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HomeMy WebLinkAbout1988-0813.Kowal.90-11-02 ON'RIO EMPLOYS DE ~ COURONN£ CROWN EMPLOYES DE L 'ONTARIO GRIEVANCE CpMMiSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WESK ~RONT~ ON~ MSG 1~- SUt~ 2100 · TELEPHONE/~L~PHONE 1~ R~ DUN~S OUESK ~RONTO, (ON~ MSG 1~- BUR~U 2~00 ~1~ ~8-0~8 813/8~ IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kowal) 8rievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: R. Verity Vice-Chairperson M. Lyons Member F.. Collict Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Brown EMPLOYER Law officer Crown Law office Civil Ministry of the Attorney General HEARING: April 26, 28 1989 October 18, 19, 23 1989 July 4, 5, 6 1990 DECISION The grievor, Donald Kowal aged 44, has been employed by the Ministry as a staff pharmacist at the Kingston Psychiatric Hospital since August t976. On July 26, 1988 his employment was terminated by the Hospital for professional misconduct. The reason for dismissal was expressed in writing by then Acting Admin'istrator W. A. Barnett: On April 6, 1988,'for reasons known only to yourself, you deliberately switched medications whil9 working within the confines of the Pharmacy Department. Such professional misconduct could have aOversely affected the care and treatment of a patient(s) of this Hospital. Mr. Kowal alleges dismissal without just cause contrary to s. 18(2)(c) of the Crown E~ployees Collective Bargaining Act, R.S.O. 1980, c. 108. The remedy sought is reinstatement with full remedial redress. The grievor was subsequently charged with the criminal offence of "mischief" contrary to s. 387(4)(a) of the Criminal Code of Canada. Following a guilty plea, he was convicted in November, 1988 in the Provincial Court (Criminal Division) at Kingston of unlawfully committing mischief "by wilfully damaging a medical prescription". On February 27, 1989, he was given a suspended sentence and placed on probation for two years and ordered to perform 100 hours of community service within nine mo~ths. In addition, the grievor was charged by his self-governing body, the Ontario College of Pharmacists, with professional misconduct under s. 130(3)(~a) of the Health Disciplines Act R.S.O. 1980, c. 196. In May, 1990, at a hearing before the Discipline Committee of the College, the grievor admitted guilt. In written reasons dated May 23, 1990, the Discipline Committee imposed a one year li.cence suspension. However, the sentence was "suspended indefinitely" upon the following terms and conditions: 1) that Mr. Kowal contihue to be treated by a psychiatrist until such time as the psychiatrist deems treatment unnecessary; 2) 'that Mr. Kowal ensure that his treating psychiatrist report to the Registrar of the Ontario College of Pharmacists, as the Registrar may ~equest. The report is to include but not be restricted to, Mr. Kowal's attendance at therapy and his compliance with prescribed medication regimen; 3) in the event that Mr. Kowal does not resume pharmacy practice by April 5, 1991, he must successfully piss t~e oral and written portions of the Pharmacy Practice Exam of the Ontario College of Pharmacists. The facts are both unusual and bizarre. The pharmacy at Kingston Psychiatric Hospital was placed under police surveillance in early March 1988 as a result of an increase in the number of medication dispensing errors. The evidence established that in February the~e were eight medication errors emanating from the pharmacy (Exhibits 9 and 10). Similarly, in March there were seven such pharmacy errors. According to hospital records, the pharmacy error rate varied from 0 to 2 per month prior to this period. On April 6, 1988 at approximately 10:00 to 10:05 a.m. the grievor, working alone in the pharmacy, was observed by Kingston Police Sergeant Larry Edwards (and recorded on videotape) removing the contents of a filled prescription and replacing it with another medication. Subsequent investigation established that the grievor had removed the contents of a bottle containing tablets of 200 mgs. of Tegritol and had replaced it with tablets containing 250 mgs. of Apo-Primidone. Both drugs are anti-convulsants used in the treatment of seizure disorders. The refill prescription for Tegritol had been filled by Pharmacy Director Douglas Down and verified by Laboratory Technician John Golka. The Union admitted the medication switch and acknowledged that the grievor was conscious of what he was doing on the day in question. However, the grievor maintains that he has no recollection of the medication switch but readily admits, after viewing the video tape, that it ~id occur as alleged by the employer. Having repeatedly discussed the incident with psychiatrist Dr. R. J. McCaldon, the grievor now speculates that he made the medication switch to discredit his super¥isor, Douglas Down. Kingston General Hospital pharmacist Ronald Koob investigated the incident shortly after it occurred. He identified the medication switch and testified as to its significance. At the hearing, Mr. Koob described Tegritol as a brand name and Apo-Primidone as a generic drug, both of which are anti-convulsants used in the treatment of generalized seizure disorders. The thrust of hisLevidence was that a patient might respond well to one drug and not to the other. He described the risk.of switching medications in this case, as loss of seizure control (effectiveness) and toxicity (risk of side effects). Mr. Koob testified that any medication switch could produce "unpredictable~side effects" and. that the switch from Tegritol to Apo-?rimidone could have a number of side effects su'ch as dizziness, drowsiness and disorientation. Douglas Down became Director of Pharmacy at Kingston Psychiatri~ Hospital on August 17, 1987 succeeding Harold Jamieson. The grievor had been Acting Director roy a brief period pri~r to Down's appointment, but was unsuccessful ~n the competition for the full-time position. Mr. Down testified that initially he detected a conspiracy of silence in the four person laboratory, primarily from Mr. Kowal and Lab Technician Norm Dunham. From November 1987 Onward, Mr. Dunham worked half days and by February 1988 he left on sick leave. With the passage of time, Technician John Golka became more supportive of Mr. Down. However, there was always a high'degree of tension between the grievor and his supervisor. On December 22, 1987, Mr. Down gave the grievor a written reprimand for leaving work 10 minuteslearly. Mr, Down maintained that the issue of working hours had been discussed at a staff pharmacy meeting and that he had verbaqly warned the grievor for leaving work early on November 5, 1987, The grievor denied both allegations. The evidence established that the grievor was incensed by the perceived unfairness of this disciplinary response and went to great lengths to validate his position. In any event, the written.reprimand was grieved and still remains unresolved despite the employer's effort to substitute the reprimand with a non-disciplinary letter of counselling. Mr. Down testified that in February, 1988 he became alarmed at the degree of tension in the pharmacy which affected his ability to concentrate. According to his evidence, he considered resigning because of the tension and the' number of medication errors attributable to him. In February, Mr. Down changed his procedure for fiiling prescriptions by placing the "DIN" number on the back of each prescription he filled. John Golka has been a pharmacy technician at Kingston Psychiatric Hospital since June 1983. According to his evidence, the grievor was not at all helpful to Supervisor Down and was'very critical of his appointment as Director. Mr. Golka testified as to a negative conversation with the grievor concerning D~uglas Oo~n, at some unspecified time, when the grievor told Golka "don't show him nothing, don't tell him anything, let him learn on his own, drive him crazy". The grievor denied any. such conversation. Mr. Gotka signed a statement prepared by the grievor to the effect that contrary to management's position, the issue of leaving work early had not been discussed at a staff meeting prior to the grievor's written reprimand in December 1987. At the hearing, he maintains he didn't read it and would not have signed it if he had done so. On April 29, following the incident in the pharmacy, the.grie¥or consulted Kingston Psychiatrist Dr. R. J. McCaldon, initially for a second psychiatric opinion. Dr. McCaldon practices psychiatry on a full-time basis, part-time as a penitentiary psychiatric consultant and ~art-time in private practice specializing in forensic psychiatry. He assumed full responsibi.lity for the grievor's treatment in July 1988 and continues to treat him on a regular basis. From discussions with the grievor and with full knowledge of the events of April 6, 1988, Dr. McCaldon is satisfied that the grievor's memory lapse,~ in failing to recall the medication switch, results from "psychogenic amnesia" which tends to occur where an individual is in a highly stressed emotional state and suffers from a "psychoneurotic condition". He testified that the shock of being charged criminally precipitated the psychogenic amnesia. Dr. McCaldon described psychogenic amnesia as a loss of memory for a period of time or for some. event that took place during that time. 'However, the psychiatrist candidly acknowledged that the other explanation is that the grievo~ is lying about his failure to recall. He also admitted thQre was no way of conclusively proving either explanation, but that he had formed an opinion based on his.experience. Dr.'McCaldon testified that the grievor's primary diagnosis is ~Igeneralized anxiety disorder". He made that conclusion on the basis of the grievor's medical condition in late April 1988; namely, high blood pressure, accute anxiety and depression accompanied by "slight spaciness~!. He recalled 'that prior to the incident, the grievor was anxious about a cyst on his scrotum which had rapidly increased in size and which was due to be surgically removed. Dr. McCaldon explained that individuals with a psychoneurotic condition don't lose complete touch with reality but have ma!adaptive responses to the stresses of life. He testified that~ in his opinion, the grievor was suffering a great deal of anxiety and depression on April 6, 1988. However, despite Mr. Kowal's recollection of being in a "stressed out trance" on that day, Dr. McCaldon concludes that the grievor knew what he was doing. In cross-examination, the psychiatrist admitted treating patients who suffered anxiety as a result of the laying of criminal charges. However, in his opinion', the grievor's anxiety arose in large measure prior to engaging in criminal activity. The psychiatrist explained that his role was to look at the individual and his perception of events as the key to understanding his reaction. Dr. McCaldon concluded that the grievor's perception of being overworked and overstressed is "a fairly accurate perception". He reviewed the §rievor's personal history from childhood and testified that he is intensely shy, socially inactive, sensitive to a number of perceived physical problems, including an overbite problem which was surgically corrected, at least in part, in t980. The grievor appears to have had a successful career as a pharmacist at Kingston Psychiatric Hospital until the appointment of Douglas Down as Director in August, 1987. In cross-examination, the psychiatrist described the grievor's two main concerns with the workplace under Mr. Down - the lack of practical help from the Director in filling perscriptions contrary to the practice of the previous Director, and the unfairness of the written reprimand for leaving work early. The grievor has undergone extensive psychiatric treatment over a period of two and one-half years including therapy, 'relaxation training and medication to control anxiety. Dr. McCaldon testified that the grievor has co-oPgrated fully and has responded positively to the psychiatric treatment. In particular, the' grievor fully realizes that his acti'ons were reprehensible. The ~sychiatrist is of the opinion that it would be "most unlikely" that the misconduct would be repeated and that the grievor is now alert' rational, more self-confident and able to deal effectively with stress. However, Dr. McCaldon stated that despite the passage of time, the grievor still suffers from generalized anxiety disorder but to a lesser degree and that continued treatment is necessary. According to his evidence, the medication the §rievo~ takes would not affect his ability tO function as a pharmacist and that he is now ready, willing and able to return to the workplace. Probation and Parole Officer Tom Kennedy, testified on the grievor's behalf. Mr. Kennedy interviewed eight individuals, including the ~rievor and Dr. McCaldon in preparing the pre-sentence report for the criminal Court. In. particular, he received favourable accounts of the i§rievor's work as'a pharmacist from the two pharmacy technicians at Kingston Psychiatric Hospital. He concluded that the grievor would respond favourably to pnobation and that he was genuinely ashamed Of his actions. Based on his 28 years of experience as a parole officer, Mr. Kennedy testified that it was unlikely that the §rievor would be a recidivist. 'The grievor graduated in pharmacy "with distinction" from the University of Saskatchewan in 1973. He testified at some length as to his medical history, his )ersonal history and subsequent employment with the Ministry. There was no prior disciplinary record until the written reprimand of December, 1987. The grievor denied the negative comments about the new Director and maintains that he really didn't want the position on a full-time basis. He alleged that work at the pharmacy increased when technician Norm Dunham worked part-time beginning in November, 1987 and again in February, 1988 when Mr. Dunham left permanently on sick leave. The grievor maintains that by early 1988 he was "totally fatigued both mentally and physically", that he suffered from insomnia and migraine headaches and had difficulty concentrating. He went on sick leave for 11 working days in March allegedly as a result of anxiety and depression. He maintains that he suffered "emotional terror" when he received hospital admission papers for removal of a large cyst on the scrotum (the size of a lemon) on March 31. The grievor maintains he cannot recall the medication switch on April 6 but is satisfied that it . occurred. He. now speculates, "I did it as a retaliation for the reprimand given to me on December 22". However, he alleges that he would have "no problem" working with Mr. Down and Mr. Golka in the event of a reinstatement. The grievor testified at length as to his extensive efforts at rehabiqitation and that he no longer needs to resort to "abhorrent behaviour" to address work related or personal problems. The Employer argued that the grievor's conduct was a deliberate act designed to discredit the supervisor and that such a breach of trust effectively destroyed the employment relationship. Mr. Brown contended that in balancing the various interests, the public interest should prevail and. accordingly there was no proper basis for reinstatement. On the evidence adduced, Mr. Brown requested a finding that the grievor was not a credible witness. For the Union, Mr. Lukasiewicz contended that the Employer's argument ignored the fact' that the grievor suffered from a recognized illness. He maintained that the surrounding factors and rehabilitative treatment justified a finding that dismissal was an excessive response and that the ~oa~d should exercise its jurisdiction under s.19(3) of the Crown Employees Collective 8argainin~Act to substitute a lesser penalty. In support, the Board was referred to the following authorities: Re Toronto East General Hospital Inc. and Service Employees International Union (1975), 9 L.A.C. (2d) 311 (Beatty); Re Goodyear Tire Inc. and United Rubber Workers, Local 232 (1~85), 18 L.A.C. (3d) 65 (~urkett)~ Re The Municipality of Metropolitan Toronto and Metropolitan Toronto Civic Employees Union, Local 43 (unreported Award'of Arbitrator Kennedy dated December 23, 1988); Re Molsonts Brewery (Ontario) Ltd. and United Brewery Workers; Local 304 (1983), 12 L.A.C. (3d) 313 (Adell); and OLBEU (D. Hawes) and Liquor Control Board of Ontar'io #329/84 (Brent). In our'view, none of these authorities are particularly helpful in the resolution of the issue at hand. The grievor's actions on April 6,~ 1988 in switching medications was a deliberate act 'designed to discredit his supervisor, Pharmacy Director Douglas Oown. ~ndeed, while switching medications, the §rievor was observed on police video tape going to the doorway of'the pharmacy on three separate occasions and wiping the container with a clOth after he had made the medication switch. FortunatEly, no harm was done to a patient. It appears from the evidence that the ? grievor had no intent to harm a patient. Undoubtedly, the motive was to discredit the supervisor. Notwithstanding the fact that the Employer has based its case on the single incident of April 6, 1988, the Board has given attentive scrutiny to the medication incident reports for the period January 1 to March 31, 1988 prepared by the hospital and entered as Exhibit 9. The substance of the reports may be briefly summarized. There were 17 medication incidents or dispensing errors during this three month period. According to the hospital report the clinical significance ranged from "none" to "minor" except for one incident on March 3, 1988 which was stated to be minor/major. It is proper to note that from Exhibit 9 two of the dispensing errors attributable to the pharmacy occurred in March during the grievOr's 11 day absence. Although the Board has considered these medication incidents, it bears reiteration that the Employer based its case solely on the incident of April 6, 1988. The grievor, as is admitted, is §~ilty of professional misconduct and a serious employment offence, particularly in the context of the grievor~s employment at a public psychiatric hospital. There can be no doubt that his actions were reprehensible. The Employer and the public have the right to expect that a pharmacist will carry out his duties with integrity, to the best of 'his ability, and in a professional manner. The key element in the employment relationship in this case is mutual trust and confidence. Obviously, the grievor's actions fa~l far short of that mutual trust. The potential for damage to Mr. Down, to the Hospital, and to the patient involved was real. We do not underestimate the force of Mr. Brown's submissions on behalf of the Employer. Credibility is a crucial factor which must be addressed. In making that assessment, we ~re mindful of the test set out by O'Hallaran J.A. in Faryna ¥. Chorny, [1952]', 2 D.L.R.(B.C.C.A.) 354 at P. 357: The credibility of interested witnesses, particularly in cases of conflic: of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. 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, A~plying that test in the instant matter, the panel finds that the grievor testified in a candid and straightforward manner. Although we cannot accept all the details of his testimony, we accept the thrust of his evidence as to his emotional state at the critical time. Given the passage of time between the incident and. the hearings before this board, it is not surprising that there ar6 inconsistencies between the witnesses as to some of the details.' We accept Mr. Kowal's testimony of a long standing neurosis and his evidence of accute anxiety and depression on April 6, 1988. We accept his evidence that the full-time absence of technician Norm Dunham commencing in February 1988 made the workload more onerous. That finding of fact is supported inferentially by evidence that currently there is a substantial increase in personnel employed at the pharmacy. We are satisfied that the whole incident is so out of character that the grievor finds it incredible that he made negative comments about Mr. Down and the position · of director. As to the testimony of John Golka, we regard it with reservation. Clearly, Mr. Golka's demeanour was indicative of a dislike for the grievor. In particular, Mr. Golka's pronounced inconsistent testimony, initially in support of the grievor on the remand issue and later in opposition to him, reinforces our reservations about the weight to be given to his testimony. It is difficult to understand why t~e'grievor, an intelligent man and a professional, would have acted as he did rather than to seek professional help. Although Dr. McCaldon indicated that the grievor knew what he was doing at the critical time, nevertheless ~he psychiatrist testified that the incident occurred at a time when the grievor suffered from severe anxiety and depression caused by a recognized illness known as generalized anxiety disorder. Further, Dr. McCaldoh indicated, that in his opinion, the grievor's inability to recall the incident was genuine and resulted from psychogenic amnesia. Dr. McCaldon was fully aware of the salient facts surrounding the incident. In making his assessments and drawing his conclusions, he relied in large measure on what the grievor told him. The circumstances and assumptions on which Dr. McCaldon relied ~n forming his opinion are the facts subsequently found by the Board. We accept ~r. McCaldon's evidence in its entirety. To put it simply, this man committed the m'isconduct when he was emotionally'ill. It is true that the psychiatrist ~estified that generalized anxiety disorder affects one out of six persons and in that sense can be said to be a common health problem. It is, however, the degree of the illness that is significant in this case. Moreover, we accept the grievor's evidence that he was off work on account of anxiety for 11 days (March 1t to March 25) preceding the incident of April 6, 1988. The fact remains that after 2-1/2 years of treatment, including medication, the grievor still suffers from the illness which is in remission as a result of treatment. While the illness does not excuse the grievor's conduct, it does explain and gives understanding to the circumstances surrounding the incident in issue. In this particular case, we find that the Employer!s decision to dismiss the grievor on July 26, 1988 was justified on the facts as known at the t~me. However, the Union's case directs itself exclusively to the Board's remedial authority under s.'19(3) of the Crown Employees Collective Bargaining Act. Section 19(3) of the Act reads as follows: Where the Grievance Settlement Board determines that a 'disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances.. Clearly, s.19(3) of the Crown Employees Collective Bargaining Act confers upon the Grievance Settlement Board broad remedial powers to substitute a lesser penalty "as it considers just and reasonable in all the circumstances". We recognize, of course, that the right to substitute a penalty is' not an unfettered right, but rather must be based on a finding, judicially arrived at, that a particular disciplinary response is excessive. In Re The Queen ~n Right of Ontario - 16- and Grievance Settlement Board (1980), 27 O.R. (2d) 735, the Ontari~o Divisional Court made it clear that thc Board's remedial authority to substitute a lesser penalty may be exercised on a finding of just cause for dismissal where, in the opinion of the Board, dismissal is an excessive response. On the Board's remedial authority'under the Ac__~_t, Mr. Justice Osler states at po 744: It is plain that under s.17(2)(c) (now 18(2)(c)) of the Crown Employees Collective Bargaining Act, 1972 of Ontario an employee may file a grievance claiming that he has been disciplined or dismissed or suspended without just cause. It is equally plain that s.18(3) (now 19(3)) gives the grievance settlement board power to determine that a disciplinary penalty or dismissal is excessive and, in such case, further power to substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. · If it is given the power to determine what is not only just but also reasonable, it must surely be granted the power under that language'to determine that a dismissal is not only just but, in the circumstances~ excessive. Is this the appropriate case for the BOard to exercise its discreti.onary authority under s.i9(3)? In addressing that issue, the key. question is whether dismissal is an excessive response in all the circumstances. The distinguishing feature of this case, we th~nk, is that the grievor's conduct has been analyzed by a highly qualified psychiatrist who is satisfied that the incident occurred in the context of an emotional illness. There are various mitigating factors that can be identified in these unique circumstances: The grievor's emotional ill health at the time of the misconduct~ (2) The grievor's frank acknowledgment of his .misconduct; The length of employment and the past record of the grievor; .- · (4) The unlikelihood that the grievor would.return to anti-social. behaviour with continuing psychiatric assistance; and (5) The economic impact of dismissal in view of the.grievor's age and personal circumstances. The list is not exhaustive. Having.had the benefit of observing the demeanour and hearing Mr. Kowal, we are lead to the conclusion that the ,£mpu~ned act was totally out of character and very likely an isolated act induced .by his illness.. It is apparent that the grievor is a shy, reserved and an intros'pective individual. We quote and adopt Arbitrator Kennedy's rationale'in the Metro Toronto case, supra, at p. lO: In exercising a jurisdiction of mitigation, we must be satisfied that before we interfere with the penalty, the restoration of a viable employment relationship is not only feasible but likely. in the instant matter, as already noted, the grievor has established a viable employment relationship with the Ministry from I976 to the date of this unfortunate incident. He had an unblemished disciplinary record at least until the written regrimand for leaving work ten minutes early on December 22, 1987. Clearly, the grievor has performed satisfactorily for an extended period of~time and his ability to work with others was never an issue until Mr. Down's appointment as Pharmacy Director. In sum, it is the totality of the employment relationship that must be considered. With hi~ illness under control, given the current situation of the grievor's full understanding of his emotional health, his positive progress at rehabilitation and the fact' that the risk of recurrence of such misconduct is quite remote, we are satisfied that a viable employment, relationship can be established to the mutual benefit of both parties, It was legitimately argued that the matter of public interest was the prevailing issue before the ~oard. In this connection, it is of some interest to note the approach of the Ontario College of Pharmacists to a not dissimilar issue. It may be reasonably inferred from the disciplinary proceedings of the College that it acted cautiously, considerately and mindful of the standards of the profession and the protection of the public interest. We read the penalty imposed by the College in the belief that it regarded the offence as serious, but not of a degree that it would exclude just and equitable mitigation. The College recognized the matter was of importance not only affecting the grievor's way of life but the very means of his life. Under s.130(§) of the Health Disciplines Act, the Discipline Committee had the authority to revoke the grievor's licence to practice. It chose not to do so. We think it manifest that the Discipline Committee approached the matter of penalty under the Health Disciplines Act as it was required to do, but also kindred to the spirit implicit ~.n s.19(3) of the Crown Employees Collective Bargaining Act. That is far from saying that the Board regarded the. College's decision as a precedent for this Board, The Ohtario College of Pharmacists and the Grievance Settlement Board have separate and distinct responsibilities under different legislation. This Board arrived at its decision on the facts .and law independent of the conclusions of the College. Viewing the evidence before us in all its cumulative significance we think it points with force to the conclusion that discharge is an excessive penalty. We find that a case for mitigation within the .context of s.19(.3) of the Crown Employees Collective Bargaining Act has been made out by the facts. In all this, we are not forgetful of the competing interests of the parties, the public interest, the gravity of the misconduct and the need for a deterent to others from engaging in similar misconduct. The next question is the manner in which mitigation is to be accorded to the grievor. In our view, rather than discharge, a period of substantial suspension would be just and reasonable in all the circumstanc'es. However, we cannot ask the Employer to reinstate the grievor at Kingston Psychiatric Hospital. In our opinion, to reinstate the grievor as a staff pharmacist at this Hospital at this time would not be condusive to the re-establishment of a mutually supportive employment relationship. - 20 - in the result, this grievance is allowed and the Board will exercise its authority under s. 19(3) of the Crown Employees Collective BarGaining Act to substitute a penalty that is just and reasonable in the circumstances. For the dismissal we substitute the penalty of suspension to the date of this award. We direct that the grievor shall be reinstated as a staff pharmacist with the Ministry of Health at the same level he occupied at the time of his dismissal and at a location to be chosen by the Ministry. We further direct that there will be no loss of seniority but no entitlement to compensation during the period of suspension. Further the reinstatement is made conditional upon the following terms and conditions: (1) That the grievor will continue to be treated by a psychiatrist until such. time as the treating psychiatrist deems treatment unnecessary; (2) That the grievor ensure that the treating psychiatrist report to the Ministry of Health and to the Ontario College of Pharmacists at such time as the Ministry or the Registrar of the College may request, The report shall include, but shall not be restricted to, the grievor's attendance at therapy and his complete compliance with prescribed medication ~regimen. In the result, the Employer shall make a prompt and reasonable start towards full compliance with this decision and shall proceed to take such proceedings and/or actions consistent with the decision as are necessary to reinstate, with all deliberate speed, the grievor as a staff pharmacist with the Ministry of Health at.the same level he occupied at the time of his dismissal and at a location to be chosen i~y the .Ministry subject to the grievor forthwith filing a written undertaking: (al to continue to be treated by a psychiatrist until such time.as the treating psychiatrist deems treatment unnecessary; and (b) to ensur6 that the treating psychiatrist report to the Ministry of Health and to the Ontario College of Pharmacists at such time as the Ministry or the Registrar of th=e College may request ~nd that the report shall include, but shall not be restricted to the grievor's' attendance at therapy and his complete compliance with prescribed medication regimen. The Panel shall retain jurisdiction in the event of any difficulty encountered in the implementation of this award. DATED at Brantford, Ontario, this 2,d day of November DISSENT R~ G.S.B. #813/88 (KOWAL) This Member dissents with the award in this case. The rationale for the substitution of a penalty of suspension as opposed to discharge is that grievor Kowal was '.'emotionally ill", at the time of the incident. It is clear that a finding of unacceptable behaviour was determined by the Board and it is for this reason that a suspension of approximately two and ~ne-half years was assigned. H6wever, the Employer terminated Mr. Kowal for just cause; and it is the position of this Member that the response of the Employer to the incident of April 6, 1988 skould stand. This case is complex. To determine the essence of this dissent, .one must examine the evidence closely, particularly as related to the issue of credibility which is basic to the dissent in this matter. SPecific evidence adduced before the Board from Dr. McCaldon, was as follows: 1. 'Dr. McCaldon is the grievor's psychiatrist. He first examined him on April 29, 1988, 23 days after the April 6, 1988 incident. Hence, his diagnoses of General Anxiety Disorder and Psychogenic Amnesia were retrospective. 2. The only information he had concerning circumstances at the Kingston Psychiatric Hospital was from the grievor himself, Dr. Scott who simply referred Mr. Kowal to Dr. McCaldon but who did not treat him, and from a police officer who gave evidence at the court proceedings about the incident itself. 2 At no time did Dr. McCaldon enquire into the grievor's medical history and the grievor testified that he never had been diagnosed as having anxiety disorders in the past and that he never had been treated by a psychiatrist. ~r. McCaldon stated that his role in treating the grievor was to understand his mind in relation to the way he functions. Hence, the only information he had concerning the events and circumstances which allegedly gave rise t© the grievor's anxieties 'were from the grievor himself. 3. Dr. McCaldon stated in evidence that there could be another reason why the grievor could not remember the subject incident. He stated that he simply could be lying; and that he (Dr. McCaldon) could not prove whether he was or was not. The testimony of Dr. McCaldon was that the Psychogenic Amnesia was brought, about by a very severe shock, -- the criminal charges brought against M~. Kowal. Inasmuch as this occurred after the incident, it is a non-issue, 6ther'than the fact that it deprived the Employer of the ~opportunity to examine the grievor on the incident. Accordingly, we are left with the diagnosis of General Anxiety Disorder' which, as stated by Dr. McCaldon, is a psychoneurotic tendency which affects one in six people, to varying degrees. On behalf of the grievor, it was argued that the incident of April 6, 1988 was brought about by the General Anxiety Disorder diagnosed retrospectively by' Dr. McCaldon, as related to a number of concerns being experienced by the grievor. ~hey were as follows: 1. A dispute'with his Directgr concerning a written reprimand; 2. Work load; 3. A physical/medical problem; 4-. Personal problems of a social, and mental nature. Let us examine these concerns. 1. Dispute with his Director a) The written reprimand had been grieved. It was proceeding in the grievance procedure. Mr. Kowal had used the procedure during the fall of 1987 and had been successful in resolving his prior dispute. (As stated at page 6 of the award, the current matter remains unresolved, despi~e the Employer's effort to substitute the reprimand with a non-disciplinary 'letter of counselling.) b) The written reprimand which was the subject of the grievance had occurred in December of 1987. The subject incident was April 6, 1988, more than four months later. c) In cross examination Mr. Kowal stated that the fact he did not get the position of Director of Pharmacy in the job competition of August, 1987, did not affect his relationship with Mr. Down. He stated it was-"never an issue". d) In cross-examination, Mr. Kowal stated that the dispute he had with Mr. Down was that - "He (Mr. Down) just didn't follow policy." Essentially, Mr. Kowal did not deny that he had left work early in the past. His difference with Mr. Down was that he should receive two' verbal r'eprimands prior to the receipt of a written reprimand. 2. Workload a) Mr. Kowai conceded that he was never required to work overtime (in 1987 or 1988); 4 b) He stated that he did not bring to the attention of his Director his feeling that the work load was excessive; C) He stated that he accommodated the work load by prioritizing work assignments; that is, more time was spent on filling prescriptions and less. time was spent on consultation; d) Mr. Golka testified that -at times they were bu~y in the Pharmacy and-that at other times ~hey were not. He did not believe work load to be a problem; e) Mr. Go!ka testified that Mr. Kowal never complained about the work load in the pharmacy and that, in fact, Mr. Kowal purposely slowed down-after Mr. Down's appointment. 3. PhysiCal/Medical Problem " Mr. Kowal had a physical/medical problem which was"of some concern to him. NO medical evidence to this effect was. presented at the hearings. ~ 4. Personal problems of a social and mental nature a) Mr. Kowal claimed a variety of social, family and physical concerns tha~ had manifest themselves as an inferiority complex' and which were stressful to him. He stated that he had never sought treatment for his problems, in this respect until after the incident on April 6,. 1988; b) He had a successful record of employment with the Kingston Psychiatric Hospital over more than 11 years of employment; c) He had graduated with Distinction from the Pharmacy program at the University of Saskatchewan in 1973, just narrowly missing grades which would.have given him. the designation of "Great 5 Distinction"; d) In 1980 he had undergone corrective orthodontia, to adjust .an overbite which improved his physical appearance and, hopefully, his self-esteem. The Board has been asked to conclude that the dispute with Mr. Down, the alleged heavy work load, medical and personal stress problems culminated to precipitate the incident on August 6, 1988. However, an analysis of the above indicates the following: 1. Mr. Kowal had minimal cause to abandon the grievance procedure and to retaliate with intent to discredit Mr. Down. He had been successful in the-past using the procedure and with the evidence presented, there was no reason to believe he would be any less successful in khe future; in fact, his management had proposed that th~ subject reprimand could be assigned as a non-disciplinary counselling letter as a possible resolution to the grievance. 2. The work load complained of was managed, through Mr. Kowal's own testimony, quite effectively; 3. The physical/medical problem experienced by Mr. Kowal could have been a reasonable source o.f concerD, and stress to him; 4. Mr. Kowal had experienced a number of successes and self-esteem reinforcements in his life and work experience and he had never found it necessary to seek psychiatric assistance for his alleged problems until after the su~'~ject incident occur'red on April 6, 1988. Mr..Kowal's psychiatrist has conceded that it ks a possibility that his patient has engaged in a conscious fabrication in this case. What, then, can be said with reference to Mr. Kowal's credibility? 6 1. Job Competition He applied for the position of Director of Pharmacy~ He was Acting Director and, possibly, was the logical candidate for the position. However, Mr. Down was the successful candidate. Mr. Kowal, in evidence, stated that he applied for the job but then decided he did.not want the job. He stated that he went for the interview, nevertheless, "because it's good. experience." He stated further that the fact he did not get the job did not affect his relationship with Mr~ Down.and that, in fact, it was "never an issue." 2. Relationship with Mr. Down a) Mr. Down testified that from "Day 1", he .did not get the feeling that he was particularly welcome. He testified that when he asked questions, he was met with silence~ especially 'from Messrs. Kowal and Denham. Mr. Down was so concerned he 'referred his concerns to Jean Edmonds, his supervisor. b) Mr. Down further testified that Mr. Golka had'confided in him that he (Golka) had been pressured not to tell him where things were; that Golka was "kind of disgusted", he wanted to help, but requested that Mr'. Down s~ould not put pressure on him (Golka) in the presence of the others. c) Mr. Down testified that 'the written reprimand to Mr. Kowal really made no difference in their relationship. He stated - "Mr. Kowal didn't speak to me before (the reprimand of November, 1988), and he didn't speak to me afterl" d) Mr. Kowal's testimony with reference to his relationship with Mr. Down was different. He stated that he gave Mr. Down "the same orientation to the Pharmacy that he had received from~Mr. Jamieson", (the prior Director of Pharmacy); and that he 7 answered any questions directed to him by Mr. Down. e) When asked how he would find working with Mr. Down in the future should he be returned to work, Mr. Kowal stated that - "There would be no problem. It might be a formal relationship!" 3. Testimony of Mr. Golka Mr. Golka testified as. follows: a) That when Mr. Down would say "hello" to Mr. Kowal each morning, the latter woul~ not respond; b) That Mr. Kowal encouraged him at coffee breaks to file a grievance concerning hours of work. Mr. Golka responded that this was a problem between him and Mr. D6wn. Mr. Kowal stated 'that, "if you're not with me, you're against me"; c) That Mr. Kowal slowed down his work performance after Mr. Down took on the position as Director of the Pharmacy; d) That Mr. Kowal stated that the people on the selection committee to select the.new Director of Pharmacy were "absolute garbage"; e) That Mr. Kowal stated he would only show Mr. Down once how .to get into the vault; and when he had difficulty'getting in, - he, {Mr. Kowal) joked about it; f) That on one occasion, Mr. Kowal had stated, "don't show him anything, do as little as possible, drive him crazy". In testimony Mr. Kowal denied this statement. 8. g) When asked in direct testimony whether he would have ~ifficulty working with M~. Golka should he be returned to work, Mr. Kowal responded that. this shouid present, "no real problem". 4. Stress caused by Work Load Subsequent to February 2', 1988 when Mr. Denham went on long term disability, Mr. Kowal, in direct testimony, stated that the work load was "becoming impossible" He stated that Mr. Golka also was complaining about no replacement for Mr. Denham and that Mr. Down did not seem to help. Regardless of the above, Mr. Kowat stated in cross-examination that he did not have to work any extra time in 1987 or 1988 and that no one requested him to work.beyond normal working hours at'any time. He further testified that by adjusting priorities in the pharmacy that he and his colleagues~ were able to accommodate the workload. Also,'and'regardless of the alleged stress fr6m the perceived work 16ad, Mr. Kowal s~ated that he did not deem it essential to discuss the heavy work load With his Director, Mr~ DO~n~ - "because I did not think it proper to approach him on it", - "I'd just feel uncomfortable telling the Direct0'r how to run the Department", - "We didn't talk about it. He didn't seem to be available to discuss it". ~ 5. Stress and Behaviour at Time of Incident The testimony of Sergeant Edwards was'that Mr. Kowal was somewhat flushed and excited on April 6, 1988 when the sergeant entered and remained in the pharmacy immediately after videotaping the incident. From-the evidence, Mr. Kowal's behaviour in speaking with Sergeant Edwards was rational and reasonable under the 9 circumstances (re whether or not he should contact his union representative, whether or not he ~ould use the telephone, or leave the area to utilize the washroom facilities,, etc.). 6. Videotaped Behaviour How ration'al was the behaviour of Mr. Kowal during the period of psychogenic amnesia, the period that he contends he cannot remember? During the period when he was videotaped and when he switched the medicines, Mr. Kowal was alone. While switching the medicines, he went to the doorway of the pharmacy on three separate occasions, and he wiped the container with '~ cloth after he had made the switch. Even Dr. McCaldon.'deduced that this was an act to try to remove evidence. In cross-examination, when asked about the potential danger from switching the drugs, Mr. Kowal stated that he could "speculate" about the danger. He also stated - "I knew the two drugs were used for the same thing". Significantly, counsel for Mr. Kowal stated that "there is .no suggestion that he was not awa~ of what he was doing at the time! He pleaded guilty. He simply cannot remember". 7. Was the April 6, 1988 incident an isolated act by Mr. K0wal? There is no proof that Mr. Kowal switched medicines on any date but April 6, 19~: However, it is a fact that the number of errors attributable to the pharmacy increased from three during the last three quarters of 1987 to 17 in the first quarter of 1988, The errors attributable to Mr. Down were at the rate of approximately one per week in February of t~. ~. This caused him to think of quitting his job and he testified that his wife even asked him to 10 quit. On one occasion, an error was brought 'to his attention within hours after 'the filling of the prescription - a prescription that had been double checked by himself and also was checked and remembered by Mr. Golka. Owing to the seriousness of the medication errors, the police were brought in. The pharmacy was videotaped and the April 6, 1988 videotape was the result. Mr. Kowal denies any involvement in any ~edication switch other than the April 6, 1988 incident. In view of the deliberate action taken by Mr. Kowal on April 6, 1988 to descredit Mr. Down, the prior~ medication errors specifically attributable to Mr. Down - notwithstanding the checking precautions introduced by Mr. Down to reduce errors, these matters raise serious circumstantial questions concerning the probability that- Mr.-Kowal may have been involved in medicine switches that .had occurred earlier. PrOof of-such-involvement clearly is not available. However, the circumstances and probabilities must be considered when evaluating Mr. Kowal's total testimony and his credibility. In view of the above, it isthe position of this Member that M. Kowal's testimony is not credible for the following reasons: 1. Given Mr. Kowal's actions and the circumstances of the case, his stated lack of interest in the Director's position is not credible; 2. Given the testimony of Messrs. Down and Golka, it is not credible that Mr. Kowal would find no difficulty working with Mr. Down in the future; 11 3. Mr. Golka's testimony re Exhibit 17 is disturbing. However, his testimony concerning Mr. Kowa~'s behaviour does tend to parallel that of Mr. Down who appeared to th£~ Member to be a very concerned and credible witness. It i~ contended, therefore, that Mr. Golka's testimony is to be preferred to that of Mr. Kowal; 4. Given the testimony concerning work load, it is not credible that this factor should have caused much of the stress which precipitated the April 6, 1988 incident; 5. Mr. Kowal's furtive behaviour at the time of the incident, his subsequent rational discussion with Sergeant Edwards and his later testimony that he knew the two drugs were used for the same thing, cast doubt upon.his evidence that he was irrational and did not know what he was doing at the time of the incident; 6. Finally, we are asked to believe that Mr. Kowal was so stressed by April 6, 1988 from a written reprimand given to him in December of 1987, that he abandoned a grievance p=ocedure which only recently had provided him with the resolution of a prior wage complaint; and which already had resulted in a proposal to reduce the written reprimand to the status of a counselling letter. With respect to credibility, the jurisprudence cited at page 13 of the award bears repeating, "...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." Essentially, the grievor's testimony is just not credible. Mr. Kowal is a licenced professional 9harmacist. He knows that no drugs can be changed by a nurse or pharmacist. As stated by expert witness Koob, only a doctor can do this. He knows also that any change of .medication ~has an element of risk, - that there is always the potential for serious impact. Union counsel agreed that the action alone, on its face, is sufficient to suspend and then'to dismiss. It is argued, however, that Mr. Kowai was ill from a General Anxiety Disorder and that, i~ any event, it was the intent of Mr.. Kowal that the "error" should be caught. Dr. McCaldon also stated that Mr. Kowal knew What he was' doing-at the time of the incident, that he felt that the switch in drugs would be caught, that its intent was retaliatory against his supervisor, and that it would make his supervisor "look bad". Mr. Kowal acknowledged that he deliberately switched medication on April 6, 1988 to discredit Mr. Down. He admitted his guilt before the court and professional misconduct befor~ ~he'College of Pharmacy. His actions must be viewed against the background of the nature of his work and khe balancing of interests as amongst fellow employees, the employer, hospital residents and the general public .interest. In the view of this Member, Mr. Kowal's explanations for his deliberate and retaliatory actions lack credibilitY. Moreover, the nature of'the act on the part of a licenced professional strikes at the heart of'the employer/employee relationship. It is not reasonable that Mr. -Kowal should be reinstated to his prior position where'most of the alleged stress factors which precipitated the incident still obtain. Addi- tionally, it is not reasonable that the Employer should be required to reinstate an individual who has' engaged in an action for personal retaliatory reasons which, could have had such far reaching ramifica-. tions upon the public trust of the Employer. At page 17 of the award, jurisprudence is quoted as follows: "In exercising a jurisprudence of.mitigation, we .must be satisfied that before we interfere with the penalty, the restoration of a viable employment relationship is not only feasible but likely." (p. 10 Metro Toronto) 13 The above noted case involved a discharge of an employee who also suffered from psychogenic amnesia and the discharged employee was reinstated. That case, however, is readily distinguishable from the subject case on the basis of the nature.of the act, the motivation, the issue of public trust, the risk associated with a re-occurrence of the act, and the absence of "professional" status on the part of the employee. More specifically, the case turned on whether or not the employer/employee relationship could be re-established. In that case, it was stated at page 4 that, "He (the grievor) was well liked and respected both by his fellow employees and his superiors..." and, "tn his evidence before the Provincial Court, the Grievor's supervisor described the Grievor as "probably the finest employee that the Department of Ambulance Services had, and i think you'd be hard pressed to find anyone in the department to contradict that." . As a consequence of the evidence adduce~, in this same case, it was concluded at page 10 that, "We feel that there is every indication that a viable employment relationship can be re-established in view of the grievor's past relationship with his fellow employees and his supervisors." In the subject case, it is clear that Mr. Kowal could not be reinstated to his prior position in Kingston Psychiatric Hospital. In the opi~nion of this Member, and following the rational set out in the Metro Toronto case, it is equally clear that Mr. Kowat's relationship with his Employer cannot be satifactorily re-established. In view of all of the above, given the motivation, nature of the incident, it's potential risk, and the violation of the grievor's own prdfessional obligations, the Employer should not be obligated to try to "put together" an employment relationship that has been so irrepairably damaged. F.T. COL~.