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HomeMy WebLinkAbout1984-1593.Landry-King.85-09-17IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (C. Landry-King) Grievor .-.-.-- - and.., ~~ __ ~-..__--__ _ The Crown in Right of Ontario (Ministry of Community and Social Services)~ ~- Employer Before: P. S. Knopf Vice-Chairman H. Simon Member 0. Gray Member Gowling d( Henderson Barristers & Solicitors For the Employer: C. H. Slater Solicitor Legal Services Ministry of Community and Social Services ! Hearings: June 6, 1985, August 6, 1985, August 7, 1985 This case involves the grievance over the dismissal of Cindy Landry-King from her employment as a Residential Counsellor at the Southwestern Regional Centre (hereinafter referred to as the Centre) located near Chatham, Ontario. The Centre is a facility for approximately 600 residents who have varying degrees of retardation and physical handicaps. The reason given by the Employer for the dismissal of the grievor was an alleged use of "physical abuse" of a patient and a lack of judgment in handling the particular situation. - At the outset, counsel for the grievor indicated that the grievor acknowledged that her conduct amounted to an application of force to a resident of a facility other than the "minimum force necessary~~foxs~e-lf_defence or the defenceofanother person or __~- ,. necessary to restrain the res.ident" within the meaning of Section 19.4 of the CrownEmploy@& 'Collective Bargafning Act.Thus, the grievor and the Union acknowledged to the Employer and the Board that this Board only had jurfsdiction to reinstate the 'griever to employment other than that involving direct responsibility for or contact with ~~ __- -~- -~ the residents of the facilimn the future. Se.dtiofi-19-(32-an.d--(4) provides: (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. 1974, c. 135, s.9, part. (4) Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facil$t;, (a) has applied force to a resident in the facility except the minimum force necessary for self- defence or the defence of another person or necessary to restrain the resident; or (b) has sexually molested a resident in the facility, the Grievance Settlement Board shall not provide for the employment of the employee in a position that in- volves direct responsibility for or that provides an opportunity for contact with residents in a ~facili.ty,- but the Board may provide for the employment of the employee in another substantially equivale,nt position.: Thus, with an admission that the grievor’s actions in this case amount to “excessive force” the only issue before the Board was whether the circumstances of the case warranted the exercise of our discretion to substitute a penalty other than discharge. The basic facts were never in dispute. The griever began work as- a Residential Counsellor at~.the..Ce_ntAi.n 1980. She worked for a short period of time but had to resign for health reasons. She t,hen resumed work as a Residential-Counsellor in 1981. Her probationary period ended~in October of 1983. She worked ,iontinuously thereafter until the time of her discharge. The duties of a residential counsellor are-basically to provide care and assist in the treatment .- - ~~_____-.- -~ ~~-_~_ of r’esident s. The grievor also acted as a “case manager” for certain patients. The case manager’s function is to act as an advoca.te ‘for the resident. A case manager is assigned to individual patients and provides personal assessments of their functioning level, co-ordinates with other professionals on the health care team, assistsin the prepararic and of a plan of care, ensures that the resiticn7.c’ needs .?re hejn_c mc acts asthe prina:-y contact with the family. A direct and jersonal f-b.. relationship is fostered and devel’oped between a case manager anti a resident. Since September of 1964 the _erievor xas the case manager for a resident who shall. be referred to in this award as S. - 3 - ..I&’ ..‘.I pi S is about 30 years old. He is five. foot=tall and weighs approximately 110 pounds. He is blind and “hearing impaired”. He is also profoundly retarded. He is known to have a tendency to .- -. ..~-~-._ _. “act out” by having tantrums when asked to doothings by staff members. He has been aggressive towards staff frequently by slapping, kicking, biting or pinching. He is typically at his worst behaviour when demands are being made upon him dealing with grooming, such as bathing or dressing. However, he is capable of dressing himself. He was described in testimony as “a handful” or “problematical” but certainly’not one of, the worst of the patients in his ward. On January lath, 1985thFievor was%orkin?i~%th~ two -. other staff members in their unit.‘- Shortly after 9:00 a.m. the grievor was distributing medications. The other two staff members’ were giving residents baths and assisting in their dressing. Cathy Lockyer. had bathed S and attempts were being made to have him dress himself. One BIG-- --~----of the objectives of.,.the i.nstitutionPi~sm to encourage-pstients to fkction ‘. to their fullest potential so t,hat extra efforts are made to have patients like S dress themselves rather than to simply dress :them. However, as mentioned above, S often .resists such efforts. This was particularly so on this day. Another staff member, Judy Seney had ~taken S into the “sink room” for dressing and on the griever’s request was tryinp to get S to dress himself. 0 But S was thro\iing his clothes around and laughing. The grievop+as in the xink room k.ith them at one point. IChile S &as being encou’raged to dress himself, he slapped the griever on the side of the head. She left him, Iloping that he would dress himself if ignored. When S continued this behaviour, a*. .- > - 4 - Miss Seney then left S on his own. But again, he failed to dress himself. Eventually, Miss Seney and,Miss Lockyer walked S into the day room. They sat him, naked, at a table where they were doing some of their own paperwork. Miss Lockyer tried again to have S dress himself but he continued to throw his clothes around the room. Heathen started pushing chairs around and pushing his’own chair around backwards, again acting out. When the grievor,entered the room.she first sat down at the same table as the,other two members of ,staff :$ and, S. But when S’s behaviour persisted, the grievor took S to another ~..,.,. I-- table by himse~lf and started to hand him his clothes, telling him to pout his clothes on. She was yelling at him. In fairness, the yelling must be accepted as partly required..because of S’s hearing .;, impairment and partly the result of the grievor’s exasperation and frustration at S’ and his behavi~our that-morning. .4ft~er -several repetition-s-of- handing S the clothessand~dhaving them-thrown--away, ; . : the whole thing came to a head when the grievor handed S his underwear and he then slapped her on the face, under the cheekbone. The grievor then slapped S ,and she kicked out. The only dispute over this episode centers on whether the grievor kicked S or whether the kick actually hit him. The gr lever testified that she kicked at the chair as a spontaneous reaction kith PT.. the slap and to “zet everything out pf the xay”. She denies actualI> kick,ing S or at his person. The two staff members, Miss Seney and Miss Lockyer who witnessed the incident and who testified for the employer saw the kick but could not say if it made contact. Dr. Thomas Manahan the clinical co-ordinator of the Centre also witnessed the incident. i ,$ , - 5 - He testified that he saw the grievor’s kick hit S in the abdomen area. We have no doubt that that is what he believed that he saw. However, based on the angle of view of all the witnesses and the totality of the evidence presented, we must conclude that the grievor’s kick did not hit S, but instead, hit his chair. Immediately after this, the grievor turned around to see Dr. Manahan standing there. He had witnessed the incident and she realized that right away. She said something to the effect that “Tom I’m sorry. He just made me so mad.” Dr. Manahan responded~, “Yes. I can see that.” Dr. Manahan then proceeded~ to talk to the other~staTf members about an entirely unrelated matter and, then left the-area; In the meant ime, the grieyor dressed S and took him to the TV room. During this time, he was acting in his usual fashion and there was no further -. incident. ; __ i -______ Dr:Manahan had gone to his supervisor after leaving the area to report the incident. It was then reported to the Centre’s Administrator. The Administrator instructed Dr. Manahan to suspend the griever, send her. home, have S examined for injury and have witness statements prepared by the two members of staff who had seen the e1’ent-E. So Dr. Manahan returned to the ward approximately i hour after the incident and carried out the Ad&istrator’s instructions. - 6 - The grievor’s explanation of the conduct is that it was completely out of character for her. She admits to have been bitten and pinched by S before. But she says that his slap on that date . . caught her off guard and that it “really hurt”. She said her slap and kick in response were immediate, spontaneous and surprised her more than anything else. She said she didn’t realize that she had done it until it was over. Dr. Manahan felt that her actions appeared deliberate because her hand was pulled quite back before it hit. In any event, the grievor herself admits that her actions were completely 4 inappropriate ,reactions to the incident. 1.: .-~__ The employer’s submissions stressed that the Mini.stry has a :. responsibility to ensure the protection of the residents in their care, especially because of the-residents’vulnerability and dependence. In this context, counsel for the Employer argued that the.grievor’s actions must be’accepted as being.deliberate and lacking in any z- .-__ justification.- The-Board-was-a-sked-to--view-her--acts- as deliberate patient abuse by striking and kicking at a patient as well as a display of “extremely poor judgment” in the handling of the patient. Her conduct was said to be particularly objectionable given that it should be seen to amount to a breach of trust in the position of case manager. Thus’, counsel for the Employer argued that the dismissai of the grievor was justified. py~. Counsel for the Union acknowledged the Ministr).‘s responsibilit to the patient. But he also stressed that the Ministry had a.responsi- bility to its employees who work in demanding and difficult institutions ~ like this Centre. Counsel argued that Section 19.4 recogni:es this dual responsibility by envisioning reinstatement even when there has - 7 - been excessive force. In the context of this case, it was submitted that the griever’s act of hitting S was merely an automatic and spontaneous surprise reaction to having been hurt ~by S’s slap to her face. It caused no injury or even apparent harm to S. While the wrong was admitted, we were asked to view this as a relatively minor incident of inappropriate behaviour. The griever’s immediate and sustained remorse over the incident and the fact that she faces the loss of her chosen careerwere all stressed as indicating that discharge is too severe a penalty under the circumstances. ,We we;e referred to the .previous Board cases of Samuel Johnson and the Crown in Right of Ontario, Boards-File 7/788Hnd Fole y-and. .tIie Crown in-Right of Ontario, Board File 99/79. DECISION This Board is mindful of the delicate and important responsibility that the Ministry and~its-employees share in caring ._ , for and protecting t-hrpytients whoresideat the Centre. These -- patients are afflicted with multiple handicaps and can neither protect nor defend themselves. This panel could not help but be impressed with the magnitude of dedication and skills that the staff are called upon to display in their professional roles at the Centre: In assessing the case at hand, the Board ic concerned about the iriterest? of the Centre, the j!Jg>istry, the griever, S, the other staff, other patients and the public,. Ali these interests have bea;-ins o?~: the ~determination of these incidents. - 8 - First, in characterizing the grievor’s conduct, the onl.y real factual question was whether Lt was deliberate and therefore malicious, or whether it was a spontaneous reaction. We have no doubt that the slap on the cheek could have appeared to be “deliberate” in that the arm was raised, the kick seemed gratuitous, and the grievor was-obviously frustrated and angry at the time. However, the demeanor of the grievor in her testimony and the totality of the evidence leads us to conclude that the griever’s reaction was spontaneous. Al though she was often hit or hurt by S,,his slap to her on this occasion caught .;; - her off guard and caused her sharp pain. She reacted immediately by -., :.. yi KECim back-and-we-accepttthat’it-.wasonly after. this that she -- -~ realized what she had done. Her remorse was instantaneous. Her regret has been continuous. Her act was completely oust of character for her. Her employment history has revealed no previous similar conduct and on the contrary,, indicates a good record of service. .:----.-- -- --?‘h~fore, we have a case of-a residential- counsellor who - slapped at a patient and kicked at his’chair in a spontaneous reaction to a hit she received from the patient following a period of frustrating behaviour. The grievor’s response was wrong and in no way can be condoned. She-herself admits that her conduct warrants discipline and :hat it brings her Kithin Section 19.4 of the Act as being an act of force other than the “minimum” necessary under the circumstance: Thus, the only discretion that thkBoa?-d has is whether is too severe under the circumstances. There is no jur i this Board to reinstate her to a position where she wou .1 contact with patients or have patients under her direct the discharge sdiction for d be in direct responsibility. ! ! : ..: - 7 - The interests of the patients and the public demand that all possible steps'be taken to ensure the highest degree of patient care and safety possible. The same interests demand that the best possible people be recruited and maintained in employment to care for the patients. Given the tremendous demands on the staff's patience and professional skills, allowances have to be made for the frailties.of human nature. Patients are entitled ~to be assured of safe and professional treatment, but the staff must also be confident that an isolated act of spontaneous misconduct on their part will be understood. In this case, the grievor's conduct has already.cost her dearly. Her chosen career was to be a direct patient counsellor. She trained two years at community college to this end. She persisted despite 'health problems to become a perm- anent employee at the Centre. She established a flawless work record,over a 3 or 4 year period but her single, spontaneous re- action to S's frustrating conduct has cost her that career. This alone must act as a huge penalty for the grievor and a profound example to other members of the staff. Added to this, ~the grievor hassuffered-the-economic penalty of losing employment income sinie January of 1985. Abusive force against patients must be.viewed very gravely. As seriously as we condemn the grievor's treatment of S here, we must also conclude that the grievor's misconduct here can only be assessed as relatively minor, if a comparison must be made. As mentioned above, S was not injyz+od, indeed he was not even hurt. There is no evidence that he was upset by the incident, although, this reaction is not that significant, given his condition. However, more than anything else, Dr. Manahan's response to the situation indicates that the incident must be treated as a minor one. Despite the fact that he witnessed and understood thg~events ,fully, he was willing to leave ._ ,-. ” .C,’ - 10 - S in the care of the grievor immediately after the incident. Indeed, S was left with her for the next half hour. Also, her two co-workers also were willing to leave S in her care. ~No one seemed to have any concern as to whether the. grievor could work properly with S after the incident. No medical inquiries were made upon S until half an hour aft,er the incident. All this leads to the inescapable concluSion that the incident itself was not so dangerous or serious as to lead any observer to believe that S was in any danger or jeopardy from the incident or future contact with ;he grievor. Section 19.4 retains jurisdiction for the Board to reinstate - .- -.. _ _ . _ an employee even if the employee has been found to have exercised excessive force. This jurisdiction is most appropriately exercised where the conduct is relatively minor, the record’of the grievor is otherwise good, there is acknowledgement of wrong doing and remorse. This is precisely the situation at hand. Therefore, we can conclude that the penalty of discharge was-.too,severe in all the circumstances-. of this case. Therefore, we are prepared to reinstate the grievor to employment in another substantially equivalent position other than one involving direct responsibility for or that provides an opportunity for contact with residents in a facility. The only other question that arises is that of compensation. Counsel for the Union asked.thatya~n!- alcard take into consideration 7 the fact that the griever’s position before the commencement of these proceedings was that she would accept reinstatement into a position other than involving direct patient contact. It was argued that the delay between the first and second days of hearing ought not to be the grievor's responsibility. Instead, the responsibility or the cost should be paid by the Employer because of its position at these proceedings and its insistence on testing facts that turned our not to be significantly in dispute. This panel wishes to express its deep concern over un- necessarily protracted hearings, especially in discharge cases. In retrospect it is easy to say that the factual and legal issues in this case ought only to have taken one day of hearing. But we recognize that such an assessment is difficult to make at thee beginning of a case, especially from the perspective of counsel for one party. Therefore, until the parties develop better trust or I a better type of discovery process, situations like'the one that ~~- __-- .-.- -.. _._ .._, occurred in this case will persist. However, we have taken these submissions into account to some extent in our remedial order. Having regard to the foregoing, we direct that thee grievor be immediately reinstated in employment in another substantially equivalent-position other than one involving direct responsibility~ for or that provides an opportunity for contact with residents.in a facility upon the receipt of this decision. The reinstatement is to be without back pay for the period of absence. There shall be no accrual of seniority from January 18th, 1985 until June 6th, 1985, that day being the first day of hearing of these proceedings. However, 1.~.. -.: .;. _ ,..i .‘L’ .:: - seniority shal 1 recommence to accrue as of June b’th, 1985. The Board remains seized with issues involving the implementation of this award should the parties require our further assistance. - 12 - DATED at Toronto this 17th day of September Ji.Lv4 c- , P- Knopf~, Vice-Chairman D. Grays?’ 1985. .