was said between them as to the incident described above. z.
Rather,at the end of the day Mr. M&n-man returned home and discussed
the matter with his mother and ultimately came to the conclusion that he
too was under an obligation to report what he had seen.to Mr. Neville
when the latter returned from vacation. There is no dispute, from the
evidence, that he did so on June 10, 1975. Finally it should be noted
that between~the date of .the'-alleged inci‘d&t and when he reported it
to Mr. Neville, Mr. McGorman testified that he did approach the grievor
on one occasion and said to him "Tom, the other day about you and Mr.
M . . . ' butMr. Harris simply walked away.
The grievor's evidence with respect to the events which transpired
between 7:20 - 7:30 a.m. on June 1, 1975 differs on almost all of the
material facts testified to by Mrs. Benoit and Mr. McGorman. He confirmed
that he arrived at the office at approximately 7:OO a.m. and that he first
read the ward report and was in the process of preparing,the residents'
medication over by the.refrigerator when the patient Mr. M. appeared at .,~
the office. He claimed however that in addition to throwing his night
gown (and not his pyjama bottoms as the other two witnesses claimed) he
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actually spat in his direction and as well had banged the doors separating
the ward from the office as he entered the office. Mr. Harris confirmed
that at this time nothing was said between himself and Mrs. Benoit and
that he simply picked up the conditioner and the water bottle and followed
the patient back into the ward, who he testified had at this point run
;--out of the office again banging the doors on his way out. However and
in contrast with Mrs. Benoit's evidence, he stated that he, and not
Mr. M., picked up the night gown and took it with him as he followed
Mr. 14. to the latter's bed. Further, he claimed-that as he came out
into the ward he could see the grievor ripping all of the bedding,
pillows and mattress off his bed and throwing them on to the floor.
Indeed Wr. Harris clajmed that as he arrived at Mr. M.'s bed the latter
was in the process of trying to actually tip over his bed. After subduing
Mr. M., Mr. Harris stated that he said "Ho" to the patient three times,
souirted him with water and applied a, shock to his wrist. At this time,
accordi.np to Mr. Harris, he and the patient were standing approximately
where Mrs. Benoit claimed she saw Mr. Harris apply the third shock.
However, and again in sharp conflict with the evidence of the other
two witnesses, Mr. Harris claimed that Mr. M. did,not scream or cry out
when he applied the aversive conditioner to his .wrist.
In any event, according to-Mr. Harris, after he had applied the
shock to Mr. M., he became compliant and put on his night gown. He
testified he then helped the patient fix up hisbed and ordered~him to
stand in the corner described above. Mr. Harris claimed however that
as Mr. E". ran to the corner he.againbegan to tear at his night gown.
Further, F:r. Harris stated that when he ordered Mr. M. to face the .--e I
corner the latter refused so that again, after telling him "No" three
times and squirting him with water, he applied the aversive conditioner
to the upper part of Mr. Mi's leg. Again Mr. Harris stated that Mr. M.
made no audible sound when the conditioner was applied, that he complied
with Mr. Harris's order after the treatment and that after standing in
the corner for two minutes obeyed his request to go and get dressed.
>'Mr. Harris confirmed that he saw Mr. McGorman and Mrs. Benoit at this
time as he returned to the office but denied ever having made the
statement attributed to him by Mrs. Benoit.
Indeed he also denied Mr. McGorman ever raised the matter with him,
but to the contrary claimed that the first occasion that'helearned of
the view the Ministry took of these events was on July 7 when he was called
before Mr. Wallace, the Unit Director; Mr. Kinzie, the Director of
Training: and Mr. Hatton, the Personnel Manager. At this meeting, called
apparently after Mr. Neville had completed his investigation of Mrs.
Renoit's and Mr. McGorman's allegations, Mr. Harris was simply advised
that he was alleged to have violated Personnel Directive 17. According,
to Mr. Harris, and this was not denied ty the Ministry, he was simply
asked whether he was guilty or not guilty and that the Hospital
Administrators would neither advise him as to the specifics of the al-
legations against him nor as to who had made the allegations. Indeed
according to Mr. Neville Mr. Wallace had specifically advised him, after
he had reported the results of his investigations to Mr. Wallace, that he
was not to discuss anything with respect to these matters with the grievor.
According to Mr. Harris, it was not until the next day, July 8, 1975,
that he was again summoned before the three administrators and advised
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of the specific charges against himy~although it was not until the
Ministry's hearing on July 24 that he first learned who his accusers
were and was able to present his version of the events.
The evidence which we have described above'crystallizes in a clear
and sharp focus, the task confronting this Board. On the one hand we
have the evidence of Mrs. Renoit and Mr. McGorman which depicts the qrievor,
to use Firs. Benoit's words, as having completely lostall self-control and
and as having intentionally harmed or abused Mr. M. It is we believe,
from all of the,evidence and in particular Or. Higenbottam's, beyond
dispute that if the grievor had applied the aversive conditioner in the
manner they described, the pain to Mr. M. would have been excruciating.
Given both the prolonged applications that they described and the very
sensitive area to which it was applied, we believe that if true, the
griever's conduct could only be characterized as abusive to, and
intentionally harmful of,Mr. M.'s person. One simply could not
characterize the application of the aversive conditioner in the manner
they described as being simply an error in judgement. To the contrary,
to apply the conditioner in response to a behaviour which, if Mrs.
Renoit is to be believed, consisted merely of throwing his pyjama.bottoms
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and which did not, accordinq to the treatment order form of May 12, call
for its use, for a period of time tie11 in excess of the time stipulated,
to an area to which it was not to be applied, and on four different
occasions within the space of ten minutes; can only be characterized,
to use the griever's own words, as a "sadistic" and malicious assault.
On the other hand we are faced with the griever's testimony which, if
believed, portrays him applying the aversive conditioner ontwo occasions
to parts of the body which fell within the purview of the treatment
order, for an acceptable period of time and for reasons; in the first
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instance, for spitting which could be characterized as aggressive
behaviour; and in the second, for refusing to comply with the order to
face the wall, which did call for the use of the conditioner. If then
one were to believe the prievor's version of the events, one would
necessarily exculpate him of any wrongdoing and he~would manifestly
..~ have a proper and valid claim to be reinstated to his position with full
compensation and other benefits.
The difficulty of our task in selecting which of these versions
more accurately portrays the events which actually'transpired on the
morning of June I, 1975 is compounded by the description made by all of
the witnesses as to Mr. Harris's character and past employment record. .
Very simply, against that evidence, including that testified to by Mrs.
Benoit and Mr. McGorman, the events they described as having transpired
on June 1, 1975 are completely out of character with,the grievor's past
record. That record depicts an employee who, over his thirteen years of
service with this Ministry, has worked his way up through the ranks,
enrolling in several in-house training programnes to up-grade his skills
and whose overall employment record was-described by his superiors as
presenting "an excellent model for all staff and admirable evidence of
the. depth of (his) concern for the residents - - -'I. Mrs. Benoit
herself described Mr. Harris as a ,man who cares about the patients and
Mr. McGorman described him as a friend. Indeed so exemplary does his
past record appear to be that Mr. Neville, his immediate superior,
testified that when first advised of the alleged incident on June 9
and 10 he simply didn't believe Mr. Harris could have done such a thing
Against that evidence and if'~we are to believe the testimony
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of Mrs. Benoit and Mr. McGorman it is simply impossible for this Board to
ascribe any motive or rationale for what the grievor is alleged to have
done to Mr. M. It would be as we have noted; completely out of character
with everything that was known abo'ut him by the staff who worked for and
with him. Nevertheless, and acknowledging that we are at a loss to
explain his behaviour, after a careful and thorough evaluation of the
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evidence we have come to the conclusion that Mr. Harris did in fact
wilfully abuse Mr. M. on the morning of June 1, 1975 in the manner
described by Mrs. Benoit and Mr. McGorman. Very,simply, and ultimately
our award is founded on this conclusion, we are of the view that Mrs.
Benoit and Mr. McGorman were honest and credible witnesses who were,
to the best of their ability, telling the truth. Necessarily and
following from that conclusion is our belief that Mr. Harris was not a
credible witness and did not accurately describe to this Board the events
that transpired on June.1, 1975.
There are a number of reasons why we have come to this conclusion.
In the first place, and most obviously, unlike the evidence of the
grievor which was entirely self serving, there is simply nothing before
this Board to challenqe the assertions of Mrs. Benoit and Mr. McGorman
that the reason wh.y they initially reported and ultimately testified to xi
the events of June 1, 1975 lay in their shock and horror at what they
had seen and in the moral obligation.they felt compelled them-to so act.
Although it is true that Personnel Directive 17 itself requires staff to
report such incidents, that does not in any sense derogate from their
testimony as to the effect the incident had on them personally and
their motives for reporting what they saw. Both witnesses and in
particular Mrs. Renoit obviously did not relish the role of.accuser into
which they were cast and neither of them had any apparent ulterior
motive in reportinqqthe events they described other than to ensure that
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such abusive treatment of a resident never happened again. In shdrt,
there being no evjdence before this Board and indeed there being no
suggestion made that these two employees had any reason to fabricate
what they had seen, we must accept their evidence on the material and
relevant points as accurately describing what in fact occurred.
Although it is true that certain portions of their evidence
appears to-~conflict with that given by the other, for example as to
whether any of the other residents were up and around the ward while
these events took place, and although,.given their admitted shock and
horror at what they saw, we find it difficult to believe that Mrs.
Benoit could have actually retained the presence of mind to count the
time the aversive conditioner was applied to Mr. M. Nevertheless,
on the material and crucial portions of their evidence, their testimony
was unshaken, entirely consistent with each other, and in all respects
more believable than that proferred by the grievor.. That is, if as we
have found, the grievor abused Mr. M. in the manner they described,~ we
are not surprised that they were both so preoccupied with the two
principal actors that they could not precisely recall what the other
residents were doing or that they could not with precision.describe what
the other of them did during this ten minute interval. These peripheral
and tangential matters aside, their evidence is as noted both consistent
with that given by the other and in all events morebelievable than that
testified to by the qrievor. Thus Mrs. Benoit's‘testimony as to the
three separate applications of the aversive conditioner to Mr. M.'s
rectal area for however long was unshaken in cross-examination; ---That it
elicited terrifying-screams from Mr. .M:, which was denied by the grievor,
is entirely consistent with and provides the only logical reason for
Mr. YcGorman's running out of the clothing room. Given the evidence
. .
18. I
of all of the other staff as to the effect the aversive conditioner
had on them when they were briefly subjected to it in their training
programme and even though Mr. McGorman could not recall the effect it
had on Mr. M. when some time earlier he had.~had occasion to use that
instrument, we think it inconceivable that the patient would not have
screamed when he was subjected to it. Further we find it incredible
__ that if, as Mr. Harris described, the patient had in fact Spat at him,
torn his bed apart and attempted to tip it over, that he would have said
nothing to either Mrs. Benoit as he initially left the office or to
Mr. Worman during the remainder of their shift. Rather, and even
excepting the comnent attributed to him by Mrs. Benoit, the fact .,
nothing was said about the incident is, we believe, much..more consistent
with everyone's awareness that the grievor had lost control and had
succumbed to gross excesses than with his assertion that Mr. M. had
displayed the kind.of destructive and aggressive behaviour that he at-
tributed to him. In such a context,and if one assumes Mr.,Harris had
;
maliciously abused Mr. M.,the ~failure of either Mr. McGorman or Mrs.
Benoit to challenge a superior member of staff is readily understandable.
If,to the contrary, Mr. M. had simply manifested one of his usual behaviours
which called for the use of the aversive conditioner, one would have expected,
at least when Mr. Harris returned to the office, some discussion of.that
behaviour to have followed.
There were, in addition, other portions of the grievor's evidence
which caused us some concern. In the first place, when challenged as to
the evidence he gave at the Ministry's hearing as to the reasons why he
used the aversive conditioner on Mr. M., and the number.of times he used
_.
19
it, which in all respects conflicted with the evidence he gave before
this Board, he advised this Board that at the outset of the Ministry's
hearing he informed the person designated by the Ministry to conduct
the hearing, prior to the commencement of the hearing, that he was heavily
sedated. Accordingly he.advised the Board that he could not recall what
,--he had said at the hearing. However, and sedated or not, Mr. Harris at
no time denied having made the statements attributed to him at that
earlier hearing and at no time suggested that the sedation he was under
would have induced him to falsely testify as to circumstances and events
which transpired on June 1. In the face of this prior and completely
contradictory testimony, the credibility of Mr. Harris must remain
severely undermined; further and as noted, the grievor was simply unable
to attribute any ulterior motives to or offer any rationale explanation
as to wh,y Mrs. Benoit and Mr. McGorman would come before this Board and
testif.y to events which he claimed did¬ happen. Indeed~, in denying
the truth of what they described, Mr. Harris, who if he were to be
believed was himself being grossly and maliciously maligned, appeared to
be so unemotional, polite and detached in his denial, that one must
f ., necessarily be suspect of that denial. Surely if Mr. Harris's testimony
as to the events of June 1, 1975 accurately and truthfully described what
actually.happened, and recognizing that his job and reputation stood in
serious jeopardy, he would have pleaded his case with the intensity and
emotion of a man who stood wrongly accused. Again the fact that he was
able to confront their evidence in such a dispassionate, calm and polite
manner must. of necessity increase the skepticism with which one considers
his evidence.
In addition there were a number of incidental and peripheral
{ matters in his evidence which caused this Board to consider his testimony
20.
with susoicion. Thus, for example, while in his evid.ence .in chief he
clearly and specifically described Mr. M. as slamming the door that led
into the office when he first threw his pyjamas, when he was confronted
in cross-examination with the fact that these doors were controlled by a
spring which would make it impossible for them to slam, he changed his
-I- story to state that he meant Mr. M. himself had physically banged the
door rather than the door itself banging shut. Further, in his evidence
in chief, Mr. Harris left the clear impression that he had initially used
the shock on Mr. M. because of the totality of the latter's conduct, in-
cluding throwing his night gown, spitting, tearing the bedding and the :
'mattress and attempting to turn over his bed. However when confronted
by this Board as to,the operative reason why he used the aversive con-
ditioner, he conceded that the act of spitting was the only behaviour
manifested by Mr. M. for which the conditioner could properly be used.
In sum and for all of these reasons we have preferred the evidence
of Mrs. Benoit and Mr. McGorman to that of the grievor. Atthe very
least we would find as a fact that Mr. Harris did on at least four
different occasions within the space of ten minutes use the aversive
conditioner in circumstances which did not call for its use; for a period
of time that at the very least was three or four times in excess of that
stipulated in the treatment order and to a part of the body which was
expressly forbidden by that order. So described Mr. Harris's conduct
can only be characterized as wilful patient abuse within the meaning
~of Personnel Directive 17, paragraph (M). It is simply impossible, if
one accepts the evidence of Mr. McGorman and Mrs. Benoit as to the
reasons for the manner in which, and the number of times the conditioner
21.
was used, to characterize his behaviour as other than sadistic and cruel.
As noted, he himself admitted that if proven, such would ba the only
characterization possible for that kind of behaviour;.
Against that finding, it is manifest that the Ministry had just
and reasonable grounds on which to dismiss Mr. Harris. As we have
_., written earlier of this Ministry's responsibility for the care and
custody of its residents:
This employer must of necessity take every precaution
and be uncompromisingly vigilant to en.sure that the
rights of those persons under its charge are at all
times safeguarded and secure. This Ministry in short
cannot relax its vigilance in ensuring that the type
of behaviour engaged in by this qrievor, for'whatever
reason, is not repeated.
Re - Hopcraft 4/75 at p.12.
Very simply, standing alone, we believe thatthe grievor's actions '
are so extremely grave, and the interests of the Ministry and its residents
so critically vital, that we cannot and shouldnot exercise our juris-
diction under S. 18(3) of the Crown Employees Collective Bargaining Act
and interfere with the sanction imposed. That conclusion is made man- "
: -
datory if, as we do, one bel.ieves that the grievor fabricated his
evidence before this Board as to what actually transpired on June 1,
1975. By exhibiting such disregard for the nature of these proceedinas,
Mr. Harris has compounded his transgressions and demonstrated such flaws
in his character as to make it impossible for this Board to conclude
that he.could be returned to the Minjstry and faIthfully serve the needs
and cares of its residents.
We must acknowledge that the effect of our'conclusion, which we
have reached without hesitation, is that for a few brief moments of
.
22.
aberrant behaviour, this man has destroyed thirteen years of dedicated
and superior service. That in and of itself must be regarded as a
tragic and senseless waste of his obvious talents. Given the serious-
ness of his actions on June 1, and his totally unacceptable behaviour in
fabricating his evidence before this t?oard, we have already noted that
no other scenario is realistic, feasible or desirable. Nevertheless,
~. given our comments in an earlier award, Re Maw's l/75, we wish to
advise the parties that the conclusion which was mandated in the circum-
stances of this case, need not have prevailed and might not prevail in
all future cases. Rather, had the grievor, instead of denying the events
which we have found to have occurred onJune 1, admitted those facts to
this Roard and come before us conceding that he had lost self-control
and had advised this Board as to circumstances or reasons which caused
him to act in a way which was totally outof character with his previous
thirteen years of employment at the hospital, we might well have as we
did in an earlier case, come to the conclusion that he could have returned
to the hospital without endangering the safety and welfare of its residents
(See Re Hopcraft (supra)). In such a case, this Board could properly have .
weighed his long and exemplary record with these residents as supporting
the conclusion that his actions of June 1, 1975 were a momentary aber-
ration, not likely to repeat themselves and to conclude that his continued
employment,.after some period of suspension, was compatible with the-safety
and well being of the residents. By choosing to come before this board
however and denying what we have found as a fact'to have occurred, he
has effectively foreclosed such a response being articulated by this
Before concluding thisaward, this Board must address itself to a
23.
,
number of peripheral and incidental matters which, though not material
to the resolution of this grievance, caused us great concern; In the
first place, as we have noted, much of the evidence adduced before this
Board concerned the nature of the Ministry's organization and method of
operation at the Cedar Springs facility and in particular the programming
that was initiated for the patient Mr. M. As wel.1 as the detailed ev-
_.~
~idence submitted by the Ministry on these matters, Mr. Bruce, on behalf
of the grievor, subjected that evidence to searching and minute cross-
examination. Two points must be made with respect to that part of the
proceedings. In the first place, we feel constrained to note, for the
record, our concern with the manner and methods by which the super-
vision and instruction of the staff were carried out on this ward par-
ticul~arly, although not exclusively with respect to the use of the
, 1 aversive conditioner. From Mr. Bruce's cross-examination of the
Ministry's witnesses on these matters, althoug~h ultimately proving not
to bematerial to the grievor's defense, it is apparent that the
Ministry's efforts in this regard are less than adeauate. Thirty minutes
of instruction on a device which most of the staff had never before seen,
let alone used, strikes this Board as completely unacceptable. The in-
adequacy of such instruction is compounded when one recalls that two
members of the staff,~~,Mrs. Benoit and Mr. McGorman, were Hospital
Attendants who presumably had little or no training as to approved methods
of patient care and treatment generally, 1,et alone as to the use of
this..~particular device. Indeed given their lack of experience and
training one may well ask whether they should ever have teen permitted ~
to use the aversive conditioner. if however for whatever reason, such
:.
24 . . .
persons would be required to use such instruments surely they should
have received much more careful~ and particular instruction as to its
use than the other more experienced and qualified members of the staff.
The inadequacy of such instruction manifested itself in the evidence in
several important respects. For example, while Mr. Ball categorically
stated he advised the staff only to apply the conditioner to the ex-
--,
tremities of Mr., M.'s limbs, all of the staff testified that Mr. Ball
simply said to apply it to the arms and legs and indeed some said to the
fleshy or fatty parts of the limbs. If the point of contact between the
patient and the conditioner is as critical as Mr. Ball and others would
have us believe, that fact should have been made perfectly clear to the
staff. Further from the evidence of Messrs. Ball, and Neville and Dr.
Higenbottam~ it is clear that the instructions given to staff as to
whether the conditioner was to be used for certain behaviour, such as
for spittinqi.or if the patient complied with the staff's instructions
.after the squirt of water, was open to several interpretations which
could easily have resulted in the use of the conditioner in circum-
stances in which it was not supposed to be used. That the supervisory-,-
staff simply was not terribly vigilant as to when and for what reasons
the conditioner was actually used is manifest from evidence elicited
from Dr. Higenbottam and Messrs. Ball and Neville in cross-examination
as to the checks made by them of the log sheet that was intended to
document the use of the conditioner. Further, and by way of added
illustration, it became apparent during the course of the evidence
that upon the release of Dr. Higenbottam's memorandum with respect to
the use of the aversive conditioner on May 21, 1975 (Exhibit 5), staff
could well have been confused by the inherent contradictions between
25.
it and the treatment order of May 12, 1975. In addition, and given
the unique and novel treatment that had been prescribed for this patient
to ensure that the non-professional staff on the ward fully knew of and
understood the terms'of the treatment and each of the changes made to
it, it would obviously have been preferable to ensure that these various
treatment rules were posted not only on the office bulletin board but on
-"the patient's own chart as well. Finally, and to confirm what we regard
as less than vigilant supervision of the staff, stands the evidence of
Mrs. Benoit, a Hospital Attendant who has not been exposed to any
I formal in-house training, that on the night in question she was advised
by her supervisor that should anything untoward happen that evening she
was'to look after it herself and not bother that supervisor.
We are not, in expressing hour concern over what we believe to be
serious gaps in the daily supervision of the staff'imputing any personal
blame to any of the supervisory or.administrative personnel of this
hospital. We simp?yare not possessed of any evidence that-would suggest
that this inadequate control and training of the staff results from some
dereliction of duty rather than being the result of a lack of available
staff or supervisors. Nevertheless it should be noted that whatever
the reason this Board is concerned,with these matters and that quite
apart from the interests of the patients, which obviously is of
paramount importance, such defi,~ciencies might well prove relevant in
future cases involving the dismissal of employees who failed to comply
with the expectations of their supervisors if those expectations were
not properly communicated, adequately supervised,or contained' inherent
contradictions.
_ A second point that must be made from all of the evidence adduced
/ ,.
26 .
as to the method of operations employed by this facility in general and
with respect to Mr. M. in particular is that, as noted, none of this
evidence ultimately seemed to be in dispute between the parties nor
was it even relevant, given the grievor's position, to the determination
of his grievance. Although our remarks might at first blush appear to
be gratuitous, this Board has a legitimate and necessary interest in
how cases are presented before it. Very simply by spending approx-
imately one and a half days hearing this evidence, quite apart from
involving everyone associated with the case including the members'of
this Board in no small amount of personal inconvenience, this Board has
been prevented from addressing itself to other urgent matters which are
presently'before it. In. such circumstances such presentation of
evidence is.unacceptable. This Board will in the future simply not
tolerate the failure of the parties to meet with each other, during
the grievan,ce,;:procedure or at the very least before the hearing,to
precisely delineate the issues that divide them and conversely to concede
those matters on which there is agreement or which are not determinative
of the specific grievance with which they are concerned. For this Board
to be able to discharge its statutory mandate, the parties should and
must, candidly and openly advise each oth~er as to thematters'in dispute
with resoect to any grievance so that the Board will not waste its time
idly listening to matters about which the' parties are agreed or which
are not relevant to the resolution of the grievance.
+c
Following from the above we also feel constrained to register our
strong disapproval with the methods by which the Ministry carried out its
investigation of this entire matter. As noted above, until the Ministry's
own hearing some seven weeks after the event, the grievor was not afforded
c any opportunity to present his side of the story nor necessarily did the
27.
Ministry have an opportunity to weigh it in considering the approoriate
action to be taken. Further Andy equally appalling to the Board was the
description by various witnesses of Mr. Ball.and Mr. Neville in a public
bar actually discussing the allegations that had been made against the
griever in a manner in which their conversations could be'overheard
by others in the tavern. Although there are no principles of natural
-'~.justice which would.be applicable to such early investigations by the
Ministry, commonsense and fairness expose the gross deficiencies in a
procedure which includes discussing the allegations made against a
member of its staff in a public house, forbidding the operative in-
vestigator from discussing the matter with the person whose conduct
is in issue and denying him, in the first instance, the reasons why
the Ministry has felt obliged to investigate him. Most obviously it
is only when the employer seeks within the confines of its own in-
stitutions to determine at the first opportunity all of the relevant
facts that one can ensure that potential grievances are resolved at
the earliest staoes and that nonmember of staff Will be put through
the~trauma of disciplinary or analogous proceedings. Although it is
true that an employee under the present procedure will have an op- I
portunity to present his or her case at the Hinistry's hearing,, only
if the employer seeks, at the first available opportunity., to discover
all of the relevant facts will possible injustices and prejudice that
can result between the time the disciplinary action is taken and the
hearing itself, be avoided. Only in such an environment will potential
grievances be resolved before positions harden and in a manner which
most expeditiously and fairly considers and resolves the reipective
interests of both of the parties. Investigating complaints and grievances
29.
In the result, and with reference to the particular qrievance
before us, we must, following our finding that Mr. Harris did physically
and intentionally abuse Vr. M., confirm the Ministry's discharge of
him. Accordingly this grievance must be denied.
Dated at Toronto this 19th day of December 1975
0. M. Beatty
Chairman
I concur
G. K. Griffin
Member '.
I axlC"I
P. A Sigurdson
Member
1 &, ?~ ,i’ : -
28.
in such a manner, in a spirit of honestly seeking to discover what
actually transpired, in a spirit of joint endeavour by the parties,
rather than in a discreet and furtive manner in which one builds one's
case without disclosing anything until the eleventh hour, will also
likely result in a more full, ,open and frank exchange between the
parties. One wonders,for example, what Mr. Harris's response would
have been had he been confronted, from the outset, with the allegations
and evidence that the Ministry had been apprised of from other members
of its staff. In such a process, seeking to resolve matters fairly
and~expeditiously to all concerned, rather than locking one's self
into and seeking to buttress a position which one feels constrained to
defend, Mr. Harris might well have admitted to the error of his ways
and apprised his superiors as to what induced-him to lose control on
the day in question. In sum,.and in light of our comments, we trust
that these and other parties will recognize the true value and purpose
of the pre-arbitration process to be a joint process of consultation, .r<.t .~
disclosure and compromise rather than some procedure by which one
secretly and furtively girds one's self with all of the armaments one
t
can master to defend what will have become rigid and intractable positions
by the time the parties come, before this Board or even the Ministry's own
hearing.
Our concluding comments notwithstanding we do not wish to leave
any impression that either Mrs. McCully or Mr. Bruce did not fully or
adequately defend the interests of their respective clients. To the
contrary, we would want to note for the record their thorough, pains-
taking and exhaustive efforts on behalf of their clients. In no sense
:.. ~.
could their efforts be described as other than tireless, most able and.
/ complete.
1