HomeMy WebLinkAbout1977-0135.Oldendorp.77-12-28135177
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CROWN EMPLOYEES 416/964 6426
GRIEVANCE SETTLEMENT
BOARU
Suite 405
77'BZoor Street West
TORONTO, Ortario
MSS lM2
Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
(Mr. Augustus Oldendorp) OPSEU
And
The Crown in Right of Ontario
(Ministry of Health)
G. W. Adams - Chairman
George Peckham - Member.
H. E. Weisbach - Member
For the Grievor:
Mr. Richard Nabi, Ontario Public
Service Employees Union
For the Employer: '
Mr. I. Freedman,
Counsel, Ministry of Health
Hearing:
December 13th, 1977
Suite 405
77 Bloor St. W.
Toronto, Ontario.
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This case involves the dismissal of an employee.and it was
presented in the most unusual way. Instead of each party calling
evidence with respect to the incident giving rise to the dismissal,
the parties agreed to a very brief statement of facts. The
statement reads:
December 13, 1977 ,
Ministry of Health 1
)~
V.
:
Brockville Psychiatric Hospital
OPSEU
Grievance of: Augustus Oldendorp
AGREED - UPON STATEMENT OF FACTS:
1. Griever was employed by Ministry for 11 years,
since 1966, in Psychiatric 'Hospitals es
an R.N.A.
2. This is the first time the Griever has been
involved in a matter concerning
patient abuse.
3. On September 20, 1977, at approximately 3:20 P.M.
the Griever assaulted a patient, (Mr. "G".)
by striking him twice on the face with
his fist, and then striking the patient's
head against the floor several times.
4. Neither the patient nor the Griever suffered
injury as a result of the incident.
5. Griever was suspended Sept. 22, 1977, and
dismissed Oct. 3, 1977.
(Signed)
. . . . . . . . . . . . . . . . . . . .
I. Freedman
(Signed)
. . . . . . . . . . . . . . . . . . . .
Richard Nabi
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AS is immediately evident, the statement is silent with respect
either to any facts giving rise to the assault'or to reasons that would
explain why the grievor, after eleven years of service in a
psychiatric hospital, would engage in such serious conduct. The
Board raised the absence of such details with the parties and was
advised the omission was deliberate. Counsel. for the employer
took the position that, given the peculiar nature of the particular
work setting involved in the instant case, such additional con-
siderations should be irrelevant. The Board was advised that the
employer took the position that it had to place the interests of
patients who are undergoing quite delicate psychiatric,therapy or
treatment, and who are very often defenseless to this kind of abuse,
ahead of an employee's claim for a second chance to conform to the
requirements of the work setting. Counsel emphasized that a
psychiatric hospital could not be analogized to~an industrial or,
commercial work place where in matters of discipline a corrective
and rehabilitative philosoply is paramount. He reasoned that the
employment relationship in a psychiatric hospital centred not on the
production of inanimate objects but rather centered on human beings who are
undergoing psychological and psychiatric treatment. Accordingly,it was
submitted that because patient abuse is so fundamentally in opposition to
the requirements of such a therapeutic setting the employer
is justified in adopting a policy of automatic dismissal regardless
of the surrounding circumstances and that this Board should so hold.
In effect, said counsel, "the value of curing the patient should,
in all cases, be more important than an individual's career".
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On behalf of the grievor, the union submitted that there is
nothing in the statement of facts to suggest that the'grievor would
engage in such conduct again or that he was beyond rehabilitation. It
was also argued that there is nothing to indicate that the assault was
premeditated and malicious. The union went on to submit that the Board
should not adopt the absolute rule of dismissal propounded by the employer
because the very;essenCe of this Board's function is to evaluate
all of the varied considerations that inevitably pertain to an
incident giving rise to discipline and to assess whether the penalty
imposed was just and reasonable in the circumstances. It was suggested
that ,the employer's policy discouraged employees from admitting the
truth or from coming forward with information relating to patient
abuse and, additionally., deprives a dismissed employee of the opportunity
to learn from his or her mistake. It was the union's view that a penalty
less severe than discharge would be a sufficient disciplinary response
to achieve the employer's end while at the same time maintaining the
employment of the grievor in this particular occupational role.
This issue is a particularly perplexing one. We are
confronted with three indisputably important interests that, in the
context of patient abuse, are difficult to harmonize. One interest,
emphasized by the employer, is the employer's responsibility to the
patient who is undergoing delicate treatment and who~is completely
under the control of the hospital staff. Patient abuse is clearly
and unequivocally inconsistent with this responsibility and thus
is clearly an interest worthy of emphasis. However the question
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is whether the automatic dismissal of an employee guilty of patient
abuse is a necessary response to achieve this end.
A second, and closely related interest, is that of the
patient as an individual. We agree that a psychiatric hospital is a
special work setting and the Board must be most vigilant to protect the
patient's interest when adjudicating in the penumbra cast by
the standard "just cause". Patients are under the care and
control of a hospital's staff and their welfare is dependent on
fhe.professional conduct of the staff. Accordingly the decision
making process of this Board must consider and accommodate this interest
and the union does not dispute this fact. However just what approach
to discipline would best achieve this important and accepted end is in
dispute between the parties. Is any automatic dismissal rule the only
way this interest can be protected ? The answer to. this question is not,
in our opinion, self evident.
The third interest is, of course, that of the employee or grievor.
As the-union noted, a decision to uphold a dismissal for patient abuse is
likely to bar the affected employee from employment in a psychiatric hospital
for the rest of his or her working life. And in any given case the par-
ticular circumstances may indicate that the employee is unlikely to engage
in such conduct again and thus there would be little or no risk to the
welfare of the patients in his or her reinstatement. But this
Board must also be sensitive of the,need to deterother employees
from engaging in patient abuse and in some circumstances the very
presence of an employee who has engaged in patient abuse may disrupt / I
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the therapy program of one or more patients. However the question
remains whether the interest of the offending employee must always be
put aside as the automatic dismissal rule requires.
In beginning to answer this question we would note that this is
not the first case to involve patient abuse - indeed it is not the
first case to consider patient abuse in the context of a psychiatric
hospital. In Harris and the Elinistry of Cormnunity and Social Services
7175 the grievor, an employee of some thirteen years' seniority with
the employer, conducted a "sadistic and malicious assault" on a patient
in a psychiatric hospital with an apparatus that gave an electric
shock. In upholding the penalty of dismissal the'Board emphasized the
interests of the Ministry and its residents and inserted the following
paragraph found in Re Hopcraft 4/75, which is another case involving
patient abuse but in which a dismissal was not upheld. In Hopcraft
the Board, at page 12, wrote:
This employer must of necessity take L
every precaution and be uncompromisingly
vigilant to ensure that the rights of
those persons under its charge are at
all times safeguarded and secure. Tl-Ls
Ministfy in short cannot relax its
vigilance in ensuring that the type
of behaviour engaged in by this
griever, for whatever reason is not
repeated.
A similar concern was expressed in Re Koch 2/75 where the penalty of
dismissal for patient abuse in the context ~of a psychiatric hospital was
upheld and the same quotation from Re Hopcraft was relied upon.
ttowevera reading of all three cases demonstrates that the Board
specifically refused to lay down the broad general rule requested by
the employer in this case. In upholding the dismissals in
Re Koch and Re Harris it is quite clear that the Board was in-
fluenced by the grievers'. lack of candour in giving testimony.
Indeed in each case this aspect of the grievors' testimony was a
strong indication that they were not suited to continued employment
in a sensitive work setting and that the Board could not be
confident that a similar incident would not occur again. Moreover
each incident was characterized as involving a "malicious" assault
unaccompanied by significant mitigating factors. Thus in Re Koch
the Board at page 9 made the following observation:
In the result, although in other contexts
this Board might well be prepared to allow en
employee the benefit of our doubt and to ',
assume he would respond to corrective
discipline, in the context in which Mr. Koch
was employed, we will only do so where we
are entirely satisfied that the interests of
the patients over whom this Ministry has
responsibility will not be jeopardized or
prejudiced. Put simply this Board ce~ not
end will not subsume the interests end well
being of those patients to the inteiests
of en employee whose potential for re-
habilitation this Board perceives to be
problematical et best.
The possibility of exercising its discretion in favour of a
person in the grievor's positionwas put even more explicitly in
Re Hopcraft~where the employer had promulgated a rule identical to
the one proposed in this case, Indeed in that case the Board decided,
in the final analysis, to reinstate the grievor. The rule read:
N) Striking of Patients: No patient
is to be~struck for any reason
whatsoever; approved methods of
necessary patient restraint
:’
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specifically exclude striking and
any other form of unnecessary
agression.
Any employee who
strikes, slaps or kicks a
patient will be dismissed.
In commenting on this rule the Board wrote:
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 ter-
mination of a member of staff
who transgresses its pro-
visions. Such inflexible
and rigid terms of employment
simply fly in the face of and
indeed subvert a myriad of
basic principles, long known
to the common law, which
would, if applicable, result
either in complete exoneration
of the employee or in the
_ amelioration of the seriousness
of the incident. That is to say
factors such as extreme pro-
vocation 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 un-
ilaterally foreclose to an employee
defenses which would otherwise be
available to him. Indeed Directive
17 itself explicitly recognises'the
impropriety and unreasonableness of
unilaterally promulgating a rigid
and immutable 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
circumstances.on this case. The
paragraph provides:
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It is important that penalties be appropriate and
related to the gravity of the offence. NO set of
instructions can cover every situation that may
conceivably arise, nor do they allow for mitigeting
circumstances which must be individually considered
when infractions occur. Similarly, disregarding
rules under particularly critical conditions may call
for a nwre severe penalty than would be the case in
another ~environment. Fair assessment of specific
cases must be the basis on which staff problems are
dealt with. However, it should be noted that dis-
,missal is mandatory in cases of proven patient
abuse, and criminal offences relating to the employee's
duties.
By its terms, that paragYaph recognizes a
difference between proven patient abuse,
which we would characterize the griever's
behaviour if we were to accept the employer's
contention as to the griever'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 be-
haviour if we accept the reasons he gave
for his conduct. Ifl short we believe that
a "fair assessment of spe~cific cases" and a
consideration of "mitigating ci.rcumstances"
necessarily requires this Board to determine
fin the case before us the precise reason or
cause for the grievor'.s actions.
Further even if we are wrong in our in-
terpretation of Directive 17 as supporting
the distinction we have drawn, we are of the
view that S. lS(3) of The Crown Employees
Collective Bargaining Act provides this Board
with the requisite mandate to draw such dis-
tinctions in determining the propriety of any
specific penalty imposed. S. 18(3) provides
this Board with an overriding and all-en-
compassing mendate to assess each sanction
imposed by the employer and to determine
whether, in all of the circumstances, it is
excessive. In making that determination in
the circumstances of this case we believe the
griever's state of mind, his wtivation, is
critical in assessing the justness and
.:
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reasonableness of the penalty imposed. To
put the nxztter 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 this
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 LUMBER 8 SAWMILL WORICERS'UNION LOCAL 2537,
& KVF CO. Ltd. (1965) 16 L.A.C. 73, 85-86
(Robinson) where it was stated:
I- Characteristics of Such Rule
I 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 inconsistent with the collective
agreement.
2. It must not be unreasonable.
3. It must 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.
IX - Effect of Such Rule re Discharge
1. If the breach of the rule is the foundation for the
discharge or an employee such rule is not binding
upon the board of arbitration dealing with the
pievance, except to the extent that the action of
the company in discharging the griever, finds accept-
ance in the view of the arbitration board as to what
is reasonable or just cause.
2.
3.
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In other words, the rule itself cannot determine
the issue facing an arbitration bodrd 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 pass upon the reasonableness
of the rule or upon other factors which may affect the
validity of the rule ,itself.
The rights of the employees under the collective agreement
cannot be impaired or diminished-by such a rule but only
by agreement of the parties.
In asserting this overriding jurisdiction of the Grievance
Settlement Board, we do not want to leave any doubt as to the
seriousness and gravity with which we.view the griewr'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
griever's behaviour, and even if one assumes his perception of an
impending crisis to have been accurate, he has conducted himself in
a manner which can only be characterized as intolerable, cannot be
condoned and for which he must suffer some disciplinary sanction.
This view was again emphasized in Re Harris 7/75. In that
case, as noted, the Board refused to reinstate the grievor but after
coming to that conclusion the Board went on to emphasize that the result
need not have prevailed. In this regard the Board wrote:
Nevertheless, given our comments in an earlier award,
Re Maw l/75, we wish to advise the parties that the con-
clusion which was mandated in the circumstances 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 on June 1, admitted
those facts to this Board and come before us conceding that he
had lost self-control and had advised this Board as to cirdum-
stances or reasons which caused him to act in a way which was
totally out of character with his previous thirteen years of
employme& 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 pe Hoocraft Isupra)). 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 aberration, not likely
to repeat themselves end 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 Board.
7 s
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In our view and as the union suggested, a review of the
circumstances surrounding the imposition of any discipline grieved
is the very essence of this Board's function under both the collective
agreement and Section 17(2)(c) of the~legislation. The policy
supporting this mandate and obligation of the Board was eloquently
expressed by Mr. Justice Laskin (as he then was) in R v drthurs,
Ex parte Port Arthur Shipbuilding Co. (1967) 62 DLR (2d) 342 (Ont.CAJ
where he wrote:
The collective agreement leaves the extent of
discipline (be it as light as a warning or as
heavy as discharge) at large under the formula
of "proper cause." By this I mean that there
are no fixed consequences for specified types
of misconduct . . ..The reason is simple: experience
has shown that there must be a pragmatic and not a
cut and dried; Medes and Persians approach to
discipline. Employers and unions are, in my
opinion, wise to leave room in collective agreement
administration (which includes arbitration) for
consideration of the worker as an individual,
and not as simply part,of an indistinguishable
mass. The formulae of "just cause" or "proper
cause" or "reasonable cause" or "just and proper
cause" which are found in collective agreements
join to the pragmatic case by case approach a
sensible individualization in the assessment
of punishment for misconduct.
The employer has not persuaded this Board that we should deviate
from this pragmatic case by case approach. No expert evidence was
adduced to establish that the very presence of the grievor would
disrupt the health or progress of one or more of the patients and
that this would be the case in all situations that may arise in the
future. Moreover we are not persuaded that the general deterrence
of other employees requires the severe penalty of dismissal in all
cases. The Chairman expressed himself on this point in relation to
.
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the serious offense of theft in an industrial relations conthxt in the
case Of me Phillips Cables Ltd. and Int'l Union of Electrical,
Radio and Machine Workers, Local 510 (1974). 6 L.A.C. l2d) 35.
In that case I noted that the general literature suggests that
it is not so much the severity of punishment that deters non-
conforming conduct aS much as the speed and certainty with which
'offenses are investigated and prosecuted..In this regard I noted:
While this board of arbitration understands the rationale
for such a broad standard of arbitral restraint, we cannot un-
hesitatingly subscribe to it. General deterrence is an extremely
important factor in these circumstances, but if it can be ob-
tained short of discharging anemployee, and if substantial
mitigating considerations are prekent, this board would prefer
a lesser penalty. And we are not alone in so holding. A number
of othei "honesty" cases, while admittedly in the minority,
outline circumstances where a board of arbitration was prepared
to substitute some lesser penalty for the initial discharge
imposed, See Regina v. McCulloch et al Ex p. Dowty Equipment
of Canada Ltd. (1969), CLLC 14,174 (0nt.H.C.); Re U.A.W., Local
200, and Ford Motor CO. Of Canada Ltd. (19701, 22 L.A.C. 35
(Weatherill); Re V.S.W., Local 3257 and The Steel Equipment Co.
Ltd. (19641, 14 L.A.C. 356 (Reville); Re U.A.W., Local 127, and
Ontario Steel Products Ltd. (1962), 13 L.A.C. 197) (Beardall);
Re V.A.W., Local 28, and~C.C.M. Co. (19541, 5 L.A.C. 1883
(Anderson). In fact, in the Ontario Steel Products Ltd. case,
supra, the chairman articulated an arbitral standard that is in
marked contrast to the Evans Lumber holding. He wrote (at p.199):
"If there is any reasonable doubt as to the adequacy of the
punishment, I think that the griever should be given the benefit
of such doubt".
As well, this chairman has come across a recent Americans
arbitration award in which a prominent arbitrator in that jurisdiction
had occasion to review the problems of special and general deterrence
in the falsification cases. See Cutler-Harmner Inc. (1972), 59 L.A.
,106l (Sembower). In reinstating an employee with 35 years' seniority
who had falsely reported his production on 21 other occasions, he
stated (at p. 1066):
C...respondiny to the fear that reinstatement would lead to a
demoralization of the incentive plan>. However, certainly this
need not be the case at all. After all, this grievant has at
this writing lost about nine months of employment with this
Company, and a nine months suspension certainly is not incon-
sequential. Besides, in the recent national debates over the
death penalty which the U.S. Supreme Court took note of in
l .
,i /
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its recent decisions barring those penalties in many
instances, it was pointed out generally t.\at the
severity of a penalty seems to have little deterrent
effect. Instead it is the swiftness and certainty
of.thk punishment which discourages people from
trying to commit such infractions.
He went .on to.find that a deterrent effect had been.achieved, leaving
the question of whether or not a valuable employee could be SalVaged.
The Cutler-Hammer Inc. decision is therefore important becaus$ of the
way it recognizes both the need for general deterrence in this area
and the futility of excessive penalties in achieving that end.
The dishonesty that confronts this board is certainly cause for
diskssal. But the board must not fail to. consider whether it would
Se just and reasonable in all the circumstances to substitute some
other penalty -- particularly in light of the Cutler-Hammer.rationale
and in light of any other mitigating circumstances that might exist.
Accordingly, as a general matter - and this is the way it was
put before us - we are not at all convinced the penalty of automatic
dismissal is the only or even most effective way to achieve the
employer's interests in general and specific deterrence in all cases.
Therefore we decline to rule that both the patient's and employer's
interests require, in every case, the termination of an employee who has
engaged in patient abuse,
However, because the parties presented this case in the way
that they did, the Board is in a very difficult position with respect
to a final and satisfactory disposition of the grievance. As our
reasoning above explains, we feel obligated to consider the details
surrounding the dismissal or discipline of an employee and yet the
parties have not provided us, with this essential background. All
we have to go on is the seniority of the employee which is substantial;
the important fact that he has not engaged in such conduct before; and
the fact that neither the patient nor the grievor
suffered injury,as a
.f
*~
0
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result of the incident. When the Board asked the employer's counsel
for his position assuming the Board declined to adopt the principle
of automatic dismissal, the Board was adv.ised that there was no
alternative position and that if the employer's position was not upheld
it would have to seek relief elsewhere.
The legal onus of proof in discipline matters resides with the
employer who has initiated the discipline and who, therefore; best ap-
preciates the reasons for the disciplinary action taken. On the other
hand, it is usually incumbent on the grievor and union to adduce evidence
pertaining to factors that go,to the mitigation of the penalty imposed.
Unfortunately the stipulation of facts is deficient in both regards.
For example we have no evidence before us that permits us to characterize
the assault as malicious and unprovoked as existed in the Koch and Harris
cases. Similarly, we have little evidence that conveys the duration or
intensity of the assault. As well, we have been deprived of an opportunity
to observe the demeanour of the grievor and to hear, in his own words, the
factors and surrounding circumstances that gave.rise to the incident or
that at least form the background to the assault.
Had this variety of evidence been adduced the dismissal might
have been upheld, or if not upheld the Board would be in a position to
consider whether a lengthy suspension should be imposed, Indeed we must
remark that decision of the parties to proceed in the way they did
seems, at least with hindsight, somewhat reckless. Given the earlier
decisions of the Board, this employer could reasonably have anticipated
the instant decision and should have, we suggest, conducted its case
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accordingly. Similarly, the union must have realized the importance
of the background considerations to the grievor's case and that the
responsibility to adduce such evidence lies with it.
On balance however, the Board has come to the conclusion that
on the stipulated facts the grievor's conduct merited severe discipline
but, without specific evidence pertaining to all. the surrounding circum-
stances discussed above, we are not satisfied that dismissal was the
only response open to the employer. The grievor is a long service
employee who has never before engaged in such conduct and there is no
evidence before us that his presence in the work place wi71 disrupt the
treatment programme of any of the patients. On the other hand there is
no evidence before us to support the union's request for a one month
suspension. Indeed with more evidence we might have imposed a suspension
of six months or more. However in the circumstances we direct that the
grievor be immediately reinstated but without any compensation and without
the accumulation of service credits for the period he has been absent from
work.
Dated at Toronto this 28th day of December 1977.
G:W. Adams, Chairman
(I concur)
George Peckham; Member
(I concur)
H. E. Weisbach, Member