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HomeMy WebLinkAbout1990-0545.Hill.91-11-25 ) I -. I.r· ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO ''4 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TOFlONTO, ONTARIO. M5G fZ8 TELEPHONE ITÉLÉPHONE: (416) 326- 1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMJLEITÉLÉCOP/E .' (416) 326- r 396 - 1545/90 . I.N TO MATTER 07 AN AllBI.TRAT'ION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THB GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hill) Grievor - and - The Crown in Right of Ontario . (Ministry of Community & social services) . - Employer BEFORE: G. . Simmons Vice-Chairperson M. Vorster Member I. Cowan Member . FOR THE R. Wells GRIEVQR Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THE s. Patterson EMPLOlER Counsel Legal services Branch Ministry of community & social Services HEARING, January 10, 1991 May 17, 1991 June 12, 1991 August 9, 12, 23, 1991 , 2 .. When the Board convened on January 10. 1991. it was Informed that the grlevor was unable to be present due. according to counsel. to the fact that he was parlicipating In a criminal proceeding In which he was the accused. By agreement, the Boord adjourned to May 17 where once again the grievor was not in attendance. The Board was Informed that it had been anticipated that the criminal proceedings would have bE.~n concluded by this dote, but while the evidence had been completed. the decision WCIS not expected until June 4. The Union once again requested an adloumment not only for May 17 but for May 22 as well because of the emotional .straln that the grlevor was encountering because of his trial. After hearing representations from the parties, it was decided to forego reconvening on May 22 as well. but thClt we would reconvene on June 12, 1991. The Board ruled. however. that should the grlevor fail to appear on June 12. he will be deemed to have abandoned his griøvance. The Board further ruled that should the grievance be successful. the period between May 17 and June 12 would not place any Ilobl/ify on the Employer. Following the pronouncement of this ruling. the Board was informed that the ponies had agreed that should the adjournment be granted, the Employer would not be liable for the period between May 17 and June 12, 1991. The grievor was In attendance at the hearing on June 12. 1991. The grievor claims that he has been dismissed wiihout just cause in accordance with the collective agreement and the Crown Employees Collective Bargaining Act and seeks reinstatement with full retroactivity In wages and benefits with appropriate ¡. rf 3 Interest. Further. he seeks that all documents related to the investigation and dismissal be removed from 01/ records (exhibit 1). The reasons for dismissal are contained in a letter to the grievor signed by Ms. Joanne Landsborough. Acting Administrator: dated June 25. 1990. which reads as follows (Exhibit 2): Dear Mr. Hill: I have now had an opportunity to fully review the dllegotions against you which were discussed at a meeting wl1n you and your representative on June 14. 1990. The allegations made were os follows: 1) That on April' 19. 1990._at approximately 4:30 p.m. in the T.V. room· of the 4-East -living unit you straddled the resident B.K.'s chest. pinnIng his arms to the floor with your knees, grabbed hold of his , hair with both hands and banged his head agaInst the floor several times. That while s1111 holding B.K.·s hair with one hand. you punched him with a closed fist. once on the left cheek and once on the side of the head. 2) That on or about April 18. 1990. after lunch in the T.V. room of the 4-Eost living unit, you punched the resident H.B. on the side of the head forcefully with a closed fist. 3) That on or about February 4, 1990. In "the office area of the 2-North Jiving unit, you agitated the resident B.L. by referring repeatedly and in a derogatory manner to his habit of 'jerking off' and encouraged him to demonstrate what happens 'when you go blind' causing him to severely bang his forehead against the corner of 1#1e doorway. which resulted in B.l. sustaining a severe bump on his forehead. " 4 . 4) That on April 19. 1990, betweetn 5:00 and 6:00 p.m. your comments CJbout on incident at Huronio Regional Centre to staff member SUsan Fetterly following the Incident Involving B. K. caused her to feel IntimIdated and threatened. I am also aware that you' were given a letter of counsel on February 5th. 1990 regarding your Inapproprtate behaviour with residents. After consideration of tho information presented at the meeting and my subsequent review of the facts, I am satisfied that the allegations have been substantiated. You are in breach of the Ministry's stcmdards of conduct and disciplinary guidelines, specifically. standard number 10, in that you have engclged in thrE,e separate acts of resident abuse and havetnreatenecl and intimidated a fellow employee. -- In view of the serious nature of this matter, I am dismissing you from your employment with the Ministry effective June 25th, 1990. You are entitled to grieve this dismissal pursuant to Art1cle 27.8.2 of the Collective Agreement within 20 days of the date of dismissal. The grievor Is 35 years of age. married, and has one child. He had been employed for approximately two years and four months and had commenced his employment os a Residential Counsellor I where he remained for approximately one and one-half years. He was ~hen advanced to the position of ResldenffaJ Counsellor It. Poor to his employment at the Muskokà facility. he had been employed os 0 contract employee at Huronla Regional Centre for approximately four years. There are three IncidElnts alleging that he abused mentally handicapped residents at the facility. He denies all allegations and. as .~ j. f4 5 stated above. seeks reinstatement with full compensation and benefì1s, etc. The evidence Is conflicting In a significant number of respects and It will. therefore, be necessary to relate the evidence of several of the witnesses In considerable detail. In relating this evidence, we wiU attempt to discuss each Incident separately. Witnesses were excluded at the request and agreement of the parties except. of course, when they gave evidence. April 19, 1990 ~- The B.K. Incident At approximately 4:30 p.m. on April 19. 1990, a number of the residents were in the living room of the living unit on the fourth floor ,East Wing. It is commonly referred to as 4-E. The grievor was also in the living room along with two other employees, namely Susan Fetterley who had been first employed as a trainee some six months previous to April 19. and Ms. Cindy Hayes who had been employed for a period of nine years and who had spent her first six years working in the kitchen. but had been transferred to the floor approximately two years prior to the incident. She was employed as a Residential Counsellor l. B.K. Is a mentally handicapped resident who Is non-verbal and who can only walk with .the aid of a walker. Otherwise, he crawls on the floor to move about. On April 19. 1990, the residents along with the _ employees had been watching television. Gilligan's Island had just completed when Batman was about to comma'nee. One other resident, RC. becomes agitated when he sees any violence on television. We were Informed that this may even occur in some " 6 . soap operas. In any event. the grievor approached the television set and switched the channel to some other station. B.K. apparently likes the Batman show and. while lying on his back In front of the tolevlsion set - which is his normal posture - reached up and switched the channl91 back to Batman. The grievor once again approached the television set whereupon B.K. struck out and scratched his hand. but B.K. switched Batman back on when the grievor returned to his previous spot In the IMng room. When the grievor attempted to switch the television set for a third time. B.K. agoin struck out at him and tried to bite him. R.C. was now becoming fairly a.gitatE~d. He WQ:, bitlng his hands. whining. and : pacing back and forth. The grlevor told Ms. Fetterley to take R.C. out of the living unit Into the rofunda which she did. There Is a conflict In the evidence as to who locked the access door from 4-E to the rotundo. More will be said about this later. It Is acknowledged that when Ms. Fetterley removed R.C. from the living unit. the grievor straddled B.K. and sat on his chest and pinned his arms to the floor. We were told that after approximately five or six minutes had elapsed, Ms. FetterJey re-entered the living unit. Ms. HE~lga Campbell. the afternoon supervisor, entered the unit shortly thereafter and saw the scratches on the grlevor's hands and learned from the grlevorthat he had sat on B.K.'s chest and held him down to calm B.K. The grlevor was Immediately told by Ms. Campbell that Residential Counsellors do not sit on residents' chests. Ms. Campbell then instructed the grlevor to go to Health Services to have his hands attended to by the Registered Nurse. Ms. Betty Kitchen. who was ~tJen on duty. There Is a further I ,- '4 7 conflict In the evidence os to where B.K. was when Ms. Campbell came into the living unit. Ms. Hayes testified that he had been sent to the "spray" room (bathroom) to be bathed; whereas. Ms. Campbell's evidence is that B.K. was lying in front of the television set watching what was on the set. and he appeared to be calm at that time. Nevertheless. Ms. Hayes took B.K. and another resident. P.H.. to the spray room in order to give them baths. AccordIng to Ms. Fetterley, P.H. 'J.(as agitated when she entered the living unit and was striking out at the grievor. Apparently, baths have 0 calming effect on the residents. Ms. Hayes got P.H. Into one bath . . while B.K. was struggling to undress himself In order to get ready to get into another bath. Ms. Fetterley then appeared at the spray room and assisted B.K. In getting his clothes off. Both Ms. Hayes and Ms. Fetterley testified that this was very unusual because B.K. is always oble to undress himself. However. both witnesses testified that he was extremely upset and his emotions were running high and was unable to undress himself. But with Ms. Fetterley's assistance, B.K. . ' got undressed and received his bath. P.H. also received his bath but while he . was leaving the bath or getting dried off he strùck Ms. Hayes in her chest and Ms. Hayes instruct~d Ms. Fetteney to run for help. Ms. Fetterfey complied and soon retumed with Ms. Campbell and other staff members to assist. But at this point in 1ime. Ms. Hayes had been able to get P.H. info his bedroom without further Incident. Ms. Campbell. however, decided to have the grlevor retum to 4-E to give P .H. medication to further calm him. She contacted Health SeNlces and : ! 8 \ asked for the grlevor to return whereupon he did and gave P.H. the necessary medicatfon. Both P.H. and B.K. had food trays delivered to them from the kitchen. The kitchen is located on another floor away from 4-E. The ordinary , practfce Is to have two grqups go separately to the dining room to have their meals. Ms. Hayes and Ms. Fetterley took the first group for their supper while the grievor and Ms. Campbell sat and talked in the kitchen that is situated in the 4-E I , living unit. Upon retuming with the first group of diners. the second group was made ready to go to the dining room. It was while Misses Hayes and Fetterley were bock with the first group that Ms. Campbell noticed Ms. Hayes crying. However. Ms. Hayes stated that she was alright. The evidence revealed that Ms. Campbell suggested that Ms. Fetterley take the second group and that Ms. Hayes remain with the grlevor In the living unit. Ms. HÇJyes, however, declined to remain preferring instead to take the second group to their supper and accordingly Ms. Fetterley remained with the grievor. Ms. Campbell left the 4-E living unit shortly thereafter and during the period of tfme when Ms. Fetterley and the grlevor were alone with the remaining residents on 4-E they discussed certain matters. Again, we have a conflict In the evidence as to what the nature of the discussion was. According to the grievor, they discussed the fact that Ms. Fetterley was unfomillar with how to apply o. "net restralnf'. They thereupon obtained a net restraint In the living unit and the 'Ie L ~.........-. .~ '{ 9 grlevor demonstrated on an empty bed In one of the bedrooms how one applies a net restraint. Ms. Fetterley. on the other hand. while admitting that the discussion took place concerning the application of a net restraint. also testified that further discussIons took place. These discussions centred around the grlevor's involvement In an allegation of abuse at the Hùronla Regional Centre where two 'female employees hod Informed on "the grlevor "that he had caused abuse to resJdents. The grievor's story. accordIng to Ms. FetterJey. was that the matter was investigated and nothing came out of it. He further Indicated to Ms. Fetterley that the two female employees who had made the allegations were shunned by their fellow employees and he further stated that if they were ever to be in . trouble. he would certainly take his time in answering their call for assistance. Ms. Fetterley felt threatened by these comments. The grievor denied ever having made such statements to Ms. Fetterley. After leaving 4-E. Ms. Campbell decided to talk with Ms. Hayes. She left a message with the grievor to' have Ms. Hayes report to her. When Ms. Hayes returned with 111e second group. she was given the message to report to Ms, Campbell. Upon doing so. Ms. Campbell asked her what was the problem and Ms. Hayes Indicated that she needed a cigarette and the two of them went out on the patio whereby Ms. Hayes raised. for the first time. her allegation that the grievor had abused B.K. I ~ 10 ~ Ms. Hayes' version of what transpired while she and the grlevor and the residents were In the living room aftE~r Ms. FettE~r1ey had left Is as follows. The grlevor asked Ms. Fetterley to toke Re. out In to the rotunda. According to Ms. Hayes. the grievor got up and followed Ms. Fetterleyand R.C. to the door leading to the rotunda whereupon he locked the, door and returned to the living room. whereupon he sat on B.K.'s chest. The grle!vor sold he was going to teach B.K. 0 lesson and grabbed him by the hair. one hc:md on each side, and banged B.K.'s head on the floor once. At about this timEt. another resident. J.H.. started to become somewhat agitated. Ms. Hayes turned around to deal with J.H. to get him to go to his room. While she had her bock tumed. she heard another thump just like the one that she had witnessed. She testified that the grievor was excited and upset and he was really angry. The grievor then let go of one side of B.K.'s head, still hanging onto the other side, and braced B.K.'s chin with his elbow and punched him once In the cheek bone. He then punched him once more in the side of the head. then he told B.K. that he could get up but if he did not settle down he would not get any supper. A little later ()nother resident. P.H.. became agitated and Ms. Hayes devoted her attention to him. I Ms. Hayes also testified that between the time she had returned to the living I unit after taking the first group for their supper (md before taking the second group. the grievor approached her and asked where P.H. had "got he~' to which she replied in the chest. Ms. Hayes said that the {Jrlevor informed her that "I got "C Jð~ 1 11 him a good one for you when I was giving him (the medication)." The grievor denies saying anything about P.H. to Ms. Hayes. . . Following Ms. Hayes' inteNlew with Ms. Campbell, she was permItted to leave work and go home but was asked to write a report of what had happened. Ms. Compbel\ then contacted Ms. Janice Fraser who was her supervisor and who was on call at the time. Ms. Fraser come to the facili1y called the grlevor Into her office and informed him that the matter would have to be investigated and he went home shortly thereafter. It should be pointed out that Ms. Campbell's evidence was to the effect that when the grievor retumed to the living unit at 4-E from the Health Services, she accompanied him to P.H.'s bedroom and witnessed the Grlevor giving the medlcanon to P.H. It seems hardly likely, therefore. that the grievor "got him good". Whether he fabricated such a story for the benefit of Ms. Hayes will never be known for sure. However. we find it extremely unlikely that the grievor "got him good' In light of Ms. CampbeWs evidence. Ms. Fetterley testified that she hear~ B.K. hollerIng and screaming for a few minutes and took R.C. to a supervisor's office so he could no longer hear the noise. When the hol(ering and screaming stopped, she re1urned to the living unit. Ms. Fetterley saw Ms. Hayes crying and when she looked at the grievor saw that his face was pretty swea1y and the back of his neck was wet. As we know, the lapse of time from Ms. Fetterley's leaving the unit until her return was longer than five minutes and was probably close to six minutes. I I ~ 12 , Ms. Campbell's evidence Is that when shSt entered the living unit she had to unlock the door whereupon she saw the grlevor standing In a hallway in front of the kitchen (which Is across the hall from the Iiv~ng room) where he was holdIng his hand. Ms. Campbell noticed that It was scratched and she asked what had been going on. The grlevor Informed her what had happened and said that he had to restrain B.K. and sat on him. Ms. Campbell informed him that resident counsellors do not sit on residents and the grlevor demonstrated to her how he had been trying to restrain him. It was at this point when Ms. Campbell sent the grlevor to Health Services. Later that evening. Ms. Fraser. according to Ms. Campbell, visited Ms. Hayes at her home. Ms. Hayes had informed Ms. Fraser that there was blood in B.K.'s hairline and upon her retum to the facility went. along with Ms. Campbell, to B.K. 's bedroom and saw the fresh scratch on B.K.'s hecJd. Ms. Hayes had. along with Ms. Fe1terley. noticed the bleeding when they held been bathing him. In cross-examination. Ms. Campbell testiflEtd that when she entered the living unit of 4-E she went Into the living room whereupon she noticed that B.K. 0 was calm. watching television. and she did not observe anything wrong with him such as cuts and bruises. The grievor's version of what happened on Aprll191s as follows. B.K. kept switching the television channel and tried to scratch and bite the grfevor when he switched the channel to some other programme. He testified that he asked Ms. Fetterfey to take R.C. out Into the rotunda and to lock the door on her way '" .. ~, ~ 13 out of the living unit and explained that they have several residents in that unit who like to wander. He also had in mind that R.C. might attempt to return to the living unit and he did not want that to occur. He admits Sitting on B.K.'s chest and pinning his arms down but stated that B.K. screamed and hollered for approximately ten to fifteen seconds. After that the grlevor continued to sit on B.K. for a total period of approximately five minutes 011 the time talking to him in a soothing manner in an attempt to calm him. After approximately five minutes, the grievor released his hold on B.K. and got up off of him. At this time, the grievor stated that B.K. was calm and fully settled following which Ms. Campbell ·entered the living unit. The grievor was aware that he was not supposed to sit on residents and that such action had not been included in the "crisis intervention course" that he had taken from ~s. Campbell previously. The grievor testified that , he and Ms. Campbell gave P.H. his medication while Misses Hayes and Fetterley were in the dining room with the first group of residents. When they returned, the grievor noticed that Ms. Hayes had been crying and whe:n he asked her what . was wrong she informed him that P.H. had punched her in the stomach. This version is very different from 1he one given by Ms. Hayes. According to her ev\dence, the griever said he "got him good" while she and Ms. Fetterley had . been in the dining room with the first group. ~ , I 14 , February 4, 1990·· The B.L Incident This incident came to light dUling the investigation of the B.K. incident. Mr. Dayle Beare. an Investigator with the Ministry. leamed from Ms. Fetterley that the grlevor was also Involved In 1hls incident Ms. Fetterley revealed the approximate time that it Is alleged to have occurred ond during his search in the Injury report flies (Exhibit 11) came upon a reporl' dated February 4. 1990, which reveoled 0 great deal of similarity to what Is alleged to have occurred. The grievor filled out the report (Exhibit 11 ) and wrote "the following statement of what occurred. I took B. for a walk to TO-2 North. While there. he lost his balance and struck his forehead on the doorframe of 2-N's office. This resulted in a IClrge bump on his forehead. H.S. (Health SeNices) notified. On the date In question. Ms. Fetterley WClS wOrl<lng in the 2-North floor (commonly referred to as 2-N) while the grievor hod been working in 4-E. 4-E was the living unit In which B.L. lived. The grievor brought B.L. to 2-N for a visit. Ms. Fetterley was In an office in 2-N when the grievor and B.L. entered. There was another resident in the office with Ms. Fetterleyat the time, a Ms. G. Ms. Fetterley testified that. "we had been jokIng and basically there was a fun atmosphere." It was at this time. according to Ms. Fetterley. thClt the grievor said to B.L., "How many times do you 'jerk off B.?" And B. said, 'Twice." The grievor said. "No. must have done It more than that. must have been at least 200 times." Then the grievor said. 'What happens when you do It that many times?" And B. said. 'You ,\C ,~, '1 15 go blind." So then the grlevor said to S.. 'What happens when you go blind B?" Ms. Fetterley then stated. 'There Is a comer molding In the corner of the office door and B. brought hls head back and smashed It against the molding which brought out a great big egg on his forehead with blood In It." Ms. Fetterley testified that she was· pretty upset and told the grievor to take B. to Health Services. Ms. Fetterley stated that she did not report it at the time but she did relate it to a Ms. Maureen Chamberlain, a Residential CoÙnsellor 2, at 0 later time. - In cross-examination. Ms. Fetterley acknowledged that at the time B.L.'s medication had been reduced from 500 mg to 100 mg. She also acknowledged that B.L. was hypersensitive at the time but denied that he hit his head on the molding due to hypersensitive activi1y. The grievor's evidence Is at variance with that of Ms. Fetterley's. He testified that B.L. was very agitated and hyper. His medication had been reduced from 500 mg a day to 100 mg and he was showing withdrawal symptoms such as drooling and being hypersensitive. He had been striking out at staff and had . been pacing back and forth up and down the hallway. He had also been striking out at residents. He stated they were short staffed on the day in question so the grievor had been unable to take him for a walk. When the staff returned around A p.m.. the grlevor took him to 2-N and while there, visited the office and talked to Ms. Fetterley. At this point in time. B.L. lost his balance and banged his head on the door frame resulting in a large bump on his forehead. According to the grievor. Ms. Fetterley began by asking B. how he was doing' and Sue said, ~ 16 a "Are you 'jerking off?" The grlevor acknowledged that B.L. has a tendency to talk about masturbation. For instance. a question might come up like. 'What have you been doing B.. or how have you been?" and he would say. "I have been pulling my wire." The grlevor denied ever asking B. what would happen if he masturbated or jerked off too much whe1her he would go blind. and further that he never heard B. make the connec1ion. It is obvious that one of the witnesses is not telling the truth. The only , comment we would make at this stage in the Clward is that the accldent and Injury report (Exhibit 11) Indicates that 1he Heolth Services was first notified at 15:35 hours and that B.L. was seen by Ms. Kitchen at Health Services at 15:45 hours. The seCTIon that has been filled out by the grlevor whrch Is reproduced above. 'shows that it was made at 16:10 hours. So. the grlevor's comment about being short staffed and being unable to take B.L. for a walk: until the staff returned around 4 p.m. may be somewhat Inaccurate. April 18. 1990 -- The Incident of H.B. H.B. is a resIdent In 4-E. He Is described as being a very little man of about 76 years of age. He apparentfy was very quiet and just paced up and down the hallway. This was his practfce until he suffered a stroke some three weeks prior to April 18. 1990. On that day. the grlevor and Ms. H()yes were working alone on 4~E living unit. At approximately 12:30 ~ 12:45. H.B. WC)$ sitting in a wheelchair with a food tray In front of him. He had lust finished lunch when Ms, Hayes walked I ~' ,- '\ J7 passed him and thought she could smell an odour emanating from H.B. She stopped in front of him and asked, "Did you poop your pants again?" Ms. Hayes' said it was like a game to him. H.B. kn~w how to ask the staff for assistance by mOTIoning or something. but he just giggled at Ms. Hayes. He was non-verbal at the time. Ms. Hayes scolded H.B. by saying. 'That's bad." According to Ms. Hayes. the grievor was sitting in the coffee room or kitchen and came over and said to H.B.. 'That's not funny." and he hit H.B. on the side of his head with his fist. Ms. Hayes indicated that H.B. was upset by this act of the grievor, but that there was no physical harm as there were no marks,or anything on him. rather, he was just emotionally upset. Asked what she did at the time, Ms. Hayes said. "I didn't do nothing qbout it." She does not really know why she did nothing about it, but she said that she let the grievor know that she did not like it. The grlevor informed the Board that he wàs the primary counsellor for H.B. He denies punching H.B. He Informed us that other residents In 4-E had similar problems. that Is tolleting accidents. Two other residents had accidents fairly regularly on a dally basis whlle two others had sporadic problems. The latter two might have an accident one day and then not again for a week. The grlevor testified that he never laid a hand on H.B. and he does not recall April 18 at all, but he knows that he never touched H.B. The Board has purposely repeated certain aspects of the evidence in order to relate the different versions we have heard. While some of the differences are I 1/ & 18 ! . perhaps unimportant In themselves. when taken as a whole they may have a significant impact on our decision. Where does all of the foregoing lead us? If we begin with Ms. Fetterleyand R.C. leaving the 4-E living unit on April 19 we have a conflict in the evidence over who locked the door. Ms. Fetterley crnd the griovor say Ms. Fetterley locked it whereas Ms. Hayes says the grlevor locked It: We heard from Ms. Campbell that she unlocked the door when she Etntered tho living unit, which was after Ms. Fetterley had retumed. which also suggests that Ms. Fetterley locked it when she retumed. We are inclined to believe that Ms. Fetterley locked the door upon her departure as we are inclined to believe shet locked it when she and R.C, retumed. Ms. Hayes also testified that B.K. was on hIs way to the spray room when Ms. Campbell entered the living unit whereas Ms. Campbell testified that he was watching TV and appeared to be calm. Howev1ar. we know from Ms. Fetterley and Ms. Hayes that B. K. was not calm because hEt was unable to undress himself for his bath due to his emotional state. Nevertheless. Ms. Hayes and Ms. Campbell's evidence Is at variance whE~re B.K. was located when Ms. Campbell entered the living unit. Ms. Hayes testified that the grievor told her he had got P.H. "A good one for you" when he administered the medication but the evidence of Ms. Campbell discredits that evidence. '\' .. '. 't 19 The grfevor testified that B.K. hollered and screamed for between ten to fifteen seconds, while Ms. Fetterley's evidence Is to the effect "that it continued for a few minutes and she had to take R.C. to a supeivisor's office to be out of earshot. If the grievor's evidence concerning the ten to fifteen seconds is to be accepted and that he spent the rest of the five minutes soothing B.K. by calmly talking to him. we find it difficult to believe that his face was pretty sweaty and that the back of his neck was wet when Ms. Fetterfey saw him upon re-entering the living unit. We believe that more happened than the grievor tells us but we . òre skeptical about the veracity of Ms. Hayes' evidence. We note that Mr. Beare, the Investigator for the Ministry, inteNiewed Misses Fetterley and Hayes but we have no Information that he interviewed the grievor to ascertain his side of the story. This becomes Important when we turn to the B.L. incident of February 4. 1990. Mr. Beare's report was, we believe. fairly instrumental in the decision that was taken to terminate the services of the g'rlevor. We have heard from both Ms. Fetterley and the grievor and we have concluded that Ms. Fetterley's version of what occurred that day Is to be preferred over the grlevor's version. We are. however. unable to accept Ms. Hayes' version of. what occurred on April 19, 1990. We must conclude that her evidence is unreliable. We cannot soy that she deliberately set out to mislead the tribunal but her evidence, taken as a whole, has too many flaws in it to be credible. / ~ ! 20 t Nor. we hasten to add. Is the gnevor's story to be accepted In totality. We believe Ms. Fetterley that the grlevor told her about the Huron[a situation and we believe her concerning the February 4. 1990, Incident involving B.L. We are also of the view. as statE~d earl1er, that more took place on April 19 than the grlevor would have us bellev,Et but we are not prepared to accept that it went as far as Ms. Hayes would havE~ us accept. There is agreement between the parties. SUbject to what follows In the following paragraph, that the grlevor overstepped the bounds of proper behaviour of a Residential Counsellor in sitting on B.K. There Is disagreement, however, what the proper response should be. The Board disagrees with the Employer that dismissal is appropriate and it also disagrees with the Union that sitting on B.K. was a "judgement call" which was appropriate in the circumstances. The Board is convinced that more transpired on April 19 than the grievor admits but less than Ms. Hayes states. We are saTIsfied that the grlevor knowingly violated the policy by sitting on B.K.; that he knowingly attempted (and succeeded) In intimidating Ms. Fetterley with the story about what transpired at Huronlo; and that he caused B. L. to injure himself on February 4, 1990, by banging his head against a door mouldIng. We therefore find that the Employer had cause to discipline the grlevor. We do not agree. based on all of the evidence. that the grievor's actions render him incapable of carrying out the dUTIes of a Residential Counsellor. The Incident of February 4 is totally inexcusable and cannot- be tolerated. However. Ms. Fetterley brought the matter to a Residential Counsellor who decided, for ~ ,<6, , 21 whatever reason, not to pursue the matter. Ms. Fetterley was a relatively new employee of the time. Moreover, the February 4 Incident did not come to light until more than two months had elapsed. The point is nelfher Ms. Fetterley nor Ms. Chamberlain considered the incident to besufficient1y serious to carry It forward to management. The alleged incident of April 18 has only Ms. Hayes and the grievor present. Ms. Hayes did nor said nothing about it until after the B.K. Incident the following day. She testified that she remained a friend and on good terms with the grlevor until after the B.K. incident. Ms. Hayes' entire evidence presents difficulties with the tribunal. We are not prepared to accept her evidence as being truthful. The Incident .of April 19 has an admitted violation of policy. The grievor knew he had committed a wrong by sitting on B.K. We are convinced that more happened during the incident than the grievor acknowledges. His face and neck belie his assertion of soothing B.K. Also. B.K. was obviously emotionally upset because of the difficulties he encountered in undressing himself for his bath. We. have heard 0 good 'deal of conflicting evidence. After carefully considering that evidence we have concluded that the Employer had cause to discipline the 9rlevoF but we àre of the view that It falls short of dIsmissal. Rather. we are of the view that a suspension without pay for three months is appropriate in the circumstances. However. this period shall be exclusive of the period between May 17 and June 12, 1991. His seniority accumulation is not to be Interrupted. ~' .. 22 , The normal rule with respect to mitigation applies. The Board will retain jurisdiction to assist the parnes In implelmentlng this award. It is so ordered. Dated at KIngston. Ontario. this ,~..h day of November . 1991. P --6 , .1 C. Gordon Simmons Vice Chairperson I concur/eUsseAt ~;óJ.,J..... Menno Vorster Member . e 0''1 ; , I I concur/eUsseAt \" -. I ,.....~ ,-,,- \ ".::0.-<"""- -~._-' \. ,- '- -- .. Ian Cowan Member