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HomeMy WebLinkAbout1985-0888.McGowan.87-02-24BETWREN: BEFORE: IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACI Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Jim McGowan) - And - Griever, The Crown in Right of Ontario (Ministry of Community and Social Services) Employer. P.M. Draper Vice-Chairman I. Freedman Member D.B. Middleton Member FOR THE GRIEVOR: P. Cavalluzzo, Counsel Cavalluzzo, Hayes and Lennon Barristers and Solicitors FOR THE EMPLOYER: M. Alchuk Barrister and Solicitor Ministry of Community and Social Services HEARING DATES: July 9, 1986 September 16, 1986 October 16, 1986 October 28, 1986 October 29, 1986 0888/85 DECISION . The Griever, James McGowan, grieves that on August 1, 1985, he was unjustly dismissed from his position as Residential Counsellor 2 (R.C.2.) at .Huronia Regional Centre, a facility for the developmentally handi- capped in Orillia. He requests reinstatement as of that date and restoration of lost salary and benefits. The Administrator of Huronia, Donald Cornish, notified the Griever by letter dated August 1, 1985, that he was being suspended during the investigation of an allegation that on July 30, 1985, he had “acted inappropriately in relation to your responsibilities.” By letter dated August 23, 1985, Cornish notified the Griever that he was being dismissed as of August 1, 1985. The text of that letter reads: You were suspended on August 1, 1985 pending an investigation into allegations of resident abuse against you. The investigation has revealed that you used exces- sive force in dealing with resident (R) on July 30, 1985; that you had previously used excessive force in dealing with that same resident in early summer 1985 and that you also used excessive force in dealing with resident (S) in July 1985, contrary to the Ministry’s Standards of Conduct and guidelines. I have reviewed your record of employment and it reveals that you used excessive force in dealing with resident (M) on August 19, 1984 and that you subse- quently participated in a training program for “Man- agement of Disturbed Behaviour”. As part of that program you also reviewed our Standards of Conduct and disciplinary guidelines (P.E. 0505-02). The use of excessive force towards residents is unacceptable. and constitutes abuse. I am therefore dismissing you from your employment as a residential COUllSellOr, effective $ugust 1, 1985. . ..I2 . . . . . At this point it is convenient to ,dispose of two matters raised in the letter of dismissal. ’ During the course of the hearing the Employer withdrew the allegation relating to S. As for’the incident involving M, the record shows that.the Griever was initially suspended as a result of a” allegation that he had “acted inappropriately.” Following a” investigation, which included a lengthy report supporting the Griever’s actions written by Whitney Mousseau, a” R.C. who had witnessed the incident, Cornish wrote a letter to the Griever dated August 29, 1984, in which, although he maintained that the Griever had used excessive force to control the disturbed and aggressive M, he nevertheless, withdrew the suspension, citing extenuating circumstances. The letter went on to state: I am advising Mr. Hadley, Service Manager, C-2, that as soo” as possible you are to be enrolled in the training program for the Management of Disturbed Behaviour and staff on duty in Cafeteria B are to be instructed not only to call for help when in a similar situation, but also to go to the assistance of other staff attempting to restrain an aggressive risident. It is our opinio” that, in the circumstances, the letter does not qualify a5 a disciplinary reprimand and that arranging for the Griever to be enrolled in a training program which, we are told, is routinely taken by ‘(I R.C. ‘s does not amount to disciplinary action. We find that there is not a prior.instance of discipline on which the Employer may rely in the present proceedings. . . . . . At the time of the Griever’s dismissal he was xssigned to C3, a ward the” a~ commodatiny thirty-three adult males requiring different levels of . ..I3 - 13 - supervision, ,most with behavioural problems and some with hostile or destructive or aggressive propensities. Assaults between C3 residents occur on average about twice a month and black eyes are sometimes the result. Among the residents of C3 at the material time was R, who has been at Huronia since he was committed in 1953 at the age of seven. Dr. Elsie Crawford, .Director’of Medical Services at Huronia, testified that he has a range of intelligence in the low fifties, which is considered as moderate mental retardation. He is not medically classified as self-abu- sive but does have temper tantrums. His speech is slow but understand- able and his vision is good although he is slightly short-sighted. In 19~77 he was diagnosed as having Prader-Willi syndrome. Dr. Joseph Berg, Director, Genetic Services, Surrey Place Centre, testified that Prader- -Willi syndrome is a concurrence of physical and mental abnormalities characterized, in particular, by hyperphagia, an uncontrollable need of food. It is incurable and is treated by medication and a dietary regimen. We heard considerable testimony from various Huronia staff members to the effect that R has a propensity to steal food, cigarettes and money, of which ~there were eight instances in 1985, to lie about it when accused and to admit it only after much urging; that he has been seen to pick at or scratch or strike himself, though not so as to cause real injury; that of the six levels of supervision of residents in effect, Level 1 being the most required and Level 6 being the least, R is at Level 3; and that work has been found for him at a plant i” Orillia as part of a Vocational Service Frogram. The excessive force alleged in the letter of dismissal to have been used by the Griever against R on July 30, 1985, is said to have caused a black eye. That allegedly used against R on the earlier occasion is said to have caused a bloody nose. As part of the standard procedure in ca5es of susp’ected abuse of residents the police were informed of the incident of July 30th. The Griever was ch.irged with assault, was tried and acquitted. . ..I4 - 4 . . . . . The competency of R to. testify is not Bt issue here and we are told that his testimony was received in the criminal proceedings taken against the Griever . His testimony before the Board was generally relevant and consistent and was given in an acceptably lucid and direct way. We see “0 reason to question his credibility on the basis of his mental handicap. . . . . . What is to be determined by the Board in discipline and dismissal cases is simpl’y the question whether or not, on the evidence, the Employer had just cause to discipline or to dismiss. Also to be resolved, where just cause is proven, is the related question whether or not the penalty imposed is just and reasonable in all the circumstances. In discipline and dismissal cases the applicable standard of proof is the civil burden - the balance of probabilities. We concur, however, with the opinion expressed in Leering, 1401/84, to the effect that where discipline ,or ‘dismissal is based on an allegation of misconduct of a criminal nature, a higher degree of probability than would otherwise obtain should be shown. It remains true, nevertheless, that the nature and purpose of these a proceedings are not those of a criminal prosecution. We are not adjudicating a criminal charge or contemplating punishment for a crime. The exercise, throughout, is a civil, not a criminal one. . . . . . While being questioned on July 315t about the incident of July 30th, R brought up for the first time an incident of some two months earlier in which the Griever allegedly -truck him. In his testimony R was unable to . ..I5 . -5- fix the date of the incident but thought it might have been in late day and recalled that it occurred in the dining room at supper time on a Sunday. He believes that the Griever thought he was stealing some peaches. The Griever yelled at him and punched him once, causing his nose to bleed on the pyjamas he was wearing. There were “lots” of residents and staff members present. He made no complaint about the incident. Donald Mungham and Brenda Paddison, both R.C.Z’s, who were among several persons named by R as having knowledge of the incident, were called to testify on behalf of the Griever and stated that they did not recall any such occurrence. The Griever denies that the incident described by R took place and testified that the reference in the letter of dismissal to an incident “in early summer 1985” was the first notice to him of a second allegation against him involving R. It appears that the Griever was not interviewed by the committee investigating his conduct or invited to respond to its findings and that only the allegation regarding the July 30th incident was presented to him at the disciplinary meeting that preceded his dismissal. We have some doubt as to the thoroughness of the investigation of the earlier incident inasmuch as Cornish, who headed it, could not recall if two staff members named by R as having seen the blood on his pyjamas had been interviewed. we note, as well, that the Employer did not call to testify any person who might have been a witness to the incident. As a consequence, there is no independent evidence before us supporting this allegation against the n Griever. Taking into account all of the facts and circumstances surrounding the incident described by R, we find that the Employer has failed to discharge the onus of proving, on the balance of probabilities and considering the serious nature of the alleged misconduct, that in fact the Griever applied force to R on the occasion in question. Accordingly, we will not take notice of that allegation in determining I the issue of just cause for the dismissal of the Griever. . ..I6 I -6. . . . . . 0” July 30, 1985, all *but eight of the residents of C3 were taken on a bus trip and picnic which kept them and the escorting staff members away from the facility betwen 9:00 a.m. and 3:00 p.m. Mungham was in charge of the trip and did not return to C3 when it was over. R was not allowed to go on the trip because he was “in pyjamas,” a form of punishment that restricted him to the ward. Patrick Smith, Resident Supervisor of C3, the Griever and another R.C.2, Donald Davis, remained on duty on the ward. Smith was working in the staff office from about 1O:OO a.m. to 12 noon and from 1:00 p.m. to 4:30 p.m. Directly across the hallway from the staff office is the staff room where the incident of July 30th involving R and the Griever originated. It is off limits to residents except that they may enter it to use an electric razor which is kept a few feet inside the door. The evidence is not clear as to whether or not Smith was in his office at the time of the incident. If he was, he saw and heard nothing. Davis;who could not testify because of illness, was occupied with duties off the ward during the morning from about 1O:OO a.m. and we are satisfied that he had no knowledge of the incident. . . . . . R’s testimony about the July 30th incident is that he went into the staff room and was caught there by the Griever in the act of stealing a lunch in a paper bag. The Griever yelled an obscenity at him and when he put down the lunch the Griever punched him once in the eye. The Griever then warned him that “if you do that again you are going to have to stay in py jamas” and ordered him to go to the T.V. room. . ..I7 /’ - The Griever’s testimony about the July 30th incident is that about 1O:OO a.m. he was looking for a resident who was to be taken for a dental appointment when he saw R in the staff room bent over a brown paper bag. He ye1 led “Hughie” at him and told him to go to the hallway. He entered the room and on looking into the bag saw a lunch. He went back to the hallway, told R that “he would be in pyjamas longer” and sent him to the T.V. room. He did not touch R. Ronald Clarke, an R.C. 2 assigned to C3 at the material time, testified that he was on the 2:30,p.m. - 11:OO p.m. shift on July 30th. He was walking to the staff office to sign in when he saw R and noticed that he had a black eye. He thought it was “on the mend” and so did not question R about it or report it. The next day he was questioned by Smith and told him what he had seen. Christine Walker, a Professional Social Worker at Huronia, testified that she was not on C3 on July 30th. On July 31st at about 1:45 p.m. she was in the activity area of C3 speaking with some of the residents when she noticed that R’s eye was “black and blue”. When she asked him what had happened he began to cry and she could not understand what he was saying. She went to the staff office and spoke to Smith and Kenneth Gunnell, the Shift Supervisor, neither of whom knew that R had a black eye. After L1 attending to some routine duties she went to R’s dormitory shortly before 3:oo p.m. and questioned him again about the black eye. He told her that the Griever had caught him trying to steal a lunch and had hit him. She asked him if he understood how serious his accusation was and he replied that he did. She told Smith what R had said and they took R to an interview room to question him further. R repeated that the Griever had hit him when he caught him stealing a lunch. He also told them that the . ../R -R- incident had happened the day before; that there had been no witnesses; and that the Griever had punched him once before and made his nose bleed. Smith testified that no .behavioural incidents were reported to him and there was no complaint from R on July 30th. He first noticed R’s black eye when, after Walker had come to him, he went to R’s dormitory to bring him to the interview room. There R said he had gone into the staff room and removed someone’s lunch from the refrigerator. The Griever caught him, punched him and told him to get out.of the staff room. Smith took R to fiandy Hadley, Service Manager, Block Programs, at Huronia and had him repeat his story. He then arranged for the physician on duty to examine R’s injury. At about 5:00 p.m. he telephoned the Griever at his home and asked him if he had noticed that R had a black eye, to which the Griever replied that he had not. The next morning, August lst, he asked the Griever for a written report of the incident. The report reads: While walking by the staff room, I saw Hugh bent over by the chair and table in the staff room. I yelled at Hugh, he jumped up quickly and left the staff room. Then I saw a bag which Hugh was going through. I talked to Hugh about this and sent him to the T.V. room. This statement was requested by my group IV Pat Smith. The issue of credi$ility is one of fact. The Board must weigh the conflicting versions of the incident of July 30th given by R and the Griever; must, in other words, judge their credibility. In that regard, the following excerpt from the frequently cited judgment of O’Halloran, J.A., of the British Columbia Court of Appeal, in Farvna v. Chornv, (1952) 2 D.L.R. 354, is apposite: The credibility of interested witnesses, particularly iri cases of conflict of evidence, cannot be gauged soley by the test of whether the personal demeanour . ..I9 I ,, * a -9- of the ~particular witness carried conviction of the truth. The test must reasonably subject his story to an ‘examination of its consistency with the proba- bilities that surround the currently existing condi- tions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. The learned jurist, in R. v. Pressley, (1949) 1 W.W.R. 692, also expressed the view that: The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circum- stances in the conditions of the particular case. It ~gors without saying that where the testimony of two interested witnesses is in direct conflict, it is not necessary that the testimony of one be found to be credible in every particular before it may be accepted over that of the other. Recollections may be faulty, events may be imperfectly observed, details may be inaccurately described. It may also be, as is the case here, that both witnesses have been shown to be capable of untruths.~ R’s history of lying about his thefts of food and other items is well documented. In the course of his testimony he stated that he had been given a black eye once before by an R.C. whom he named as Melvin Srigley. Srigley, called to testify on behalf of the Griever, stated that he had retired in 1977; that he had once struck a resident but it was not R; and that he does no& know R. We accept Srigley’s testimony, but it does not enable us to determine whether R invented the incident or was mistaken in his recollection of it. In 1983 the Griever pleaded guilty to and was convicted on a charge bf assaulting his then wife. He also pleaded gui~lty to and was convicted on a charge of public mischief in having lied to the police as to the cause of her injuries. The problem ultimately becomes one of assessing the probabilities brought . ../I0 ‘4 a,, - 10 - out by the evidence as a whole, with the objective of determining whether or not the onus of proving just cause borne by. the Employer has been met. . . . . . The Griever’s written report of the July 30th incident is a notably imprecise and low-key account which strikes us as an attempt to minimize what took place. The reason he gave in testimony for not reporting the incident, that finding another resident who was due for a dental qppointment was more important, again has the effect of playing down the incident. His detailed testimony about the incident describes a sequence of arms-length maneuvers tending to show the Griever carefully keeping his distance from R which is not, in our opinion, convincing. Two unquestionable facts emerge from the evidence. There was an incident. The Griever does not deny that, but does deny the punch. There was a black eye. .Clarke, Walker and Smith saw it as did Dr. Kriz, the physician who examined R at Smith’s request at about 4:00 p.m. on July 31st. The circumstances strongly support the view that R sustained the black eye in the time span starting with the incident with the Griever at about 1O:OO a.m. and ending with Clarke’s observation of it at about 2:30 p.m. If R already had a black eye at the time of the incident it would surely not have escaped the Griever’s notice and he could have been expected to rely on that fact and to testify accordingly. There is no evidence of any other incident dccurring during the four and one-half hour interval that would account for the black eye. Clarke’s aEfirmative evidence is to be preferred LO the negative evidence that no one else was aware, or if aware did not report, that R had a black eye. . ../ll Clarke’s opinion that the black eye was “on the mend” is not persuasive as to the time when it ‘may have been sustai,ned. Dr. Kriz described in his Accident and Injury Report haematoma (bruising) of the upper and, lower eyelids and excoriation (abrasion) ,of the corner of the upper eyelid of R’s right eye.’ Dr. Crawford testified that b&ising caused by force being applied to the eye would appear flushed in about fifteen minutes, would be blue or purple in twelve hours or less and would then become yellow or green before finally disappearing. R did not’ complain that he had been given, a black eye and it seems reasonable to assume that if Walker had not questioned him about it he would not have mentioned it at all. We consider it highly unlikely that if R intended to accuse the Griever falsely he would choose to wait until he was asked about the black eye, something that might well not happen. It appears to us equally unlikely that at the moment of being questioned by Walker he would form the intention to victimize the Griever by fabricating for that purpose a story which he could expect would sound plausible because of the coincidence of the incident of the day before. We have concluded that R’s testimony regarding the incident of July 30th is supported by independent evidence and should be accepted. Its compatibility with the facts and circumstances surrounding the incident persuades us that R has truthfully affirmed the fact of the Griever’s assault upon him on that date. We find, based on the evidence as a whole, that the Employer has discharged the onus of proving, on the balance of probabilities and considering the serious nature of the . ..I12 1 misconduct in question, that ‘in fact the Griever unnecessarily applied force to R on the said occasion. There remains the question whether or not dismissal is an excessive penalty and if it is, what is a just and reasonable penalty in all the circumstances. Because of our findings with respect co the incident involving M and the earlier incident involving R, one instance of misconduct stands against the Griever, the punch delivered during the July 30th incident. Certainly, it is grave misconduct. An assault on a resident. of a facility for the developmentally handicapped by a member of the staff of that facility with responsibility for the care of residents is unaccept- able by any measure. However, even though the Griever has demonstrated his unsuitability for his former position and must be removed from it, we are not convinced that his misconduct warrants dismissal from the public service. Rather, we believe such a dismissal to be an excessive penalty in the circumstances present here. The Griever was faced with the situation suddenly and unexpectedly. The’ punch appears to have been the result of a momentary loss of self-control presumably provoked by seeing R once again engaged in the incorrigible behaviour that periodically disturbed Lhe ward. One punch is one punch too many, but the fact that it was not repeated and that R was not otherwise physically threatened or abused suggests to us that the incident was not malicious or vindictive in character. All this being said, the Griever’s misconduct can in no way be condoned. It deserves and must receive a penalty commensurate with hits gravity. . ..I13 Under the provisions of Section lY(4) of the Crown Employees Collective Bargaining Act the result of our finding against the Griever is that we may not provide for his employment “in a positi,on that involves direct responsibility for br that provides an opportunity for contact with residents in a facility”. We may, however, provide for his employment “in another substantially equivalent position”. Such employment should not, we believe, be given retroactive effect. We consider it just and reasonable in all the circumstances and it is accordingly ordered that: (1) The Griever shall be deemed to have been suspended without compensation but without loss of seniority from the date of his removal from his former p,osition to rhe date of this decision; and (2) The Employer shall appoint the Griever to a position which the parties are agreed is substan- tially equivalent to the position from which he was removed, such appointment to be effective from the date of this decision. We retain jurisdiction in order to rule on the question of a substanti- ally equivalent position should that question not be settled between the parties. DATED at Toronto, Ontario, this 24th day of February 1987. F.M. Draoer. Vice-Chairman ;/ 1. Freedman, Member