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HomeMy WebLinkAbout1987-1683.Hunt.90-05-11ONTARlO EMPLOY& DE LA CO”RONNE CROWNEMPLOYEES DE L’ONT*RIO GRIEVANCE CQMMISSION DE !XTT;;MENT REGLEMENT DES GRIEFS BETWEEN: BEFORE: FOR THE GRIEVOR: 1603/87 IN TEE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT' Before THE GRIEVANCE SETTLEMENT BOARD FOR THE EMPLOYER: OPSEU (S. Hunt) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer I.C. Springate Vice-Chairperson I. Freedman Member W. Lobraico Member B. Hanson Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors HEARINGS: R. Anderson E. Maksimowski Counsel Ministry of Community & Social Services May 31, 1988 June 13, 1988 November 2, 7, 14, 21, 28, 1988 December 30, 1988 May 31, 1989 1 The grievor was employed as a residential counsellor at the Oxford Regional Centre, a residential facility for developmentally handicapped adults. He worked at the institution from 1968 to 1973. He was rehired in April of 1982. At the time of the events rise to these proceedings the grievor did not have a giving discip linary record. On January 16, 1987 the grievor rece ,ived a written reprimand for allegedly rapping resident “N” on the head. On March 17, 1987 he was dismissed for having allegedly physically abused residents “M” and “,smm, for treating residents in an unnecessarily harsh and rough manner and for coercing students into not reporting abusive incidents. The grievor and the union contend that the employer did not have reasonable cause to either issue a written reprimand to the grievor or to discharge him. Some time elapsed between the alleged events referred to above and the arbitration hearing. This delay allowed the completion of certain criminal proceedings against the grievor in which he was charged with assaulting “N”~, “M” and “s”. Following a preliminary hearing the grievor was committed for trial on all three charges. At trial the grievor was found guilty of assaulting “N” but given an absolute discharge. The grievor was acquitted of assaulting “M” and “S”. A major difference between these proceedings and those before the criminal court is that in the instant case the onus on the employer is not the criminal onus of proof beyond a reasonable doubt. It is instead the civil onus which requires that the employer demonstrate on a balance of probabilities that the grievor engaged in the actions complained of. Although it is the civil onus which applies, given the nature of the allegations and the implications of any finding adverse to the grievor, we are satisfied that the allegations can only be established through clear and cogent evidence. In this regard we adopt the following reasoning from Re Kulmatvcky 418/84 (Verity): The standard of proof borne by the Employer in rights arbitrations is the civil burden of proof, namely proof on the balance of probabilities. As a general rule, the civil test is a lesser test than the criminal standard of proof beyond a reasonable doubt. However, where serious or reprehensible misconduct is alleged, arbitration boards generally require that the allegations be established on the balance of probabilities by clear and cogent evidence. Put another way, proof must be established on a reasonable degree of probability which, of course, is a lesser test than required in a criminal case. When employed at the Oxford Regional Centre the grievor worked in the Lakeview residence, which is part of the Centre’s Pinegrove Unit. The residents of Lakeview are not only developmentally handicapped but also have serious behavioural problems. At the time of the events giving rise to these proceedings, Lakeview was not an ideal place in which to work. This was due, in part, to the relatively large number of “problem” residents. Mr. Douglas Dafoe, who at the relevant time was the Lakeview residence director, testified that staff resented the fact that residents who caused problems on other residences seemed to end up on Lakeview while Lakeview was unable to. get rid of its own problem residents. According to Mr. Dafoe, this led the staff of the residence to feel that they were being “dumped on”. Mr. Henry Duncan, director of the Pine Grove unit, testified that subsequent to the events described below management decided that there had been too many residents on Lakeview for the staff to handle. As a result the number of.residents was reduced from 25 to 19 without any corresponding reduction in the number of staff. Certain of the staff on Lakeview appear to have adopted an unsympathetic approach towards the residents. Mr. Duncan testified that staff tended to penalize residents for poor behaviour rather than reward them for good behaviour. Mr. John Hewitt, the administrator of the Oxford Regional Centre, indicated that as a result of the alleged events giving rise to these proceedings as well as allegations of wrongdoing raised against other staff on Lakeview, including Mr. Dafoe, he concluded that a punitive culture existed in the residence. To correct matters, subsequent to the events described below he installed a new residence supervisor as well as a new assistant supervisor. Mr. Hewitt indicated that there was also a turnover of about half of 4 the counsellors on Lakeview and that all of the staff on the residence were given additional training. Our assessment of the grievor’s conduct must logically be done in the context of the situation as it existed at Lakeview prior to these changes. With respect to the employer’s allegation that the grievor treated residents in an unnecessarily harsh and rough manner, the evidence indicates that he frequently spoke to residents in a loud and unfriendly tone. This approach, however, was also utilized by a number of other staff in the residence. Further, management was aware of the grievor’s approach to residents and took no action to clearly advise him that it was not acceptable. Mr. Duncan, the Pine Grove unit director, testified that he had heard the grievor being loud and overbearing with residents and that his only response was to ask Mr. Dafoe to try to get the grievor to be less overbearing. Mr. Dafoe, the residence director, testified that he advised the grievor that he should ‘be less impatient with residents. This comment would not have reasonably put the grievor on notice that his verbal approach to residents might result in him being disciplined. Accordingly, the grievor’s verbal manner with residents could not justify the imposition of any disciplinary penalty. The situation is somewhat different with respect to the allegations of physical abuse raised against the grievor. 5 Although the number of allegations raised against staff on Lakeview suggest that the physical abuse of residents may not have been uncommon, the evidence falls far short of suggesting that staff might reasonably have believed that such abuse was acceptable. At the hearing the grievor testified that he had always known that staff could not abuse residents and he assumed that he had been told this by management. He also testified that he understood that resident abuse would result in disciplinary action. Before considering the allegations that the grievor engaged in physical abuse we would dispose of the employer’s contention that the grievor coerced students into not reporting abusive incidents. The employer’s evidence related to two students who were on a work placement at the Oxford Regional Centre as part of a two year developmental services worker program at the Fanshawe College of Applied Arts and Technology. One of the students, Mr. Peter Overgaauw, testified that during a discussion concerning the role of students, the grievor advised him that students should see all, hear all and say nothing. The other student, Ms Joanne Morin, testified that the grievor advised her that the previous year’s students had been a great group and that everything they had heard had stayed “within these four walls”. The grievor testified that he had no recollection of making the statements attributed to him by Mr. Overgaauw and Ms Morin, but added that if he had made such statements it would have been to indicate to the students that they should not gossip about residents outside the Oxford Regional Centre. Two reasonable interpretations can be given to the grievor’s statements to the students. One is that he was telling them not to report the actions of himself and other staff. The second is that he was cautioning them not to discuss residents outside the Centre. In light of this second possible interpretation, we find that the employer has failed to establish that the grievor sought to intimidate either MS Morin or Mr. Overgaauw into not reporting abusive incidents. At the hearing the employer led evidence with respect to two instances of alleged physical abuse which were not expressly referred to in the grievor’s letter of discharge but which the employer contends were taken into account when it decided to discharge him. The evidence was given by Ms Debbie Babicz, a former Fanshawe student who worked at the Lakeview residence from February to May, 1986. Ms Babicz testified that when on one occasion resident “C” refused to get off the floor, “she was shoved or moved or kicked” by the grievor.. When asked about her uncertainty as to the grievor’s actions, Ms Babicz replied that when someone is being kicked you cannot tell how much force is being used. Ms Babicz claimed that on another occasion the grievor and a second staff member dragged another resident, she could not recall which one, to a time-out room and then threw the resident into the room. For his part the grievor testified that he had never kicked or shoved “C” with his foot. He also testified that he had no recollection of throwing a resident into the time-out room, adding that he doubted very much that this had happened. On February 9, 1987 Ms Babicz signed a statement indicating that the grievor had kicked “C” in the thigh area. When called as a witness at the grievor’s preliminary hearing, however, Ms Babicz indicated that she had no recollection of the grievor abusing anyone. In addition, she stated that she confused the grievor with another employee. In these proceedings Ms Babicz explained her inability to recall any incidents of abuse at the preliminary hearing by stating that she is,a nervous person, that no one had told her why she had been subpoenaed to attend at court and that at the time she had not had a chance to refresh her memory. Ms Babicz indicated that she now recalled the incidents in question. Ms Babicz’s testimony at the preliminary hearing raises questions in our minds as to her powers of recollection. More important1 y , her indication that at times she confused the grievor with another staff member raises a real doubt as to whether any abuse she may have witnessed actually involved the grievor. In the result, we find that the employer has not established through clear and cogent evidence that the grievor engaged in the two acts Of misconduct referred to by Ms Babicz. 8 At the hearing the employer sought to lead evidence from two witnesses with respect to yet another incident of alleged abuse on the part of the grievor. Employer counsel advised the Board that the employer had only learned of the alleged abuse while preparing for the arbitration hearing. The general rule is that an employer cannot alter or add to the grounds for discharging an employee, although an exception is generally recognized where an additional ground was unknown to the employer at the time of discharge, particularly if careful investigation would not have revealed the ground. See Loblaw Groceterias Co. Ltd. and Union of Canadian Retail EmDloYees (19731, 3L.A.C. (Zd) 325 (Adams). Employer counsel did not contend that the employer had been unable to previously learn about the alleged incident. Counsel also did not argue that the alleged incident came within the exception to the general rule referred to above. Counsel did, however, contend that evidence with respect to the new allegation was admissible because it related to the grievor’s conduct in allegedly rapping “N” on the head. Counsel submitted that the additional incident had occurred shortly prior to the events involving “N” and accordingly served to demonstrate the grievor’s attitude towards residents at the time. Union counsel strenuously objected to the employer’s attempt to lead evidence with respect to the alleged incident. The Board ruled orally that the evidence sought to be adduced by the employer would be of limited probative value insofar as it related to the incident involving “N” and that any probative value was outweighed by the potential prejudice to the grievor should the evidence be admitted. In the result, the Board ruled that it would not allow the employer to lead evidence with respect to the alleged incident. This brings us to the matter of the alleged abuse of resident ” N ” . The incident involving “N” occurred on October 28, 1986. On that day the grievor was assigned to escort five residents, one of whom was “N”, to the Centre’s blood clinic. He was then to take the residents over to the x-ray clinic where two of the residents were to be x-rayed while he waited outside with the other three residents, including “N”. “N” , is moderately retarded. He can be abusive to himself, other residents and staff. He is known for frequently pulling the hair of those around him. The employer’s evidence was that at the relevant time the “individual program plan” for “N” indicated that when he pulled someone’s hair he was to be verbally reprimanded and placed in a bed restraint. On the day in question “N” pulled the grievor’s hair. Given the situation at the time, however, it was clearly not practicable for the grievor to immediately place “N” in a bed restraint. The grievor testified that he was sitting outside the x-ray clinic with “N” and two other residents when Dr. Nancy Cameron came down the hall and started to talk to him. Dr. Cameron i! s a ional Centre with responsib i lity staff physician at the Oxford Reg 10 for the physical well-being of residents. According to the grievor, while he was talking to Dr. Cameron “N” reached over and pulled from h second ” N ” ’ s s hair. He then took hold of “N” ‘s hand and removed it hair. The grievor stated that “N” grabbed his hair a me, this time pulling out some hair, and again he pulled and away. The grievor denied having hit “N” with his knuckles. When asked why Dr. Cameron had said that she saw him do so, the grievor replied, “I haven’t a clue”. Dr. Cameron’s evidence generally paralleled that given by the grievor except for her claim that the grievor had rapped “N” on the head. According to Dr. Cameron the following events occurred. She was walking by the x-ray waiting room when she stopped to talk to the grievor who was sitting with “N” and two other residents. “N” leaned over and pulled the grievor’s hair. The grievor told “N” to stop. “N” did not let go. The grievor pried “N”‘s hand away from his hair. The grievor then hit “N” on the top of his head three times with his knuckles. Shortly thereafter “N” pulled the grievor’s hair again. The grievor asked that he stop and when “N” did not do so, the grievor removed “N”‘s hand and then hit him with his clenched fist about three times on the top of the head. Union counsel challenged the reliability of Dr. Cameron’s evidence on the grounds that it was inconsistent with certain prior statements she had made. This included statements relevant 11 to the issue of whether “N” had been sitting or standing when he pulled the grievor’s hair. In a written statement prepared for the employer on November 10, 1986, Dr. Cameron indicated that “N” had been sitting. At the grievor’s preliminary hearing, however, she indicated that she could not recall whether “N” had stood up when he pulled the grievor’s hair. At the grievor’s trial Dr. Cameron stated that “N” had remained sitting. Union counsel also relied on the fact that Dr. Cameron testified that she did not see “N” pull out any of the grievor’s hair, despite the grievor’s evidence that this had occurred and Dr. Cameron’s acknowledgement that it might have happened. Union counsel contended that the issue of whether “N” was standing or sitting and whether any of the grievor’s hair was pulled out were so proximate to the alleged knuckle rapping incident that Dr. Cameron’s failure to clearly testify about these matters indicated either that her ability to observe events was more limited than she suggested or that her ability to recollect was flawed. The union also relies on the fact that Dr. Cameron made no attempt to stop the grievor from allegedly hitting “N”, did not express shock when the conduct allegedly occurred, did not physically examine “N” to see if he had been injured and also delayed reporting the alleged incident. Dr. Cameron testified that although she had not said anything to the grievor at the time, she was shocked by his action in hitting “N”. She stated 12 that she did not examine “N” because she did not anticipate that she would find any injuries. She further testified that although she had been aware that she should report the incident, she did not do so until November 7, 1986, some nine days later, when she reported it to Mr. Duncan. Dr. Cameron testified that she did not report the grievor’s conduct before this because she had been busy and also because it disturbed her to have to report another staff member. The union contends that it is reasonable to infer from Dr. Cameron’s delay in reporting the grievor’s conduct that she was uncertain as to what she saw. This possibility, however, is not consistent with the situation at the time. Dr. Cameron had stopped to talk with the grievor. She wi tnassed “N” twice pull the grievor’s hair. Had the grievor rapped “N” on the head, Dr. Cameron would have been in a good position to witness it. There should not have been any doubt in her mind. Dr. Cameron did not suggest that she had any doubt. While her recollection with respect to certain surrounding circumstances was somewhat unclear, Dr. Cameron’s evidence relating to the two hair pulling incidents and the grievor’s response remained consistent. Dr. Cameron had no reason to raise a false allegation against the grievor. In all the circumstances we are satisfied that the grievor did rap “N” on the head with his knuckles a total of about six times. 13 Following Dr. Cameron’s report to Mr. Duncan about the incident involving “N”, Mr. Duncan reported the matter to Mr. William Fenlon, the assistant administrator of developmental services at the Oxford Regional Centre. Mr. Duncan testified that Mr. Fenlon directed him to verbally reprimand the grievor and accordingly he cal led in the grievor, told him that rapping “N” on the head had been unacceptable and not to do anything like that again. According to Mr. Duncan, he also told the grievor that he was being given a verbal reprimand and that this was the end of. the matter. On January 12, 1987, Mr. Fenlon sent Mr. Duncan a letter in which he recommended that a written reprimand be issued to the grievor. This action resulted from a recommendation by the Oxford Regional Centre’s critical incident committee that the grievor be disciplined. In response to Mr. Fenlon’s letter, Mr. Duncan issued the grievor a written reprimand. It is now generally accepted that an employer cannot punish an employee more than once for the same act of misconduct. We are satisfied that it is also not open for an employer to advise an employee that he will not be punished for a particular act of misconduct and then later impose a disciplinary penalty. Given this view we do not believe there is any need to determine whether or not the verbal reprimand given the grievor by Mr. Duncan amounted to a form of formal discipline. Once Mr. Duncan advised the grievor that he was being verbally reprimanded and that this 14 was the end of the matter, it was not open for the employer to subsequently issue a written reprimand for the same conduct. Having regard to the foregoing, we find that although the grievor did rap “N” on the top of his head a number of times, because of the statements made to him by Mr.’ Duncan the employer could not properly issue the grievor a written reprimand. The employer is accordingly direc,ted to remove all references to the written reprimand from the grievor’s personnel file. The incident involving “S” occurred on or about January 21, 1987. “S” is a female resident who functions at the severe level of mental retardation. She’is a particularly difficult resident who at times has severe temper tantrums. On the day in question all of the residents of Lakeview were to go to a developmental skills program in another building. “S” I who did not want to go, threw herself onto the floor and began to move about while waving her arms and legs. The grievor and Mr. Dafoe both attended at the scene, although the evidence is in conflict as to which of them arrived first. Former Fanshawe student Peter Overgaauw testified that he watched what occurred from about 10 to 15 feet away. He stated that he was at about a 45 degree angle from “S” with the grievor’s back towards him. Mr. Overgaauw testified that when he arrived on the scene Mr. Dafoe was with “S” telling her to get up. According 15 to Mr. Overgaauw, the grievor joined Mr. Dafoe, asked “S” if he had to stand on her to get her to stand up and then put his foot on “S”‘s neck. Mr. Overgaauw testified that “S” screamed, the grievor removed his foot and “S” then stood up. The grievor testified that he arrived at the scene before Mr. Dafoe and that the following events occurred. The grievor opened the door to the nearby time-out room on the assumption that “S” would be placed in the room. The grievor reached for his keys to lock the door once “S” had been placed in the room. At about the same time he called out to Mr. Defoe, who was in a near-by office, to come and assist him. Because “S” was moving about on the floor, the grievor placed his foot on her shoulder to keep her from hurting herself on a couch or the open time-out door. He did not restrain “S” with his hands because of a back problem. Mr. Dafoe arrived and together they lifted “S” off the floor. The grievor could not recall if “S” was actually placed in the time-out room. Mr. Dafoe test ified that he was working in the ward office when the following occurred. He heard “S” making a commotion. When the noise got louder he went to see what was the matter. He arrived at the scene at about the same time as the grievor. Mr. Dafoe either told “S” to get up or to be quiet. “S” did not respond. The grievor put his foot on “S”‘s shoulder so as to stop 16 The employer contends that we should reject Mr. Dafoe’s evidence because he himself was the subject of a separate abuse allegation relating to “S” made by Mr. Overgaauw. Following the raising of this allegation, and an indication that the employer was considering invoking the procedures under the Public Service && which might result in his discharge, Mr. Dafoe took early reti rement. In these proceedings Mr. Defoe denied having engaged in any resident abuse. He also testified that he did not have any social contact with the grievor. This together with the fact that he had left the employer’s employ suggests that Mr. Dafoe did not have any motive to come to the hearing and give false evidence in favour of the grievor. The union called as a witness Dr. D..J. Ogilvie-Harris, an orthopaedic surgeon. Dr. Ogilvie-Harris testified that for nine people out of ten the application of a person’s full weight on their neck would result in a serious neck injury. He noted that a pressure of twenty-five pounds or greater would likely result in a neck injury, although a pressure of less than twenty-five pounds her from moving from side to side. At about the same time the grievor grabbed one of “S”‘s arms while Mr. Dafoe grabbed the other and together they lifted her up. Mr. Dafoe testified that he did not hear the grievor threaten to put his foot on “6”‘s neck. 17 might not. Dr. Ogilvie-Harris further indicated that the lower a foot on a person’s neck the less the likelihood of an injury. No evidence was led to indicate “S” suffered a neck injury. In light of the evidence of Mr. Dafoe and Dr. Ogilvie-Harris, we believe it quite possible that the grievor did not step on "S"'S neck, but rather placed his foot on her shoulder, It might we1 1 be that because of the distance he was from “S” , Mr. Overgaauw wrongly concluded that the grievor had placed his foot on her neck. This being the case, we conclude that the employer has not satisfied the onus of establishing that the grievor placed his foot on “S”‘s neck. Holding “S” stationary by placing his foot on her shoulder cannot be viewed as an appropriate response to the situation confronting the grievor. Had he been worried about his back, the grievor could have sat down beside “S” and held her with his hands until other staff could assist him. Although the grievor’s conduct reflected poor judgement on his part, however, it did not justify the imposition of a serious disciplinary penalty. This brings us to the final allegation against the grievor, namely that he abused resident “M” . “M” is a female in her 30’s who is about 5 feet tall. “M” has a tendency to be non-compliant with staff. Mr. Daniel Stogdill, a psychometrist at the Oxford Regional Centre, agreed with union counsel that if asked to leave 18 an area, “M” might fall down. He also agreed that if someone came upon her she would often respond by flinching and drawing away. It was the grievor’s evidence that if spoken to by staff, it was L common for “M” to squirm, Rlonk herself on the floor and then scuttle away on her buttocks using her feet. Joanne Morin was a Fanshawe student who was at the Oxford Regional Centre from January to April, 1987, starting at the Lakeview residence. Ms Morin had been on two previous work placements which involved looking after persons who are mentally retarded. At the time she gave her evidence, Ms Morin was 22 years old and employed as a group home counsellor by the Cambridge and District Association for the Mentally Retarded. Ms Morin did not on her own initiative raise an allegation concerning the grievor’s conduct. Rather, in response to a comment made by Mr. Overgaauw to the critical incidents committee, the committee asked Ms Morin to meet with it. When she did so Ms Morin referred to the alleged incident described below. Ms Morin testified that on January 15, 1987 she was with “M” in the washroom while “M” was brushing her teeth after supper. As was her custom “M” was taking too long and accordingly Ms Morin advised her that she had only one more minute to finish. According to Ms Morin the grievor came into the washroom and either told “M” to hurry up or to get out. The grievor then 19 .,. . grabbed “M” by the shoulder, pulled her back, flung her to the floor and kicked her in the thigh two or three times as she crawled towards the bathroom door. The grievor testified that he had no recollection of an incident involving “M” on January 15, 1987, but knew that he had never thrown “M” to the floor or kicked her. When asked by employer counsel why Ms Morin had given evidence to the contrary, the grievor replied that she must have misinterpreted what she thought she had seen. The notes of Dr. M i lton Blake, the chief psycholog ist at the Oxford Regional Centre and chair of the critical incidents committee, indicate that when she appeared before the committee Ms Morin stated that the grievor had “pushed” “M” out of the washroom door with his foot. In a written report prepared for the committee Ms Morin stated that the grievor had kicked “M”, a claim she also made in an undated written statement to the police and in a February 9, At the grievor Morin also cla 987 written statement to a ministry investigator. s preliminary hearing and later at his trial Ms med that the grievor had kicked “M”. The union contends that the fact Ms Morin referred to the grievor pushing “M” with his foot when she appeared before the critical incidents committee suggests that Ms Morin was either uncertain of what she had observed and/or that her recollection was unreliable. 20 Union counsel further contends that the evidence given by Ms Morin was unreliable because it was inconsistent over time with respect to a number of other material points. In this regard, he relies on the fact that Ms Morin’s statement to the Board that the grievor grabbed “M” by the shoulder and flung her to the ground differed from her previous written statements to the critical incidents committee and the police. In her written report to the committee Ms Morin claimed that the grievor grabbed “M” by the shoulder and threw her away from the sink and that when thrown “M” fell to the floor. In her statement to the police Ms Morin stated that the grievor had grabbed “M” by the shoulder and then turned her around as he flung her towards the door which caused “M” to fall to the floor. We note that in her verbal statement to the critical incidents committee, her written statement to the ministry investigator as well as at the preliminary hearing Ms Morin stated that the grievor grabbed “M” by the shoulder and threw her to the floor. At trial Ms Morin indicated that the grievor grabbed “M” by the shoulder, pushed her backwards away from the sink and as a result of the push she fell. Although on these various occasions Ms Morin described what had happened in somewhat different terms, it is noteworthy that on each occasion she referred to the grievor grabbing “M” by the shoulder and then propelling her with the result that she landed on the floor. 21 Under questioning by employer counsel, Ms Morin acknowledged that at the grievor’s trial she had initially lied to the court when she claimed that she did not remember who had told her that Mr. Overgaauw had obtained a copy of a report she had made. At trial Ms Morin was asked by defence counsel if she could not remember or if she was trying not to mention someone’s name due to the possible consequences of doing so. Ms Morin replied that it was the latter. When asked who had told her, Ms Morin replied that she had been given the information by her roommate who had been in attendance at the preliminary hearing. At the arbitration hearing Ms Morin indicated that her original statement to the Court had been based on a desire not to involve her roommate in the Court proceedings. During the hearing Ms Morin acknowledged that when she was mailed a copy of her report to the critical incidents committee it was accompanied by a copy of a statement by Mr. Overgaauw. This statement did not relate to the incident involving “M”. Ms Morin testified that she did not read Mr. Overgaauw’s statement. When it was subsequently pointed out to her by union counsel that at the trial she stated that she had read Mr. Overgaauw’s statement, Ms Morin replied that when asked about the statement at the Board hearing she did not recall having read it, but she guessed that at the trial she did recall reading it. Union counsel contends that these two incidents indicate a willingness on the part of Ms Morin to lie under oath. 22 Shortly after the incident involving “M”, Ms Morin was transferred to the Centre’s pharmacology department for two weeks. At the time it was understood that at the end of the two weeks she would return to Lakeview. In the interim, however, she made her statement to the critical incidents committee. At the end of the two weeks she was placed in another residence. Ms’ Morin acknowledged that this other residence was a more pleasant work envi ronment. Union counsel contends that this change in residence would have given Ms Morin an interest in raising a false allegation against the grievor. This, however, assumes that at the relevant time Ms Morin would have anticipated that a result of her comments to the critical incidents committee she would be placed in another residence. No evidence was led which would support such an assumption. Accordingly, we do not accept this as a possible reason for Ms Morin to have raised a false allegation against the grievor’. In addition, we do not view Ms Morin’s initial attempt to shield her roommate from any involvement in the court proceedings, the fact that over an extended period of time she apparently’ forgot that she had read a statement by Mr. Overgaauw with respect to a different matter, her use of different terminology at various times to describe the grievor’s conduct or the fact that she did not take the initiative to report the grievor’s conduct as sufficient grounds for concluding that she was not a credible witness. 23 We are left with weighing the evidence of Ms Morin against that of the grievor. Ms Morin was in a position to-clearly view the incident involving “M”. She had no reason to raise a false allegation against the grievor. She gave her evidence in a straightforward manner and was not shaken during a rigorous cross-examination. The grievor’s evidence was that he had no recollection of the incident alleged by Ms Morin and that he would not have engaged in that kind of conduct. The fact that the grievor rapped “N” on the head is not relevant to the issue of whether he kicked “M”. The fact that he rapped “N” on the head and then under oath in these proceedings insisted that he had not done so is, however, a relevant consideration when assessing his credibility. In all the circumstances we are satisfied that the evidence of Ms Morin is to be preferred over that of the grievor and that the grievor did cause “M” to fall to the ground and that he then kicked her two or three times as she was leaving the washroom. At his criminal trial the grievor was found guilty of assaulting “N” but acquitted of assaulting “M”. In his judgment his honour Judge Misener stated that he found Ms Morin to be a most impressive witness and that he had no doubt at’all but that she gave her evidence in its essential aspects truthfully in the sense that she honestly believed that she was correct in what she said. The judge also commented that his assessment of Ms Morin’s 24 credibility was of such strength that before hearing the final submissions of defence counsel he had been satisfied beyond a reasonable doubt that there had been actual foot contact between the grievor and “M” of such a nature that it should be labelled as an assault. After hearing defence counsel’s submissions, however, his honour concluded that a reasonable possibility existed that the grievor’s movements towards “M” may have been misinterpreted by Ms Morin. In this regard his honour concluded that there was a real possibility that when the grievor took hold of “M” by the shoulders “M” had flung herself to the floor and that the grievor’s subsequent foot movements as she headed towards the door were not intended to be a threat of kicking and that there had not been any actual contact. As noted above, in the instant proceedings the employer is not required to prove its case beyond a reasonable doubt but on a balance of probabilities by way of clear and cogent evidence. This reflects the difference between the criminal and arbitration processes. While it is possibile that Ms Morin misinterpreted what she saw, we believe it unlikely. Ms Morin was in the washroom with “M” waiting for her to finish brushing her teeth. She was in a position to clearly view what occurred. It is highly unlikely that she would have misinterpreted some other movement of the grievor’s foot as repetitive kicking of “M” in the thigh. Ms Morin’s evidence, particularly when considered in light of the 25 .,.. . grievor’s conduct in giving false evidence with respect to another act of abuse, meets the onus of proof required to establish in these proceedings that the grievor physically abused “M”. Discharge is generally viewed as the appropriate response for the deliberate physical abuse of persons who are unable to care for themselves. See Re Province of Alberta and Alberta Union of Provincial Emplovees (1987), 29 L.A.C. (3d) 109 (McFetridge) and Re Chan 911/86 (Brandt). In certain circumstances the Board has reinstated employees found to have abused a resident. It has done so generally where the employee’s conduct was a spontaneous reaction, the employee’s record was otherwise good and there was an acknowledgement of wrongdoing and remorse. See, for example, Re Landrv-King 1593/84 Knopf. With respect to the grievor’s conduct in rapping “N” on the head, the employer decided that only an oral reprimand was in order, presumably in part because the grievor was reacting to a resident who was pulling his hair. No such mitigating circumstances existed with respect to the incident involving “M”. “M”‘s only misconduct was to spend too long brushing her teeth. The grievor’s brutal response was unprovoked and he has not demonstrated any remorse for his conduct. In the circumstances, we are satisfied the employer did have just cause to terminate the grievor. Accordingly, the grievance relating to the gr ievor's termination is hereby dismissed. Dated at Toronto this DATED at Toronto, this Jlth day of .&., 1990. I. FREEDMAN, MEMBER I- W. LOBRAICO, MEMBER 26