HomeMy WebLinkAbout1985-0513.Daggitt.86-03-21 � OMTARtO � .
CROWN EAAPtCYEfS
GRIEVANCE
'SETTLEMENT
BOARD
160 ONUS STREET WEST. MRONM, 0WAA10. MSG IZS-SUITE 2100 rELEPHONE, 416/598-0688
513/85
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLE:IiENT BOARD
Between:, OPSEU (T. Daggitt) Grievor
and -
The Crown in Right of Ontario
(Ministry of Health) Employer
Before: R. J. Delisle - Vice-Chairman
F. Coll.om - Member
1 . Cowan - Member
For the Grievor : P . Sheppard
Barrister & Solicitor
For the Employer_ 3rs3Frri, Q:C.
Law Officer
Crown Law Office, Civil -
Ministry of the Attorney General
Hearings : November 20 , 1985
January 14 , 15 , 23 , 1986
DECISION
The griever was a Psychiatric Nursing Assistant 2 at
Kingston Psychiatric Hospital. He held that 'poWtion .far seine ,
sixteen years during which time evaluations were alwhys positive,
eg. see Exhibit 1, and no disciplinary prablems were presented.
His employment was terminated effective June 3O, ISSE for alleged
sexual misconduct with patients. The griever complains there was
no gust cause for his dismissal.
The letter notifying the griever of his termination, Exhibit
a, refers to a hearing on May 22 196Z where evidence was
presented by Mrs. M. K. Bennett, Director of Nursing Services, to
She the allegations of sexual misconduct. The letter, signed
:a
by R. B. Thomson, Hospital Administrator, reads:
I have thoroughly reviewed and weighed the
information . presented before me, , and find the
evidence compelling that you in fact did have
sexual relations with at least two of the
patients making the allegations. Ministry
Corporate policy and Procedure -2714 states
that dismissal is mandatory in cases of proven
patient abuse.
In fact, at the hearing referred to, the only evidence presented
by Mrs. Bennett was in the nature of summarizing her
investigations and reporting what others had told her. Drs.
Delva and Maley, ' staff psychiatrists, and Star, Asselstina,
Personnal Administrator, also attended the meeting and gave their,
informat i6n which again, was based on what other's had told them.
Neither of the two patients refereed to in the letter appeared it
that hearing. before this board one of the patients, Wnoa
Martin, testified but the ether, Mrs. W. did rot . r= iled with us
as Exhibit 6 was a letter from Mrs. W. to Dr. Delve., nee.
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psychiatrist, pleading to be excused from our hearing. Dr. Delva
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testified that indeed it would be very bad for her health to . come
to this hearing. She was not called by either party. Dr. Delva
testified that an her admission in January, 1985, Mrs. W. and her
husband made certain allegations concerning inappropeiate condoct
by the grievor with Mrs. W. some three years earlier when she was
then hospitalized. This board has great sympathy and concern for,
the well being of any . indiv-dual who right be called an to be a
witness before us. Nevertheless, fairness to the grievor demands
that we. not give any truth bearing quality to the allegations of
Mrs. Wtp as the grievor has no opportunity to challenge the
validity of the same. Accordingly the ,Justness of the dismissal
stands or galls on the allegations of Donna Martin.
Donna Martin was, at the material times, a patient onOarc
13 at the Kingston Psychiatric Hospital. The grievor was one of
the nursing assistants on the ward. Ward 13 is a lacked ward but
Donna Martin had privileges to go out on the grounds and also
into town when she requested.
The ward supervisor, vanne Cobey, testifies that Donna
Martin never complained to her about the grievor. She described
the griever as a good P. N. A. , a good role model to both patients
and to staff. She noted that patients sought him out and she hn'�
no concerns about him. The allegations erne as a ,templet, O?cr
to her.
Donna Martin, aged 22, .es: . .E_ : .at sne was
Kingston Psychiatric Hospital Christmas Day 1984. She wn
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depressed and had overdosed on medication. She had no job and no
place to live. She was on Ward 13 for five days and discharged
herself. . She came back in early January, 1982, being depressed.
and having overdosed on 222 tablets. Again she stayed five days.
During this stay she spoke with the grievar. She came back again
January 12 and stayed two weeks. She carne back the fourth time
February 2 and stayed until her discharge March 28. She
described .this as a pleak period ; she. was not working and had
recently broken up with her boyfriend.
Donna Martin described how her relationship with the grievor
began. -+He seemed a friendly sort, seemed to care, offered moral
encouragement. She' had numerous short conversations with him.
One night in February, in the early hours -she canuldn' t sleep.
She ' loft her room and asked the staff on duty, Clarence Lyons,
Carol McDonald and the griever, if she could sit in the piano
room.. The grfevorr opened the door for her and she spent three
hours there. The grievor carne in and ' they spent . an hour-and-a-
half in conversation. There was no physical contact. The next.
night, the same staff were on duty and she made a similar request
about 2:30 a. m. She testified the grievor- came into the piano,
room, there was conversation and also "hogging, necking and some
jetting. " During this time she said the door to the room was
partially open.
Donna martin knew that the gr'itvoc was a regular patran of
the Legion towntown, She asked him if he wal going to be t:^per,
Friday night , he said probably, and she asked if he "could speak
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to her there if she got a pass. The next evening she went too the
Leg the grie•vor wasn' t there and Oonna Martin left and went
to a friend' s house for the ni~yht. She phonel the griev,_r at his
home though she knew he was married. She went back to the
hospital the next day though she had a weekend pass and cLuld
have stayed out until Sunday. She testified that she was upset
and angry because the griever had failed to snow up. She said
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she told the nurse when she returned that she' d been "stood -I P" .
Donna Martin testified that on March 9 sne went out on ' the
grounds to help search for a missing patient. She was out with
the griever for about an hour in the afternoon and "a bit of
,a
necking went on for a few minutes. " Cn March 23 she was walking
by the sh'i're and saw . the griever sitting on a rock. She sat down
near hint, there was "some necking for five minutes before he; prat
his hands on ray head and forced me to have oral sex, he exposed
himself to me and I performed oral sex. ''
Donna Martin testified that shortly after the incident, or,
March 22 she told all that happened to Connie Wilton, a fellow
_agent. She did not tell anyone an the staff but later Connie
Wilton had got angry with her• about something and told staff what
Donna had said. Donna Martin fought with Connie Wilton over. her
"ep?rt :ng the incivant to staff and as a renvist Donna Nart in was
d. s=harisd fr:m the hospital that day, mancn Z8.
:Onna Vartin testified that after being discharged she
= IIIat .`.e ;P !nv _r at tte Legion, toln him nr at connik nsd
_md he told hen to deny it . She ;,."aaed tte wart, spoke with
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Wendy Harvey and denied the incident . Later, in April, she' d
been, adriitted to Kingston General Hospital following a drug
_,verd_.se,
and was, v i s i t ad by Mrs. F�er+r,et t ar�d St are Asse 1 st i r,e ar;,
she denied the allegations. She said she reversed her s r•y
about a month later and cor:firmed the truth of the allegatiCir+s.
She testified that " a '4f--,t people on the outside enc=_Lur,aged me to
tell the truth - that it was wrong to let hira get away with it. "
Dr. Maley was Donna Martin' s psychiatrist on each of her
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admissions. He described her as being of average to superi=ter
inte11 9ence, astute arid alert'. She was not easy to manage, not
interestee ' in ercgagingi in therapeutic care and not open to help.
She tended to give as little inforrmation as possible, never, spoke
to hied about any involvement with the griever but rioted that was
true to her fot-m. When asked on Cr_,SS-exar,I;nat ior, whether, she
was "manipulative" he testified "certainly she wc.uld seek to gain
the edge on anc-ther but we all do this. "
Clarence Lyons was a registered nurse on . Ward 13. He
testified that complaints by patients regarding staff were very
frequent. The types of complaint ranged fr_w physical abuse tC,
deprivation of smoking privileges. Complaints CLf sexual abuse
were not fr-e(;uerit but did ec+ar. S,.,roe c=_r,rp1aints were riot
c!�arted beca :se they were so frequent they became less
0e1 ievable. He' was ors duty ors the trv�., evenings that the griev,_r^
seer+t tame ire the piano room with D_nna Mar; in, or, the firs
ever,i ng t here were ether pat i ent s i n ar+d bl-:t Dri ' t`1Q sew. = r C
evening they were alc.ne f,_,r• a cc,uple of ho�.rs. Qn the second
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ever.; ng he walker by the piano r000 On three QccasiGr4 t•.
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routinely inely check an the patient , and saw no physical cont,act.
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They were seated in chairs, two or three feet apart, talk.ing.1 Cry
March 81 Donna Martin was very r.apset but didn' t wan;, to :t a PH.
ab%_%a:t it . Eventually, after questioning by Lyons, she %said
something had happened, she' d been a willing partner, and the
person was now ignoring her. She had hesitated when asked whether
it was staff, and later asked what would happen if it was staff.
This conversation was charted. On March 28 Donna Martin was
physically fighting with Connie Wilton because Connie had "told
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her secret. " Clarence Lyons asked Donna Martin whether , the
stories were true and Donna said that on both of the two nights
in the piano room and on _tether occasions she and the grieve}r !were
"Makin, out". Clarence Lyons asked her what she meant by that
and Donna said "screwing". He charted that conveesatioA by
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referring to allegations of "sexual relations an the ward aid on
other occasions. " Lyons spoke with Dr. Maley and ether staff
members about the matter but did not confront the grievor with
what had been said. Lyons testified that he now regrets that he
didn' t speak to the gr-iev%_r about it as " it could have prevented
this whole thing. " He described Donna Martin- as "a spoiled brat,
pair, in the butt , a person who was 1sing the system and ' :.new
Now to use the system. " He had "caked with the gr ievor ! for
sixteen, years sod had supery: se=' hire. AT described the yrIevor'
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as a ; od 9" i 1yee who d i d his ja= anC got c.. sng w _ h everyone. I
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+ Carol MacDonald, P. N. A. , spent three years ors Ward IZ. She
testified that she enjoyed working with the grievorr he ' had a
good way with the patients and he could quiet them down when they
were agitated. She was on duty on' the evenings when Donna Martin
used the piano roots. On one of the evenings can her Vounds she
saw them both, four to five feet apart. She testified that from
her experience with the -g"ievor there was nothing to suggest he
would ever become involved in a sex act with a patient;
Susan Foli•nsbee, registered nurse on hard 13, described the
disturbance on the ward, March 28, caused by the fighting
between Donna Martin and Connie Wilton. She testified that Donna
Martin asked her what would happen if a patient had been
assaulted by staff and she had advised that staff could lose his
job. She related that on the day Donna Martin was discharaed ' the
grievor phoned the ward to ask. whether allegations were being
made about himself and Donn!. When advised that was the case US
response was "Bu l l sh it ". Susan Fo l i r.sbee described Donna Martin
as a person of low self—esteem, seeking attention, immature and
having difficulty in coping with the responsibility of being an
adult. She said' the . gr•iev_sr seemed to care abut patients and .
Trent out of his way for them.
Stan Asselstir,e, testified that
Dcnna Martin initially denied the allegations when he ask.ec her
in April tut _:n May 12, I EE she phoned and asked him to come
c"e her. The nex : na/ "2h b! Qr ed Oot nwenyth in j iL tr've,
had sexual relzti ns w; th low Dagtg : tt ' . " 'I• ,, did not ask fon any
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details. Ir, J :1y he met with her again arid she described, a
r_rnar+tic ir,voIver,rent with the g+•iev_,r- which led sexual
inv_•Iverner,t. She described heavy petting or, the ward and c-n the
waterft•.=.r,t. She had described ar, inc:dar,t c-f farted -:,r•al sex. Or,
the waterfrw.nt. He warred her c,f the ser-ii:us consequences of her-
acci a5at :,_r, but she C�.�nfirmed :t as t.-%ze though she said she
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didn' t want t.: get hire into tr-ouble. Tn Asseistine' s view
Petting :.r fondling would call f.:,r• a penalty less than dismissal .
F,:-r dismissal "we' d need ,_ral sex, per,etrati :-r,, sornething of that
Sort. " He was asked why he didn' t call the pal ice and his
response was that he' d advised Donna Martin that if she warmed, to
pursue it she should get a lawyer.
Mrs. Bennett, Director, of Nursing, testified. She noted
t!- at complaints regarding patient atuse were n,;t c:oirn.,n belt
happened occasionally. She allowed that C-ccasionally a patient
w{siald sexually fantasize about a staff member,. She has known the
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y+•i v_,r ab_-ut ter, years and regarded him as a sat isf act 6ry
err{ ?r:yee. He was well liked by staff and patients and there was
thirig negative ir, the record intil 1355. Wher, n._-tified
March .::8 by Ms. Mys 1 i vecek, Nursing i ria t or, f v he
al legit i_orn respecting D-_nna Martin she ,_r•dered Ms. Mysl ivecek ' t
_riVC-Qt ��cte. The r'ep.=r•t was f-3r•thc.:.w:rig ,r, Apr. i 1a: C2nd
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C.:.r,s _ = . zd r,aIr,Ly z.f written stater,ier . s by staff rae,+,hers rr,c
,:Zt i$nt a aria S+.4r.troarl e5 =,f interviews. mr's. Bennett ;,ret w: tr t~e
evz _ r, '.,T'1 1s in C; 5~•E +vo5
r,vest 1 get ior,.. -hey r,let aga.r, !r, -pr,. ', .�.-4. !-`e griey.:r wa Y.tfe_
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to knovs what material she had. She read parts W it to him best
wouldn' t give him the material . The grievor said it was
"Bullshit ". At the hearing before Mr-. T hompsoy on May 22, Dr.
De 1 va, Dr. Maley, Mrs. Bennett and Mr. Asse 1 st i roe were present .
Mrs. G. Orr, a a.ani�_tr, representative was there with the grievor.
Mrs. Orr had earlier asked for the documents K Mrs. Bennett ' s
ppssession but had been decried. Mrs. Bennett was asked in cross-
axamination how the grievor or his representative were expectec`
to respond to documents they didn' t have by writers who were not
there; she replied " I guess they' re not, but I figured the
statements were sufficient. ''
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A procession of seven "character witnesses" were called ors
behalf of the grievor. These were registered courses anti
registered nursing assistants who had worked with the grievor for-
many . years and who had had dealings with Donna Martin. Their
evidence was all to the effect that the g&levor' s conduct with
patient, over long periods of time convinced there that the
-alleged incident did not occur. He was described as dependable,
caring, capable, cQmpassionate, a good communicator, ane a
professional. On the ether hand their evidence about Donna
Martin was also all one-way: manipulative, immature, attention-
seeking, a liar, Ubco perat ive, antr athrul , host i le, angry, and
: iffizuit . Examples of lies by Donna Martin were given.
Movie Friend, registered nurse on the ward described _n
-r=Ut l insh. 'p wet-con Vinn a Kart _ . ant Connie ; V ton. They wC'
"rivals, both wanted. to be head of the ward, bo th were interes st
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in =t`,er male patients, toey tr•:ec to ,utca each other .alt~
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stories of what they' d done. " Marie Fisner, registered nurse ,fir,
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the ward described that relat : :nshin -Donna was the somiClaot
pevs?n, tented to manipulate Connie, a secretive Palo, alloys
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whispering to each ether, they tried to s;,end most of their t 1roe
with males. ''
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The gr i evar test i f i eC. He is 4L years old, married and. the
`ather if twQ teen-aged boys who are enr_ . .ed at school . me
flatly denies any sexual involvement with Donna Martin. be
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terries any sexual relatiOnship with any patient . on the first
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evening Ain the piano room he testified they sat in chairs five
feet apart and talked. The door was open. Two patients came In
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and staff monitored the room. Cn the second evening they aga:r,
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talked of general things, the room was monitored by staff and. the
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door was always open. He testified there was no physical conj act
on either evening. He confirmed Conna Martin' s evidence about
toe possibility of Sheeting at the Legion, and was so concerriec
that she would phone him at home when he d:Cn' t show Yp that he
p!' oncd the hasp.ta : o'l!'e col,rr^.lc3.Y:en He maintains tner'e was Only
One occasion when he and Donna Navt _n were outside together r Ff
the An"d. On March 3 she had helper loo fo- a lost patient .; He
"aintairs others were out looking at We shore time. Con,tact w : ..
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_ nAo "'"•=,etin was ii111'.imal , and >are was no Dhys:ca. contact . in
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his explanation of
than satisfactory. . ', 40 cesc. ibet a .. 'r . y
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Second episode an March 23 where he "way" have seen Donna Martin
from a distance. on crass-examination he admits to his own
charting of an incident on March 22'' when, while walking along the
waterfront, he was "confronted" by a fewi le patient and "he 11
was said". He agreed, an cross-examination, that he' d told
another staff that day that Donna Martin had followed him when he
was outside and he accepted in his testimony that that was indeed
true.
The evidence has been set out in some detail. We are agreed
that - if what occurred on March 23 was as described by Donna
Martin di'missal was ,justified. if, on the other hand, the
gr i ev or' s story is to be accepted d i ssm i s sa 1 was not warranted.
But in this case it is not simply -a matter of deciding whose
version is to be accepted. ' The grievor was dismisseN. The
employer accepts the _gnus of justifying the same. What is the
extent of that On«s?. It is commonly said that the standard in a
civil case is something less than that in a criminal case; in the
former the trier of fact must be . satisfied on the balance . of
probabilities while in the latter he must be satisfied bey-Ind a
resonable doubt. In many cases however it is said that though
the matter- is civil in its nat-ure, if the plaintiff' s allegation
is Or,e 'Df a crime or serious mdsconduct - the Cegree _
. satisfaction is higher ; same say the trier requires "diem' ar;.t
convincinU pracV. Whatever the i oroulo, it is c:ezo that t&
Oelpee of s6t . sfac . ion r.t izn a trier 'WIA rEqVi "e +vii : :e_erz _
the relative serlr_+_I$ness of the consvgaences of the al lena lor.
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being foond true. As notes In a recnently quoted judgment �r
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'__ rC Denning, Dater v Eater x1950: Z All E. R. 458, 451 :
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The difference of _,pinion which has been �
evoked about the standard of proof in these '
cases may well turn amt to be more a matter of ;
words than anything else. it is trove that by
_ur law there is a higher standard of prof
in criminal Case's than in civil cases, beat I
this is subject to the quaaifi=ation that
there is no absolute standard in either case.
in criminal cases the charge rust be proved
beyond reasonable doubt , but there may be
degrees of proof within that s.anCard. Many
great Jodges have said that , in prcpartion as
the crime is enormous, so _light the proof to i
be clear. So also in civil cases. she case
may be . proved by a preponderance of ;
r Prc,babi 1 ity, but there may be degrees of I
tyrobability githin that standard. The degree
depends on the subject-matter. A civil Court, i
when considering a charge of fraud, will
naturally require a higher degree of
probability than that which it would require
if considering whether negligence were
established. It does not adept so high a
b?grea as a Criminal court, 2vev when it is �
considering a charge of a criminal nature, best
still it does require a degree of probability
which is commensurate with the occasion. "
:n this =ase the consequences of finding the allegations true. ave
heavy indeed bot we have an obligation of waking the fiO.S16G
should we be satisfied by the evidence.
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There are inconsistencies in the stories of bath D n~.2
Martin and the ;rlevc,r. Donna Martin' s first cesc"l Pt ion, Z
waff, Clarence Lyons, _s mar PeC .y jif4snent =w her pr2se' t
ast . . Qry. The yr iev=•r' s two :escr i t i _ ns a Moran 23 ax's '
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sotIsFactory. Each appear to have 'noti es for falsifying. DO
"Stories" or Seeking tv ''�Vt the ;V !&vOr' ".ecn ,se to % S
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with hint for failing t3 meet hen on the ontside. The grievor, of
course, has the r, of ive of saving his job. Workmates of ' tie
grievQr would be shocked if- the allegation were found tree tot
that , unfortunately, is often the case. People often act out if
character.
in astessing the evidence we have found a - recent on tan 10
Court of Appeal decision helpful. In R. v P. M. ( 19an C: C. A.
(mod) 311 the appellant had been found guilty of committing a
delinquency in that he did indecently ass,ault a female person.
The appellant was 14 years o4 age and the complainant 1,2. The
complain#nt described the appellant accosting her in the hall,
pushing her to the floor, placing his hand under her blouse and
placing his hand between her legs. The appellant denied he had
committed the acts - alleged and testified that he had merely
kissed her on the cheek. The trial, JMdge+ said :
But this bails down to a- matter. of credibility
because we have two stories that are quite
incompatible, irreconcilable. I t is a
question as to which one to believe because
EN ' s story is quite a bit different than
CK. Y. ] " s story.
The Court of Appeal .set aside the finding of delinquency and
ordered a new trial since they found the trial ,fudge :
. . . fell into error by considering that he was
confronted with a choice between, nel ievin; the
complainant and believing the appellant and
thereby failed z, renoire the pr oSecut ion t_,
prove the g+.tilt of the appellant boy and
beyons a reasonable d"Ubt .
Cmn Lam, see 1 w.ti e4'. .. '! R W85; w Z. R. wW 205 ...l. v. 0
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nur conclusion in his case is :'fat we C on' t know who, t =
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telieve. Giver) that result we must , :nd that Lie employer ; las
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not discharged the onus of satisfying VS that tr.e : ncler..
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occurred and the Cismissa'l accordingly joStif:ed.
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The grievance is allowed, the grievor is to to re: nst,ated
forthwith and is to de compensated Nr any earnir;s ar.d tens'" _ :-s
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lost 'leis any monies earned which he would not ctherw: se rave
gained. we will remain seized of the matter pending any
diffi=uit :es in assessing compensation.
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Dated at Kingston this 21ata day if -Xa-r--P-:s 1386.
R. J. Delisle , Vice-Cha_xVan
F. Colloir., Member
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