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HomeMy WebLinkAbout1991-0045.Gardiner.92-05-25 DecisionEMPLOYES DE LA COURONNE DE L 'ON TARIO commission DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1z8 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO. M5G lZ8 TEL€PHONE/T€LEPHONE (4 16 326 I388 FACSIP/IILE/T€L€COPIE 16 326- 1396 45/91 IN THE MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING.ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gardiner) - and Grievor The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE : FOR THE GRIEVOR FOR the EMPLOYER HEARING A. Barrett P. Klym D. Montrose Vice-Chairperson Member Member L. Rothstein Counsel Gowling, Strathy & Henderson Barristers & Solicitors S. White Counsel Legal Services Branch Ministry of 'Community & Social Services July 11, 1991 October 29, 1991 November 22, 1991 December 4, 1991 March 13, 27, 1992 DECISION Mr. Gardiner was dismissed from his position as a developmental services worker at the Southwestern Regional Centre on February 11, 1991, for abuse of the residents in his care. Four instances of abuse are alleged, and Mr. Gardiner denies any involvement in any of the incidents, and grieves his dismissal. Our primary task is to determine, on the evidence, whether or not these incidents actually occurred. Because the acts alleged against Mr. Gardiner are criminal in nature we must be persuaded by clear and convincing evidence, beyond a balance of probabilities, that he committed the abusive acts in order to uphold his dismissal. The union concedes that if we find the grievor committed all of the abusive acts as alleged, he should be dismissed. If we find that only one or two of the acts are proven, we have a discretion pursuant to section 19(4) of the Crown employees Collective bargaining Act to reinstate the grievor to a job involving no contact with residents. And, of course, if we find that none of the incidents of abuse are proven, the grievor must be reinstated with full back pay and benefits. The Elgin 1 North Unit of the Southwestern Regional Centre houses 24 profoundly retarded but ambulatory male adult residents. Thirteen developmental service workers (D.S.W.'s) care for these residents on a round-the-clock basis. In communication and social skills, the residents function at a level between three months and 2 two years of age. The staff must feed, bathe, toilet and dress them, much like infants. Mr. Gardiner's letter of dismissal sets out the allegations against him, and is reproduced below: February 11, 1991 Mr. Ray Gardiner 225 Campus Parkway, Apt 202 Chatham, Ontario N7M 4x2 Dear Mr. Gardiner: I have reviewed the report of the Centre's internal investigation team as well as the information provided to me and your statements as presented orally to me at the meeting on February 4, 1991, concerning the allegations of abuse of residents in your charge. The allegations against you are as follows: 1. sometime in December, 1990, on the television side of the dayroom, you were seen kicking resident v in the back, knocking him to the floor. [V] was standing in front of the television blocking your view when he was kicked by you. 2. On or about November 23, 1990, on the television side of the dayroom, you were seen to flip resident [PI (who was on his knees smacking his hands on the floor) onto his back and then putting your knee to the client's throat and holding it there for approximately 1 minute. 3. On or about' September 26, 1990 you were seen to push resident [V] hard enough so that he hit the wall with his head, fell and then hit the floor with his head. 3 4. On or about December 4, 1990 you were seen to hold resident [C] in the air by the neck. I have considered all of the information available and it is my view that the above allegations have been substantiated. You have abused your position of trust with facility clients and you can no longer be employed in a facility providing care to developmentally handicapped individuals. It is my conclusion that you are in violation of the Standards of Conduct and Disciplinary Guidelines, and that the appropriate penalty is dismissal. You are hereby dismissed from employment in accordance with Section 22(3) of the Public Service Act, effective as of February 11, 1991. The Human Resources office will be in touch with you regarding your entitlement on termination. You are entitled to grieve your dismissal at the second stage provided you do so within 20 working days. Yours truly, signed L. Jackson Administrator Southwestern Regional Centre" We heard substantial evidence about the residents, their living quarters and their routines from several witnesses. Resident V, aged 40, is about 5'8" or 5'9" and weighs 140 to 150 pounds. He suffers from grand mal epileptic seizures and must wear a helmet at all times. V is one of the higher-functioning residents on the unit. He is slightly verbal and functions at about 4 an 18-month age level. He can be mischievous, but he can also be charming, and likes to help out the staff by attempting to fold towels. Resident P, aged 30, is 5'2" or 5'3" and weighs 120 to 130 pounds. He is non-verbal, a loner, and also epileptic. When wound- up he will squat on his knees and slap his hands on the floor repetitively and blow "raspberries" from his mouth until he gets really red in the face. Some D.S.W.'s have found that simply rolling P over onto his back during this behaviour will stop it. Resident C, aged 32, is about 5'3" and weighs 100 pounds. He looks shorter though, because he walks bent over and is unsteady on his feet. C exhibits some behaviours which can be upsetting and irritating to staff and other residents. He is very demanding of attention and inclined 'to pull staff members' arms, hair and clothing. He screams a lot and when he soils himself he is inclined to play with the product. For these reasons, C is the only resident who has a room of his own and a one-on-one D.S.W. for part of the day. In January, 1991, Mr. Gardiner had been a full-time D.S.W. for about 18 months. Prior to that, he did part-time work on the unclassified staff for about three years performing many of the same duties as a D.S.W. He rotated on all of the various units in the Centre, working with both higher-functioning and lower- functioning residents than those on Elgin 1 North. He started his 5 full-time work in Elgin 1 North in May, 1990. His supervisor, Krys Papps, was satisfied with his work and had no complaints about him. Similarly, supervisors on other units he worked on described him as a willing worker whose performance was satisfactory in all respects. He appeared to get along well with his co-workers. The first contrary indication came to light in January, 1991. Another D.S.W., Cliff Steptoe, reported to Krys Papps an incident that had occurred while he and Mr. Gardiner were alone on the night shift some two days earlier. Resident C had soiled himself and his room. In accordance with usual procedures, Mr. Steptoe cleaned the room while Mr. Gardiner took C next door to the "slab room" to bathe him. Mr. Steptoe testified that he heard a lot of commotion coming from the slab room: thuds and slapping of skin. When he entered the slab room, he saw C on the floor at the end of the slab with his hands up over his head as if he was trying to protect himself. There were no injuries on C and Mr. Steptoe did not say anything to Mr. Gardiner. Mr. Steptoe was hesitant about reporting this incident, but he was aware, as were all of the D.S.W. Is, of his obligation to report any suspected resident abuse. Mr. Steptoe testified that he had had earlier concerns about Mr. Gardiner's treatment of the residents and had counselled him on more than one occasion: "If they upset you, just walk away". Although loath to report a co-worker, Mr. Steptoe said his conscience was bothering him, especially in light of a phone call he had received just a short time earlier from a grandmother of one of the residents 6 telling him what angels all of the D.S.W.'s were who were doing such a caring and wonderful job with her grandson. Krys Papps, and other management personnel who became involved after the report from Mr. Steptoe, determined that the incident described by Mr. Steptoe did not constitute provable resident abuse. However, a full-scale investigation was launched into Mr. Gardiner's conduct with the residents. Each of the D.S .W. 's was asked individually whether he or she had witnessed any incident of inappropriate behaviour with residents on Mr. Gardiner's part. That is when three other co-workers came forward and described the incidents set out in the letter of dismissal. Karen Vander Baan, a D.S.W. at the Centre since 1989, testified that one day in early December, 1990, at about 6:00 p.m., she was sitting in the dayroom with a group of residents watching TV. Cliff Steptoe and Mr. Gardiner were also there. Resident V was standing in front of the TV blocking other people's view. Mr. Gardiner twice asked him to move, to no avail. Then he walked up behind V with no warning and kicked him in the back so hard that his head jerked backwards and he fell to the ground. V slowly got up and walked out of the room. Ms. Vander Baan and Mr. Steptoe followed him out and looked at his back. There were no marks. Ms. Vander Baan did not say anything to anyone about this incident until the investigation. She, like all the other D.S.W.'s, was counselled for failing to report the incident when it occurred. 7 Ms. Vander Baan did not tell Cliff Steptoe she had reported this incident to the investigating team, but the team approached him and asked him if he had observed anything on that early December evening. Mr. Steptoe described the incident in much the same way Ms. Vander Baan did. Both witnesses recalled that V was holding a teddy bear at the time. Mr. Gardiner denies that such an incident, or anything like it, ever occurred. Mary Dutton, a D.S.W. at the Centre since 1978, described another incident between Mr. Gardiner and V in the dayroom which occurred on September 26, 1990. Again V was standing in front of the TV, fiddling with the knobs. Mr. Gardiner walked into the room and pushed V with his hands so hard that V was thrown six or seven feet against a wall where he hit his head, then fell down and hit his head again on the floor. Mr. Gardiner then left the room, and Ms. Dutton went to check on V, who appeared uninjured. V was wearing his helmet at the time. Mr. Gardiner denies that such an incident, or anything like it, ever occurred. Mary Dutton also testified as to another incident which occurred on December 4, 1990, just outside the staff office in mid- afternoon. The office is fronted by a counter affording a view out into the hall. To the right are swinging doors leading into the 8 dayroom and to the left are residents' bedrooms. Ms. Dutton was in the office when she heard a commotion, looked up and saw Mr. Gardiner bending over, then rising up holding C in the air by his neck and head. She saw Mr. Gardiner walk with C like this a few steps before he disappeared down the hall toward the bedroom area. Another D.S.W., Lorna Bartlett, who had only been at the Centre since October, 1990, testified that she was present and saw this incident on December 4th. She was in the hall outside the office when she heard someone say: "Look, Ray's got a new way of carrying C". She saw Mr. Gardiner pick C up with his hands under C's chin and on his head and carry him like that with his feet off the ground down the corridor and into the dayroom. She did not initially tell the investigating team about this occurrence because she did not recall it until later when she was speaking with the police in connection with the criminal charges that were laid regarding these incidents. Ms. Bartlett testified that she did not discuss the specifics of what happened with Ms. Dutton at any time. Mr. Gardiner denies that such an incident, or anything like it, ever occurred- Ms. Bartlett told the investigating team about another incident she witnessed on or about November 23, 1990, in the dayroom. Resident P was kneeling and slapping the floor with his hands and making the raspberry noise, as he was often wont to do. Mr. Gardiner got up from where he was sitting and flipped P over 9 onto his back with his foot and then put his knee on P's throat for between 30 seconds and two minutes. When Mr. Gardiner left the room, Ms. Bartlett checked P and found no marks on him. Mr. Gardiner denied this incident, but said that he would sometimes gently flip P over with his hands to interrupt his slapping, raspberry-blowing behaviour. However, he denied ever flipping him over with his foot or placing his knee on P's neck. Union counsel attempted to diminish or destroy the credibility of the employer witnesses through cross-examination and through the testimony of other witnesses, With respect to Mary Dutton's credibility, the union called Diane Deshaw, a long-service D.S.W. who had been working on Elgin 1 North for four years. She testified that during the investigation in January, 1991, Mary Dutton telephoned her and asked if she (Deshaw) was aware of any instances of resident abuse by Ray Gardiner. When Ms. Deshaw responded negatively, Ms. Dutton said that she was "racking her brains trying to remember incidents" of abuse. Ms. Dutton does not recall making such a telephone call. Ms. Dutton testified that she was quite upset over the entire investigation and that she was somewhat afraid of Ray Gardiner's temper. She had heard about what people go through when charged with resident abuse. She admitted that the day after the December 4th incident, she had allowed Ray Gardiner to drive her home from 10 a staff meeting when her car broke down, which union counsel says casts doubt on her testimony about being fearful of Mr. Gardiner. With respect to Cliff Steptoe's credibility, union counsel urges us to find that his evidence lacks inherent probability. Mr. Steptoe testified that he had spoken with Mr. Gardiner OR several occasions about his roughness with the residents, yet he said nothing to Mr. Gardiner at the time of the incident in December when V was allegedly kicked in the dayroom. Why did he wait until Karen Vander Baan mentioned this incident to the investigators to come forward? Union counsel also noted a discrepancy between Mr. Steptoe's original written statement wherein he described a thud in the slab room, but testified to hearing several thuds at our hearing. Also, he mentioned hearing slapping sounds at the hearing but failed to include that in his earlier written report. Mr. Steptoe's evidence about the nature of resident P was in conflict with that of Diane Deshaw. Mr. Steptoe said that P generally liked his bath, but Ms. Deshaw said he sometimes resisted it and it could sometimes take three staff to hold him down. Ms. Deshaw testified that it was common for P to sit on the floor with his hands over his head, while Mr. Steptoe interpreted his appearance in the slab room in that position as an indication that he was fearful. Union counsel called as a witness Mr. Roberts, who supervises a different unit, but who testified that Mr. Steptoe had worked under him at one time and that he had a bad reputation for truthfulness. 11 With respect to the witnesses Vander Baan and counsel did not challenge their honesty but observations may have been faulty and that their the incidents lack inherent probability as well. Bartlett, union suggests their ’ descriptions of Counsel wonders why these people did not report the incidents earlier if they really happened, and why there were no marks on the residents to corroborate the stories. Union counsel highlights slight discrepancies between the earlier written statements and the oral testimony of the witnesses, and between two witnesses where there were two witnesses testifying to the same incident. With respect to the December 4th incident, Mary Dutton saw the grievor carrying C toward the bedroom area, while Lorna Eartlett saw him carrying C in the opposite direction toward the dayroom. We have no difficulty with the credibility of the employer witnesses. Each appeared to be telling the truth to the best of his or her recollection and ability. All were obviously reluctant to testify against a co-worker as evidenced by their initial disinclination to report what they knew to be resident abuse. It was obvious that they had not compared notes in advance of giving their testimony. Any two eyewitnesses to an event will give slightly different versions of it depending upon their differing abilities to observe and recollect. With respect to the incident where C was carried down the hall by his head and neck in different directions according to the eyewitnesses, we have no difficulty concluding that the exercise was carried out more than once, like a game. We say this particularly in view of the comment heard by 12 Ms. Bartlett: "Look, Ray's got a new way of carrying C", heard by her before she saw the carrying incident. It indicates to us that there was more than one such incident. In addition, we do not find anything inherently improbable about the events as described by the witnesses, nor by %he fact that there were no marks on the residents. Ye would not necessarily expect bruises to appear after a shove, a flat-footed kick or a neck and head carry. The knee-on- the-neck incident was obviously designed to restrain, not to choke, and would not necessarily leave a mark. We make no specific finding as to whether or not Mary Dutton made the phone call to Diane Deshaw as alleged, but even if she did, the remark about racking her brains is equivocal and does not require an inference that she was attempting to fabricate stories. There was no evidence of any collusion or conspiracy amongst the witnesses to fabricate evidence in this case, and we' find that there was none.' We found Mr. Steptoe to be a credible witness despite Mr. Roberts' views to the contrary, and we do not discount his testimony because he omitted to mention the slapping sounds in his written report but told us about them at the hearing. His oral testimony was much more detailed than his written statement, which is not surprising. In any event, the slab room incident is not one which was relied upon by the employer to uphold the dismissal because, as freely admitted by Mr. Steptoe, it was based upon speculation by Mr. Steptoe as to what was going on in the slab room and not an eyewitness account. He had the same reluctance as the 13 other witnesses to come forward, but was spurred to do so by the grandmother's kind and trusting words. The residents' conduct sometimes upset Mr. Gardiner, as it did the other D.S.W.'s too, but his response was less controlled and less caring than can be allowed for people entrusted with the care of especially vulnerable people. Having found that Mr Gardiner committed all of the incidents of abuse as alleged, we uphold his dismissal, Dated at Toronto this 25th day of May 1992, A. Barrett, Vice-Chairperson “I Dissent" (dissent attached) P. Rlym, Member D. Montrose, Member GSB 45/91 OPSEU (Gardiner) and Ministry of Community & Social Services DISSENT OF P. KLYM. I dissent from the decision of the majority. As stated in the majority decision, the standard of proof required regarding the alleged acts in a case such as this is one of clear and convincing evidence. two of the four alleged instances of abuse. I turn first to the incident of December 4, 1990, wherein the grievor is alleged to have held a resident in the air by the neck and walked along the hall, holding him in this manner. The evidence of the two witnesses, Mary Dutton and Lorna This standard has not been met by the employer in at least Bartlett is contradictory, let alone being clear and convincing. Mary Dutton's testimony regarding this alleged incident is far from credible considering where she was located in the office. She testified the grievor was in the hall in front of the counter beside the door to the dayroom. that she saw the grievor bend over and pick up the resident by the neck and carry him down the hall towards the resident's room. In cross-examination, she admitted she did not see the grievor pick up the resident by the neck she only saw the grievor bend over. She said in direct examination Lorna Bartlett testified before us that the grievor was down the hall with the resident in front of the resident's room. She stated that the grievor picked up the resident and carried him toward the dayroom and on in through the doors. Both these versions can't be correct. Also, there was not the slightest evidence presented to us that there were two or more incidents that day regarding the grievor carrying the resident in the air by the neck. simply a hypothesis suggested to us by the employer's counsel in her closing submissions in an effort to explain away the contra- dictory evidence. This was It is difficult to accept that the evidence establishes that the alleged incident of abuse occurred. -2- Lorna Bartlett did not even remember it when interviewed in late January 1991. to her attention some time later. the resident down the hall in front of the resident's room. she did not even remember this incident when she talked on the telephone with Diane Deshaw. In fact, she testified that when upset ''I can't recall my own name". and convincing evidence that this alleged incident occurred. in the credibility of Mary Dutton's evidence. By this I am not inferring that she was lying to the Board; but I found serious problems with her recollection of events and much inconsistency in her testimony throughout. Therefore, I do not find her testimony regarding the alleged pushing of a resident with excessive force on September 26, 1990, to be reliable. I find that it falls far short of the standard of being clear and convincing. Regarding the other two incidents, I do not fault the finding that there may have been excessive physical force used, based on the evidence presented to us. appropriate penalty. reinstate the grievor to an appropriate position that does not involve direct responsibility for residents in a facility. She only recalled it when it was brought Mary Dutton could not possibly have seen the grievor and Also, I would conclude without hesitation that there is not clear Similarly, from the entire testimony, I found serious flaws On the basis of the above, I find that discharge is not an I would exercise our rights under Section 19.4 of CECBA and I P. Klym '