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376/91
IN THE MATTER OF AN/%RBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Bennett)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE: J. Roberts Vice-Chairperson
M. Lyons Member
H. Roberts Member
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE P. Wiley
EMPLOYER Deputy Director
Legal Services Branch
Ministry of Community & Social Services
H~ARING August 21, 1991
February 7, 14, 21, 1992
June 29, 1992
AWP~RD
This is a discipline case. ~n March i, 1991, the grievor was
notified that because she was found to have seriously-'abused a
resident at the Rideau Regional Centre, she would be su~pended
without pay for twenty working days and reassigned upon her return
to another position with minimum contact with residents. On the
same day, the grievor filed a grievance claiming that she had been
disciplined without just cause and requesting full redress;. For
reasons which follow, the grievance is allowed in part and
dismissed in part.
GENERAL BACKGROUND
It seems convenient at this point to set forth the letter of
discipline that was received by the grimvor. This letter read, in
pertinent part, as follows:
March 1, 1991
Ms. Gloria Bennett,
R. R. No. 5,
Smith Falls, Ontario·
K7A 4S6.
Dear Ms. Bennett:
I am convinced that you did seriously abuse resident E.S. over
a three-hour period on the evening of October 23, 1990.
First, you were verbally abusive with the resident, E.S., when
placing her in restraints, by threatening and demeaning her.
Secondly, you knowingly left resident E.S. in her own urine
and feces whilst in restraints for at least three hours which
is neglect in the extreme of your duty as a care giver.
Thirdly, you made the resident clean up the restraints, and
her bed. This was unwarranted.
Fourthly, you did not document any of the events with respect
to E.S. as required in Rideau Regional Centre's Reference '
Manual for Direct Care, specifically articulated in 0302-07 -
Log Books - Wards.
The above abuses cannot be condoned and the mitigating
circumstances did not warrant the excessive neglect shown to
In consideration of the above, I have decided to impose
discipline which is commensurate with the seriousness of the
infractions and takes into raccount the circumstances and
context in which the incidents of abuse occurred.
I am officially suspending you without pay for twenty working
days, i.e., March 4, 1991 to and including April 2, 1991.
Upon your return to duty on April 3, 1991, you will be
reassigned to another position wherein your contact with
residents will be limited to the maximum extend possible.
"Red circle" salary protection will be afforded to you~ should
it be required as a result of your reassignment. Finalization
of your reassignment will occur during your period of unpaid
suspension.
Management will also entertain a request for a leave-of-
absence without pay for up to six months in order for you to
complete the requirements of the Registered Nursing program
should you so wish.
I must inform you that'abuse of a resident is a most serious
violation of the Ministry's Standards of Conduct which cannot
and will not be tolerated. Should there be any repetition of
this violation in the future, you are officially warned that
dismissal from employment will be the result.
(Signed) Wynn Turner,
Administrator.
As can be seen, this letter essentially cited four counts of
discipline against the grievor. These were (1) verbal abuse of
the resident while placing her in restraints; (2) neglect of duty
as a care giver by (i) leaving the resident in restraints for at
least three hours while (ii) lying in her own urine and feces; (3)
forcing the resident to clean her feces and urine off the
restraints and restraint bed after being released; and, (4) failure
to document these events according to applicable standards.
The events leading to this discipline took place in a ward on
the top floor of the Maple Heights Building at the Rideau Regional
Centre. This ward housed developmentally handicapped residents who
were relatively high functioning. It was denoted as a behaviour
management ward because the residents also had aggressive
tendencies which sometime required the application of physical
restraints, tranquillizing medication, or both.
For purposes of physical restraint, a restraint bed was
permanently installed in a cubicle in this ward. The restraint bed
had leather straps and cuffs for purposes of holding dlown a
resident's arms, .legs and torso. The application of these
restraints was designed to prevent the resident from inflicting
injury upon his or her own person and the persons of staff and
other residents.
The resident involved in the incident leading to discipline
was a young woman about 25 years old and less than 5 feet tall.
She was relatively high functioning in. that she was capable of
carrying on a conversation with staff and others, could reason,
4
understand and remember. She was capable of dressing herself and
going but t° work at a vocational services unit on her own. She
was assigned to this particular behaviour management ward, however,
because she became aggressive when she was upset. When upset, she
might strike others, bang her head with her fists, pull on her
shirt at her chest, bang her head on the wall or floor, or throw
herself on the floor. She became 'upset, it was said, if she did
not get her own way or her things were taken away from her. It
.also was well known that she hated restraints and the effect of
tranquillizing drugs.
On the evening of October 23, 1990, this resident was with her
colleagues at a coffee house on the grounds of the Rideau Centre.
Something apparently upset her and around 7:00 p.m., the staff at
the coffee house telephoned the ward to have someone come and get
her.
This call was received by Mrs. Vivian Lavender, the Supervisor
in charge of the day shift on the ward. The day shift ran from
7:00 a.m. to 7:30 p.m., with a half hour overlap ~ith the evening
shift. Mrs. Lavender~sent two male staff, Mr. Martin Forcier and
Mr. Lee Horning, to go to the coffee house and fetch the resident.
Mr. Forcier testified that when he and his colleague reached
the coffee house, the resident was sitting in a corner hitting
herself and crying with a book in her hand. When they tried to
5
talk her into returning to the ward, the resident became more
agitated. When Mr. Horning took the book away from her, she got up
and started to throw-herself on the'floor.
Then, when the two staff members walked out of the coffee
house with the book, the resident followed, hitting herself and
warning them not to lock up her book.~ Mr. Forcier said that he
replied that the book was being locked up and so were her toys
because she had been bad.
By the time they reached the ward, Mr. Forcier said, the
resident was so upset that she began to hit herself very hard and
literally bounce off the walls. Mrs. Lavender decided that she
needed tranquillizing medication and returned to the office to
obtain it. By this time, th~ resident was still carrying on,
screaming, her nose running, and hitting herself in the fac.e. It
seemed impossible to give her the medication in these
circumstances.
Mrs. Lavender then said that they were going to have to put
the resident into the restraint bed. At this time, the ~:ievor
appeared on the scene. It was about 7:00 p.m., and the grievor was
just reporting in for the night shift. According to Mr. Forcier,
the grievor said, "Oh no, not again, we are going to have to put
her into the restraint bed." To this, Mrs. Lavender replied[ that
she had already decided to do that and~· requested the grievor to
6
come and help her and Mr. Forcier perform this task. (It seems
that Mr. Horning, who was from the adjacent ward, had left the
scene. Mrs. Lavender was not fully able to participate with Mr.
Forcier in restraining the resident because of an arthritic
condition.)
By this time, they were at the restraint bed. The grievor
took the resident's legs and Mrs. Lavender took the upper half of
her body. Mr. Forcier then applied the restraints, taking care to
ensure that they were not too tight.
In his testimony, Mr. Forcier described the resident's hands
as very slippery. Because she had been upset and was crying, her
nose had run and she'had gotten the mucous all over her hands.
Perhaps because of this, she was able to slip out of the
restraints.
No one noticed the resident releasing herself. Mr. Forcier
had gone to the bathroom to wash his hands. Mrs. Lavender had
returned to the Nursing office, which was next to the bathroom, to
look up the tranquillizing medication that had been prescribed for
the resident and to document what had taken place. The grievor
also was in the office, putting away her purse and bag.
7
This left one staff member in the ward, Ms. Connie Leyenhorst.
She was very much junior to the grievor. The grievor had been
employed at the Rideau Regional Centre since 1965. Ms. Leyenhorst
was a member of the unclassified staff, having begun as a contract
employee at Rideau in about 1985 after completing a two-year course
for mental retardation counsellors at Algonquin College.
Subsequent to that, she obtained her ministerial diploma from East
Pentecostal Bible College in Peterborough and then returned to
Rideau in May, 1990. Soon thereafter, she began working as a
Programmer.
This was the job that Ms. LeyenhOrst was performing~at the
time in question. It did not involve acting as a Residential
counsellor, with responsibility for personal care of residents, but
rather the provision of activities for them such as swimming,
bowling, arts and crafts, social skills and community awareness.
The only time that Ms. Leyenhorst was given counselling
responsibilities was when a ward was short-staffed.
It seems likely that because she did not have counselling
responsibilities at the time, Ms. Leyenhorst was not asked to
assist in restraining the resident. She was sitting in the dining
room with another resident, preparing Halloween crafts. The dining
room was adjacent to the area of the restraint bed, and was
separated therefrom by a low wall, approximately 4 feet high. The
wall was high enough to block her view of the restraint bed as she
8
was sitting, but low enough to permit her to see the upper parts of
the bodies of people standing in the restraint area. She also
could hear what was being said.
Mr. Leyenhorst said that about 7:40 p.m., she saw the resident
walk past her after releasing herself from the restraints. She
immediately called out that the resident had gotten free.
II. THE_DIVER~ING EVIDENCE RE~ARDING M~TERIB~I, EVENTS
While there were some inconsistencies in the evidence
regarding the events that we have recited so far in this award, it
has been possible up to this point to find the facts with a
satisfactory degree of accuracy. As to the events that were more
material to the discipline, there was a great deal of divergence in
the testimony and it would seem more appropriate to review the
conflicting versions of events presented by the witnesses before
reaching any further conclusions of fact.
(1) The Second Restraint and Alleged Verbal Abuse
(i) Ms. Leye2horst
Ms. Leyenhorst testified that between the time that the
resident was first put into restraints and the time she released
herself, she had calmed down. Initially, she said, the resident
9
was crying, and saying, "Please let me out, I'll be a good girl."
After five to seven minutes, she said, the resident was quiet.
Then, after she released herself, Ms. Leyenhorst said, the
resident was absolutely quiet. She appeared to be heading toward
the bathroom beside the office. Before the resident could get
there, however, Ms. Leyenhorst testified, the grievor came out of
the office, went to the resident and grabbed her on the arm and
shoulders. The resident became upset and began repeating, "No. I
have to go to the bathroom."
According to Ms. Leyenhorst, the grievor replied, "That's too
bad". She then called for Mr. Dennis Latimer, who was working as
a Residential Counsellor 2 on the adjacent ward, to assist her. He
quickly came over and they both put the resident back into the
restraints. The resident struggled and kept saying, "No, I have to
go to the bathroom." She tried to pull away and attempted to sit
down to foil their efforts to put her back in the restraint bed.
To this, the grievor replied that. she was going to make the
restraints so tight that the resident could not get out and she did
not care if she stayed in them all night. When the resident again
pleaded that she had to go to the bathroom, Ms. Leyenhorst said,
the grievor simply replied, "It's just too bad". Mr. Latimer then
returned to his own ward and the grievor went back to the office.
(ii) Mr. Forcier
Mr. Forcier, however, gave a considerably different version
of this second application of restraints. Mr. For¢ier said that
when Ms. Leyenhorst announced that the resident was free, he was
already in the office, having completed his wash-uD in the
bathroom. He looked out of the plexiglass window and saw the
resident walking toward the office hitting herself in the face in
a repetitive ma~er. Mr. Forcier said that he knew that this
particular resident liked to go up to the plexiglass window and
smash her head against it. Fearing that this was her intention, he
said, he and the grievor went out of the office and stopped her.
The grievor then called for Dennis Latimer to come and help.
Mr. Latimer came over and the three of them walked the
resident back to the restraint bed. While they did so, Mr. Forcier
said, the resident continued hitting herself. He, Mr. Latimer and
the grievor then re-restrained her.
(iii) Mrs. Lavender
Mrs. Lavender said that after Mr. Latimer had come over to
assist in re-restraining the resident, she got the resident's
tranquillizing medicine and went to the restraint bed to administer
it. Mr. Latimer steadied the resident's head while Mrs. Lavender
placed the pill in her mouth. Mrs. Lavender then gaue the resident
ll
· a glass of water. She said that she assumed that the resident
swallowed ~he Pill because the resident drank the water that was
given to her. All the while, Mrs. Lavender said, the resident was
still screaming, swearing, and calling her, Mrs. Lavender, a lot of
bad names.
Like the evidence of Mr. Forcier, Mrs. Lavender's testimony
contradicted that of Ms. Leyenhorst when it 'came to the condition
and attitude of the resident at the time of the second restraint.
She said that the resident had not calmed down, and the resident
did not say that she had to go to the bathroom. According to Mrs.
Lavender, the resident did not give any indication that going to
the bathroom was on her mind.
(iv) Mr. Latimer
Mr. Dennis Latimer also was called to testify. He said that
when the grievor asked him to come over and assist in putting a
resident in restraints, her demeanour, as far as he could recall,
was nothing out of the ordinary. He said that he probably would
recall whether the grievor was angry, but he did not recall
anything about that.
When he arrived on the scene, Mr. Latimer said, he found the
resident sitting on the floor beside the restraint bed witi~ Mr.
Forcier standing beside her. He went over, picked up the resident
12
and put her on the bed and held her there while the grievor and Mr.
Forcier fastened the restraints. Once that was accomplished, her
said, he went back to his ward and stayed there.
In the course of these events, Mr. Latimer testified, he did
not hear any verbal abuse by anyone toward the resident. The
resident, on the other hand, he said, was very upset, spitting at
people and trying to resist. Upon cross-examination, he said that
he had observed the grievor working with residents over the course
of a number of years and could not recall ever hearing her swear.
(v) The Grievor
The grievor testified that as she and Mr. Latimer approached
the restraint bed, Mr. Forcier and the resident were already there.
The resident was screaming, slashing and fighting. At that point,
the grievor said, the resident Nad wet her pants. Mrs. Lavender
was not there, but was busy getting the tranquillizing medicine.
When confronted with the evidence of Ms. Leyenhorst that she
had been verbally abusive to the resident during this second
restraint, the grievor denied it. She said that she did not
threaten or demean the resident in any way. Moreover, she could
not recall whether the resident said that she had to go to the
bathroom and insisted she did not stop the resident from going to
the bathroom. The grievor reiterated that when she appeared on the
13
scene with Mr. Latimer, the resident was already back at the
restraint bed and everyone worked as a team, she said, to put the
resident back into restraints.
The grievor also denied being angry with the resident. She
denied saying that she didn't care if the resident was ].eft in
restraints all night. Moreover, the grievor said that she could
not recall the resident pleading not to be put into restraints,
that she would be a good girl. There was so much noise, the
grievor said, that it was impossible to hear everything.
THE ALLEGED NEGLECT OF DUTY AS A CARE GIVER BY ¢i) LEAVING
THE RESIDENT IN RESTRAINTS FOR TWO AND ONE NALF HOURS: WHILE
(ii) LYING IN HER OWN URINE AND FECES
(i) MS. Lvenhorst
Ms. Leyenhorst testified that after the resident had been re-
restrained she soon quietened down to the point where she was just
crying softly. According to Ms. Leyenhorst, she was not saying
anything nor was she making any unusual' sounds.
After about five minutes had passed, Ms. Leyenhorst said, she
could smell the odour of feces co~ing from the area of the
restraint bed. Ms. Leyenhorst heard one of the other residents
tell the grievor that the resident must have dirtied herself
14
because of the odour. According to Ms. Leyenhorst, the grievor
replied that she didn't care and that fucking bitch could just lie
in it all night. After saying this, Ms. Leyenhorst said, the
grievor never went over to check on the resident.
By this time it was about 7:30..p.m. According to her
evidence, Ms. Leyenhorst stayed at the table in the dining room
until about 7:50 p.m., when it was time for her to prepare to go
home. She then took five to ten minutes to put her things away in
the Craft Room. The resident remained very quiet, she said. She
could hardly hear her asking to be let out and promising to be a
good girl.
At about 8:00 p.m., Ms. Leyenhorst went into the office, or
nursing station, .to fill out her time sheet. She said she was
there until about 8:20 p.m. and never saw the grievor go near the
resident.
On her way out, Ms. Leyenhorst testified, she passed by the
restraint bed and just stood there and watched the resident. She
said that she did not let the resident see her and that she really
felt badly for her. The resident was, aocording to Ms. Leyenhorst,
just whimpering and very softly crying.
15
(ii) Mrs. Lave~de~
Mrs. Lavender testified that while it was true that her shift
did not officially end until 7:30 p.m., it was not uncommon for day
shift people to leave before that if the night shift personnel had
come on duty. That evening, she said, She left at about 7:20 p.m.
As she started toward the exit, she said, she walked to the
restraint bed. The resident was stillcrying and screaming.
When the resident saw her, Mrs. Lavender said, she began to
swear and scream at her. Mrs. Lavender stated that she said
nothing in reply. She merely checked the restraints and left.
Before she left, however, she suggested to the grievor that
she leave the resident in restraints until she was c~lmer and the
tranquillizing medication took effect. Her reason for making this
suggestion, Mrs. Lavender said, was that'there was a stroke patient
in a wheelchair coming back from the coffee house along with eleven
or twelve other clients before 8:00 p.m. On top of that, she said,
the grievor had the 8:00 p.m. medications to prepare. Mrs.
Lavender said that she knew that the residents were always hyper
upon returning from the coffee house, meaning that they were happy
and wanted to tell the staff all about what happened.
16
Given this, Mrs. Lavender said, she likely would have left the
resident in restraints while attending to these other matters, just
as the grievor did. She also testified that in her experience, it
was routine to leave residents in restraints for two to three
hours. They then would be taken out, showered and placed back in
for another three.
When asked upon cross-examination, however, whether she would
leave a resident in restraints for two and one-half hours when she
had urinated and had a bowel movement, Mrs. Lavender replied that
she would not. She said that if she couldn't manage taking the
resident out of restraints'herself, she would go to the phone and
call someone to help her, so that when the resident was let out of
restraints to be cleaned up she would not be able to attack her
other residents. Mrs. Lavender added that when she left, she
assumed that if the resident had not calmed down, the grievor would
have discussed the matter with the afternoon supervisor and then
made a decision whether to repeat the tranquillizing medication.
(iii) Mr. Latimer
Mr. Latimer testified that after he had completed assisting in
re-restraining the resident, he returned to his own ward and did
not hear from the grievor at all thereafter. He said on cross-
examination that if the grievor had called him over later in the
17
evening to assist her he would have gone over to do so. He said
that he believed the grievor was well aware of this.
(iv) Mr. Gus Collins
Mr. Gus Collins, a Residential Counsellor 2 at the Rideau
Regional Centre at the time of the incident, testified that in the
Maple Heights Behaviour Management Unit, it was not uncommon to
have to put residents in restraints even all night. Certainly, he
said, it was not uncommon to leave them in restraints for two and
half to three hours. The length of time a resident was left in
restraints, he said, depended upon the overall situation, including
whether the resident had settled down; whether the other residents
in the ward were quiet or agitated; and, whether there were duties
to perform such as.giving medications that would prevent him or her
from attending to a resident who had a bowel movement while in
restraints.
Upon cross-examination, however, Mr. Collins agreed that he
had never left a resident lying in his or her feces on a restraint
bed for two and one-half to three hours and could not tell the
Board whether there had been another case where this had happened.
(v) Ms. Gertrude Cullen
Ms. Gertrude Cullen, who was the Night Residence Supervis. or in
18
charge of, inter alia, the ward in question at the time of the
incident, testified that she entered the ward on her rounds at
10:06 D.m. Even while she was in the hall area before entering,
she could smell feces. She said that the odour was strong. This
was unusual, she testified because this was a high-functioning
ward~ unlike some other wards where some residents were in
diapers.
The grieuor, she said, met her in the hall area. She recalled
asking the grievor what the smell was. The grievor replied that a
resident was in restraints and that she had had a bowel movement,
but that she was going to clean her up right now.
To this, Ms. Cullen said, she inquiredas to how the resident
was. The grievor replied that she had quieted down. According to
Ms. Cullen, she then asked the grievor whether she needed a hand
and the grievor replied that she did not need a hand to clean the
resident up, that she was fine now and that she was going to do it
now.
Ms. Cullen went on to say that she did not go over to the
restraint bed to see the resident. She said that she probably did
not do so because the atmosphere was calm. But for the smel~, all
seemed to be alright. Instead, she went into the office and signed'
the log book. She then left.
19
Ms. Cullen said that in her long experience at the Rideau
Regional Centre, she could recall that from time-to-time a resident
would urinate or defecate while in restraints. When that h~ppens,
she said, the resident should be taken out of restraint and
changed. This was not written down, she testified, it was just
care, care for the resident. There was no doubt, she said, that
this was definitely expected of staff. She added that if this
occurred while a staff member was alone on a ward he or she could
always get help by called the supervisor.
(vi) The Grievor
The grievor stated that she knew that the resident was lying
in her own feces on the restraint bed for about two and one half
hours. She said that she could not take her out on her own. The
resident was still out of control. She felt that the resident was
safe, the clients were safe, and she, herself, was safe with the
resident where she was. According to the grievor, the resident did
not enter into what she considered to be a calm state until five to
ten minutes before she was taken out of restraint. The grievor
added that counsellors had to be sure residents were in steady-
state-calmness before letting them up.
UDon cross-examination, the grievor explained that after the
second restraint, the resident was still'squirming, pulling on the
restraints, trying to get her hands out and crying. She agreed
that she was not screaming and not whimpering for the entire time,
but because of the resident's other actions, she felt that she
could n6t be released safely. She repeated that safety was the
priority in her mind.
When counsel for the Ministry took her through the period of
the restraint step-by-step, the grievor Said that even after an
hour and a half in restraints, the resident was still agitated,
still crying, and talking, wanting to get out of the restraints.
It seemed to her that the tranquillizing medications had not taken
effect. In her mind, the grievor said, there still was'potential
danger in letting her loose. ~ven though the resident was lying in
her own feces, the grievor said, she was in a safe environment.
Safety, the grievor repeated once again, was'uppermost in her mind.
The grievor said that, to her knowledge, other staff members
have left residents in their own waste for this period of time.
When pressed as to whether she had done it before, the grievor
responded that she could not tell how many times she had left
residents in restraints for uD to three hours. She said that you
must respond to the situation because you don't want to get a "bop"
in the head. It all depended, the grievor said, upon the client
and the agitated state she was in.
Looking back, the grievor said, she did not know whether she
would do the same thing again. As to leaving the resident for
three hours in the state she was in, the grievor said that she
21
probably would have gotten help but then again that would leave
other wards unattended. She said that it was a judgment call and
she just did not know.
At the conclusion of her cross-examination, the grievor said
that she wouldn't say that she had any regrets about the way in
which she handled the situation. She said that, in her opinion,
even she and the supervisor could not have handled the problem if
the resident were released any sooner.
3. THE ~LEGED SHORT-COMINGS. IN DOCUHEI~TATION REG~qRDI~ THE
~NCIDENT
(i) Ms. Cullen
The residence Supervisor, Ms. Cullen, testified that in each
ward there is a log book in which the residential counsellors are
expected to make daily notes regarding resident count, visitors,
restraints, accident or injury, and the .count of medication. In
addition, there is a communication sheet for each resident in each
ward, which consolidates all information' on each resident. This
sheet, Ms. Cullen said, goes into more detail regarding anything
that happened with respect to a particular resident.
As to ~he log book for the night in question, Ms. Cullen
testified that it showed the resident in question being placed in
22
restraints by the day shift at 7:05 p.m., although it did not
indicate that there had been a second restraint. It also showed
that she was given a sedative pursuant to standing orders for
disturbed behaviour. These entries were made byMrs. Lavender, who
was in charge of the ward on the day shift.
When it came to the evening shift, however, there was no entry
in the log book with respect to the resident. The log book did not
indicate that the resident remained in restraints, nor did it
indicate when the resident was released. The only.entry made by
the grievor that could possibl~ relate to the events of the evening
was, "quiet night".
The grievor did, however, make an entry on the resident's
communication sheet. According to the grievor, she started this
entry at Mrs. Lavender's request as she was leaving. It read as
follows:
Acting up at coffee house in activity centre & disturbed when
returned to the ward, given PRN chlorpromazine 50 mgs. and
placed in posey wrist & ankle restraints at 1905 hours.
Defecated while in restraints, crying, screaming, and
continued to blow nose, slobber and slime. Released at 2130.
As can be seen, the communication sheet indicated that the resident
was released from restraints at 2130, or 9:30 p.m., some half hour
before Ms. Cullen appeared on the scene while making her rounds.
23
(ii) Mr. Grant Gawlev
Mr. Grant Gawley, the overall supervisor for this and other
wards, testified that he checked the log book and communication
sheet regarding the restraint issue. He found the log book to be
lacking because it did not have in it any entry for the time of
release of the resident,-nor did it indicate that there were any
unusual circumstances on the evening shift. For some reason, he
said, he could not locate the communication sheet for the resident
until a later time.
(iii) The Grievor
The grievor testified that originally, she had decided to
release the resident at 9:30 p.m. even though she was not sure that
she had calmed down. She agreed that there was no reason to
dispute that. Ms. Cullen left the ward,around 10:00 D.m. and the
resident was still in restraints. She also agreed that the entry
regarding releasing the resident at 9:30 p.m. was a mistake on her
part. The communication sheet should have said 10:00 p.m. Upon
cross-examination, the grievor indicated that the reference to the
resident being released at 2130 was made sometime after the
resident had been released and cleaned up.
The grievor also agreed that neither the log book nor the
communication sheet indicated that the resident had been restrained
24
twice. She also agreed that the failure to mention the second
restraint would be very misleading to anyone who read the
documentation a~d did not know the circumstances.
As to the "quiet night" entry, the grievor agreed upon cross-
examination that she made a mistake. She said that she did not
think about misleading anybody, and that her entry should have
referred to the communication sheet but did not. Att he same time,
the grievor stated that there was not anything terribly unusual
about the.night in question, and that most nights are quiet nights.
THE ALLEGED MISTREATMENT OF THE RESIDENT AFTER RELEASE FROM
RESTRAINTS
(i) Ms. Leyenhorst
Ms. Leyenhorst testified that on the day after the incident,
she came in at 10:00 a.m. and took the resident and other residents
swimming. While the resident was changin~ into her swim suit, Ms.
Leyenhorst said, she noticed a rash extending from the resident's
lower back to the base of her buttock on one side. She said that
she decided to ask the resident some questions. She asked the
resident if the grievor had cleaned her uD after she was let out of
restraints. To this, Ms. Leyenhorst said, the resident replied
that the grievor had given her a cold shower.
It seems that the appearance of the rash was the final straw
for Ms. Leyenhorst. She had never seen any similar rashes on any
part of'the resident's body on other ~ccasions when she had taken
her swimming. Moreover, she had known this resident for some time,
having worked with her for some time before the resident was moved
tO the grievor's ward.
Ms. Leyenhorst discussed the situation with another
residential counsellor, and then they took the resident to the
doctor for 'examination of the rash. No treatment or medication,
however, was prescribed.
From there, Ms. Leyenhorst said, she spoke to Mr. Gawley about
the incident and checked further with other residential
counsellors. She said she did this further checking because sh~
wanted some input from others as to whether what she had observed
was considered to be abuse. Mr. Gawley assured her that reporting
the incident would not reflect adversely upon her. Once she
obtained this assurance, Ms. Leyenhorst filed the complaint leading
to the discipline herein.
(ii) Mr. Gawlev
Mr. Gawley testified that before Ms. Leyenhorst spoke to him,
the grievor had already approached him with a vague inquiry about
the incident. This was just after he arrived at work at about 6:50
26
to 6:55 a.m. on the morning of October 24, 1990. The grievor
approached him and said that they had had an awful time'with the
resident in the past night and the day shift had to place the
resident in restraints when she was coming on shift and that she
had assisted them.
The grievor then added that the resident had urinated and they
had let her up to clean her but that she was still upset. They
then re-strained the resident and she had defecated. According to
Mr. Gawley, the grievor then stated that she had left the resident
in restraints after she defecated and she wondered if it was
alright. Mr. Gawley said he responded that 'he did not see a
problem with it.
According to Mr. Gawley, however, when the grievor made this
oral report she did not mention how long the resident had been in
restraints or the time of the second restraint. The conversation,
he said, was unusual because he and the grievor did not usually
converse in the morning. Mostly, he ~aid, the personnel on the
evening shift did not linger after being relieved.
After Ms. Leyenhorst formally lodged her complaint in the
early afternoon of that day, however, Mr. Gawley said, he told the
grievor about the accusation from the resident that the grievor had
given her a cold shower upon her release. According to Mr. Gawley,
27
the grievor replied that she did not give the resident a cold
shower but she damn well did not make it pleasant.
(iii) The Grievor
The grievor, however, denied this accusation. She said that
when she let the resident out of restraints, she Drought her up to
the bathroom and turne4 on a warm shower. The resident washed some
of herself and she did the rest. When the resident came out of the
shower, the grievor said, she dried herself and dressed herself in
fresh pyjamas. The resident then shook the feces out of her under-
pants and took a cloth back to the restr'aint bed and cleaned it up.
After that, she came to the office, was given milk and cookies, and
then went to bed.
As to cleaning the restraint bed, the grievor said, she asked
the resident to wipe the bed. The resident agreed. The grievor
added that as to residents who are as high functioning as: this
individual, they are requested to clean their own beds if they make
a mess like that.
Upon cross-examination, the grievor said that when the
resident went into the shower, she had feces spread over her
buttock and there were pinkened marks on her buttock. This was not
uncommon for the resident, the grievor said, because she often wet
herself when she did not get her own way.
28
When confronted upon cross-examination with Mr. Gawley's
evidence that on the morning of October 24, she told him that after
the resident urinated, they got her up, cleaned her and then re-
restrained her, the grievor said she could not recall that
statement. She said that at the time, there was a lot of activity
in the ward.
As to Mr. Gawley's statement that later that afternoon, the
grievor said that she damn well did not make the shower pleasant,
the grievor, again said that she did not recall making any such
statement.
III. TH~ SUBMISSIONS OF COU~.SEL & RESOLUTION OF THE ISSUES
At the conclusion of the evidence, both counsel agreed that
the issues presented were primarily factual and that the key to
their resolution resided in our assessment of the credibility of
the witnesses. We also recognize that the degree of proof required
to sustain each allegation of abuse must take into account not only
the significant public interest in maintaining the dignity of
developmentally handicapped residents in provincial facilities but
also the seriousness of the allegations against the grievor and the
consequences to her of an adverse finding of fact.
Bearing the foregoing considerations in mind, we conclude that
the only allegation against the grievor that is sustained in the
29
evidence is that of neglect of duty as a care giver by leaw~ng the
resident lying in restraints in her own feces for a period of about
two and one-half hours. The evidence, properly considered, is
insufficient to support any conclusion that:
(a) the grievor verbally abused the resident while placing
her into restraints;
(b) the shortcomings of the grievor in the area of
documentation constituted just cause for discipline; or,
(c) the grievor mistreated the resident after her release
from restraints.
We will deal with these points in the order in which they were
addressed in our review of the evidence above.
(1) The Second Restraint and Alleged Verbal Abuse
On this issue, we heard from five witnesses, including Ms.
Leyenhorst, Mr. Forcier, Mrs. Lavender, Mr. Latimer, and the
grievor. Four of these witnesses testified that the grievor acted
as a team member in re-restraining the resident. Both Mr. Forcier
and Mrs. Lavender testified that as the resident was walking toward
the office, she was not calm, but was repeatedly hitting herself in
the face. This caused Mr. Forcier to fear that she was preparing
to hit her face against the plexiglass winder of the office. To
prevent this, both he and the grievor stopped the resident. Then
the grievor sought out Mr. Latimer to help re-restrain her.
30
None of these witnesses confirmed any verbal abuse by the
grievor. According ~o Mrs. Lavender, the only person who was
issuing any verbal abuse was the resident. ~'
Ms. Leyenhorst, on the other hand, testified that the resident
was calm while approaching the office area and, in fact, was
heading toward the bathroom beside the office. It was then, she
said, that the grievor grabbed the resident by the arm and
shoulders and verbally abused her while rebuffing her pleas to go
to the bathroom even in the course of re-restraining her.
In considering the direct conflict between the evidence of
these witnesses, we find it particularly difficult to resolve the
discrepancy between'the version presented byMrs. Lavender and Mr.
Forcier and that presented by Ms. Leyerkhorst. Our overall
assessment of these witnesses was that they were presenting their
testimony in a forthright and credible manner in an effort to
assist the Board. In light of this, it appears that the
discrepancy between their stories must have resulted from the
confusion that occurred at the time.
It is left for us, then, to resolve the discrepancy on the
weight of the evidence, and the weight of the evidence is against
the allegation that the grievor verbally abused the resident while
placinq her into restraints. Accordingly, this count of discipline
cannot be sustained.
31
(2) The Alleged Neglect Duty as a Care Giver by (i) Leaving the-
Residen~ in Restraints for Two and One Half Hours While (ii~
Lvin~ in her own Urine and Fec6s
We have divided this issue into two sub-issues because a
considerable amount of time was spent at the hearing exploring the
question whether leaving the resident in restraints for two .and one
half hours would, without more, constitute sufficient cause for
discipline. We have no hesitation in. concluding that as of the
time of this incident in 1990, it would not.
While it seemed that the Reference Manual for Direct-Care at
the Rideau Regional Centre called for checking restrains every
fifteen minutes and releasing residents from restraints after a
maximum time of one hour so that they might be exercised, the
testimony of virtually every witness was that in practice, it was
not uncommon for a resident to be left in restraints for periods of
two to three hours. We understand that since the incident in
question, adherence to the standards set forth in the Reference
Manual for Direct-Care has been re-emphasized; however, we cannot
find that these standards prevailed in October, 1990, when the
present incident occurred.
On the other hand, it seems abundantly clear from the evidence
that the conduct of the grievor fell farlbelow the standard of care
to be expected of a Residential Counsellor having in her (:are a
32
resident who had urinated and defecated while in restraints.
Regardless of whether the'resident had calmed down sufficiently to
be released altogether, it was the duty of the grievor to see to it
that she was released and cleaned up. It was of no consequence
that the grievor was alone on the ward. To her knowledge, help was
available, either by called Mr. Latimer from the adjacent ward as
she had done before or by telephoning her supervisor to provide her
with assistance.
On this score, Ms. Cullen, .the Night Residence Supervisor,
probably said it best, when she said that while this expectation of
staff was not written down, it was just care, care for the
resident.
It seems to the Board that the grievor may have realized at
least belatedly that it was negligent to leave the resident lying
in her own feces and urine for such a long period of time. In this
regard, we cite her behaviour when Ms. Cullen appeared on the
scene, meeting her in the hall and emphasizing that she intended to
clean the resident up right away; her misleading entry of 9:30 p.m.
as the time the resident was released from restraints rather than
some time after 10:00 p.m., and her subsequent approach to Mr.
Gawley on the morning after her shift, apparently seeking e~ post
facto approval upon a vague and incomplete description of the
incident.
(3) The Alleged Shortcomings in Documemtation Regarding the
Incident
This count of discipline perhaps deserves little comment from
the Board, since it was acknowledged in the submissions of counsel
for the Ministry that the grievor's failure to keep proper
documentation would not have constituted in itself a gro~[nd for
disciplinary action against the grievor. The main purpose of
referring to this documentation,.he submitted, was to emphasize the
grievor's recognition ofher own negligence and certain efforts by
her to either minimize it or cover it up.
It certainly was shown at the hearing that the standard of
care in record keeping in the ward in fell below'the standards set
forth in the written operating procedures established bythe Rideau
Regional Centre. Once again, however,, it seems that this was a
case of the overall standard of practice falling below the written
standard rather than an individual lapse on the part of the
grievor. The Board understands that since the incident in
question, the Rideau Regional Centre 'has begun to insist: upon
closer adherence to its written procedures.
4. The Alleged Mistreatment of the Resident After Release from
Restraints
The evidence does not support a finding against the grievor on
34
this count. Ms. Leyenhorst's testimony that the grievor had given
the resident a cold shower after she was released from restraints
was hearsay in nature. The grievor denied this allegation when it
was brought to her attention by Mr. Gawley. In her evidence, the
grievor stated that she had given the resident a warm shower. We
acknowledge that we have some difficulty arising out of the
evidence ~iven'byMr. Gawley that the grie~or had indicated to him
-that she "damn well did not make the shower pleasant;" however,
this expression was too vague to constitute an admission against
interest sufficient to sustain a serious allegation such as
resident abuse.
As to requiring the resident to clean up the restraint bed
subsequent to her release, the grievor was uncontradicted in her
testimony that as to residents who are as high functioning as this
resident was, it was usual to request them to clean their own beds
if they had made such a mess. While we recognize that the resident
soiled herself while in restraints, we also note that there was
evidence that the bowel movement of the resident was not
involuntary, but was forced by her in what apparently was an
attempt to win release from restraints. In these circumstances,
the behaviour of the grievor in this respect seems to fall short of
resident abuse.
3~
-- When the grievor was disciplined, she was suspended 'without
pay for twenty working days and reassigned upon her return to
another position with minimum contact with residents. This latter
stipulation in the discipline, it was said, was made in consequence
of SeCtion 19 (4)(a) of the Crown Employees Collective Bargaining
Act R.S.O. Ontario 1980 c. 108, as amended 1984 ¢. 55 s. 214. This
provision reads as follows:
19 (1)(4) Where...the Grievance Settlement Board find.s that
an employee who works in a facility,
(a) has applied force to a resident in the
facility, except the minimum force
necessary for self-defense or the defence
of another person or necessary to
restrain the resident; ...
The Grievance Settlement Board shall not provide
for the employment of the employee in a position
that involves direct responsibility for or that
provides an opportunity for contact with residents
in the facility, but the board may provide for the
employment of the employee in another substantially
equivalent position.
It seems that because the Ministry had concluded that the grievor
had engaged in resident abuse in the context of the in.=ident
herein, she should not be permitted to return as a Residential
Counsellor.
The Board has concluded, however, that the grievor did not
engage in any form of resident abuse contemplated by Section
36
19(4)(a) of the Crown Employees Collective Bargaining Act. Rather,
we have concluded that the grievor neglected her duty as a care
giver by leaving the resident in restraints for two and one half
hours while lying in her own urine and feces.
While this was undoubtedly a serious breach of her duty as a
care giver, it did not, in our view, constitute the application of
force within the meaning of the statute.
The question then arises, whether the grievor ought
nevertheless to be prevented from returning to her position as a
Residential Counsellor. We think not. She should be permitted to
return to her former position. Until the incident inquestion, the
grievor had served as a residential counsellor for some twenty-five
years. In all that time, her disciplinary record was unblemished.
Moreover, there was evidence fromM rs. Lavende= that the residents
were extremely fond of the grievor and would often ask when she was
coming in. In light of these factors, we do not consider the
grievor in any'way to constitute a threat to the ~afet¥ and well
being of the residents.
It was submitted that the twenty-day suspension ought to be
reduced in the event that we did not sustain, as we have not, all
of the counts of discipline against the grievor. We decline this
invitation. While it is true that we have sustained only one of
four counts of discipline, we cannot ignore that this count
37
involved a serious act of negligence. Given that this negligence
occurred in a setting involvin~ the custody and care of individuals
who are amongst the most vulnerable in our society, we cannot say
that this aspect of the disciplinary penalty imposed upon the
grievor was too harsh.
Finally, there was a submission that in the event the
grievance was allowed in part, as it has been, the Board should
retain jurisdiction pending implementation of our award. The
reason for this request, it was said, was that the grievor had been
red circled in her new position after her suspension, and may have
been in receipt of less money than she would have been entitled to
had she been returned to her position as a Residential Counsellor.
In view of this, we will retain jurisdiction as requested.
There also was a submission that we should order that the
grievor to be returned to work on the same shift schedule that she
had prior to her discipline. It seems that prior to the discipline
management had entered into a voluntary agreement with the grievor
to allow her to work other than the regular shift rotation, s~o long
as it was agreeable to her colleagues. The 9urpose of thi~ was to
facilitate the grievor's studies in pursuance of an R.N. Degree.
However, we decline to make this order. The evidence at the
hearing indicated that in the meantime,, the grievor had completed
her studies. Moreover, we have some concerns regarding our
jurisdiction to make such an order.
38
The grievance is allowed in part.
DATED at London, Ontario, this 29th day of September,
1992.
; / / _
f err Vice Chairperson
,. J. s,
"I Dissent" (dissent attached)
Mike Lyons, Union Member
H. Roberts, Employer Member
DISSENT
376/91 BENNETT (OPSEU & MCSS)
I have read the decision of the majority in this matter
and with respect, I must dissent. ·
I would first like to comment on the testimony of Ms.
Leyenhorst, the person who lodged the'complaint against
the grievor. I found Ms. Leyenhorst's evidence to be
virtually without merit. Her recollection of events during
the evening in question is in direct conflict with the
evidence of the staff who were directly involved in
restraining the resident. Furthermore, I find it difficult
to accept that, had the resident been suffering the degree
of distress that Ms. Leyenhorst claimed, she, Ms. Leyenhorst,
would not have attempted to do something about it that
evening rather than waiting until the next day to complain
about it. I believe the only truth we can take from Ms.
Leyenhorst'~ statement is that the resident had deficated
sometime before Ms. Leyenhorst left for home at approximately
8:20 pm.
Secondly, I would like to point out'that before she left
for the day, Mrs. Lavender had instructed the grievor
to leave the resident in restraints until she calmed down.
Thirdly, Ms. Cullen, the night supervisor,testified that
when she got to the ward at approximately 10:00 pm, she
could smell feces. She also testified that she read the
log book and so undoubtedly saw Mrs. Lavender's entry
that the resident had been placed in restraints at
approximately 7:05 pm that evening. Ms. Cullen also
testified that the grievor told her that the resident
had just quieted dowa (there is no evidence to contradict
this statement) and that she was just about to release
the resident and get her cleaaed up. $o, in spite of
the fact that she could smell feces and knew that the
resident had been in restraints for at least 2 1/2 hours,
Ms. Cullen, a supervisor, found nothing untoward in this
situation aad made no further inquiries, nor did she take
any action.
Fourthly, the grievor told Mr. Gawley about the incident
the next morning, before she had any indication that Ms.
Leyenhorst intended to make a complaint. In my opinion,
she did this not to "protec~ herself" (because she didn't
believe she had done anything wrong), but rather to inform
management about the incident. In any case, the grievor
clearly told Mr. Gawtey that the resident had deficated
while in restraints. Mr. Gawley's initial response was
that he did not see a problem with the grievor's actions.
He didn't ask the grievor to elaborate on the situation,
h~ didn't didn't ask for more facts or details, he didn't
ask for a wri~tten report.. ~e took the matter in stride.
From the reactions of Ms. Cullen and Mr. Gawley, I think
it is fair to say that initially manaqement found nothing
improper in the way the grievor handled the situation.
This is the most concrete evidence we have that the griew)r
met the standard of care actually expected on the wards
of the instituation. The evidence of the grievo~, Mrs.
Lavender and Mr. Collins tends to substantiate this finding.
In these circumstances, I d~ not think it is the place
of this Board to substitute its own standards for those
established by management. I do not think that management
can ask the Board to impose a higher standard at the hearing
than it showed in the workplace. While I share the Board's
abhorrence that the resident was left in her feces for
up to 2 1/2 hours, that is not a basis on which to make
such a serious finding of fact. There may be many things
that. go on in the ward which we, the Board members, may
find unpalatable. But this is a discipline case and we
should not allow management to impose discipline on the
grievor when management itself has not practised the higher
standard which it relies on at the hearing. It is not
for this Board to enforce management standards of patient
care that are not enforced in the reality of daily situations.
. o o 4
- 4 -
Accordingly, while Ms. Cullen can state that she should
have been called to help take the resident out of restraints
and clean her up, even if the resident was still in an
agitated state, her statement is inconsistent with her
actiOns. If these had really been her expectations of
the grievor, she would not have condoned the care that
the grievor provided.
Similarily, if Mr. Gawley was as concerne~ about the incident
as he claimed at the hearing, he would have inquired further
into the incident when the grievor first brought it to
his attention.
Accordingly, in light of the above and the fact that the
grievor is a long term employee with a very good record,
t would have ~llowed the grievance.
Dated at Toronto this 8th day of September 1992
5Tichaei Lyons - Me