Loading...
HomeMy WebLinkAbout1993-1594.Fernandez.95-04-19 ---- I "Y;, ~ 'i;. \ ( \ -,:, ~y. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , , ~\ e- ... ; SETTLEMENT REGLEMENT f. t/15 'c' BOARD DES GRIEFS D\C~ )1 '6 ?-- I "{ ~ \ ~ , ""'.. r.v+ Po {Iv. \ 1 . '{ . .l?n'\ I 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/T~L~PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU .2!00: TORONTO (ON.TA.RIO) ,MSG 1:l.8 FACSIMILE IT~LECOPIE (416) 326-1396 '.. ~ , GSB# 1594/93, 1595/93 OPSEU# 93E581-2 L IN THE MATTER OF AN ARBITRATION / Under - .~ -, THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT " ~ Before THE GRIEVANCE SETT'LEKENT BOARD BETWEEN OPSEU (Fernandez) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: L. Mikus Vice-Chairperson T Browes-Bugden Member M. Milich Member FOR THE A. Lee ONION Grievance Officer ontario Public service Employees Union FOR THE D. strang EMPLOYER Counsel Management BQard Secretariat HEARING May 3, 1994 June 22, 24, 1994 .. - .. - .. .- - ~._-- -_.. ~~ --- -- - - -- -----~ ----> ! ---- \. I .'-. .( ( t' .~' , The griever, Mr. Dick Fernandez, haS been a nurse at the Hainilton Psychiatric Hospital for twenty years. On July 30, 1993 he was tenninated for alleged patient abusestemmirtg from an incident that occurred on June 28~ 1993 at the hospital. Mr.IFemandez denies the allegation and has grieved that he Was discharged without just cause. lU1 well he has ! grieved that he has been disc:rlminated against, contrary to the provisions of the CollectiVe q Agreement on the basis of ethnic origin and:membership and/or abtivity in'the Union. As 1 ~ ~ a result of that disc~tlon he claimed that he has been harassed and intimidated and is requesting a written order from the Minister of Health directing the hospital to cease and desist from any such activity i 7 THE FACTS J - - The alleged incident occ;urred on the Acquireq Brain, Injury Unit (hereinafter referred to ij. as '~r, at the Hamilton. Psychiatric :Hospital. Dr. Oiampie"ro Bartolucci is a psychiatrist at the' hospital as well'~a Professor of Psychiatry at McMaster University He has been I the Director in charge of ~ unit since its inception in 1993. H8 explained that the unit - was set UP to teach patients with .acquired brain injuries, behavioural modification with a ,. ~ view to assimilating them into ~. community The ~mphasis is on a reward system for appropriate behaviour that is reinforced over a period of time 80 tha..tihe .patient comes to appreciate the benefits of appropriate behaviour ~d the penalties of inappropriate ,. behaviour. The techniques used on the Qrlit are reflected in its staffingpattem. 'Tll~1;e~'<1'" one nurse scheduled on each shift. The patient is cared f9r in a multi-disciplinary , ' !~ . 1 "'- . ~ ~. ( ( 2 r program involving phySiCian, psychiatrist; vocational counsellors and sodial workers. One ~. of the aimS of the unit is to de'-emphasize the Use of drugs in controlling p~tients. I 1 I The incident in question invoivec;i a. patient who will be referred tcS'throughout this award i ,. '" as Mr. A Mr. A acquired a brain injury through viral encephalitis. Dr. Bartolucci has ,~ ,- been involved with his care 'for 'some time and knows him quite well. ,He described Mr. A as having difficulty with shott~term memory He only has a 2-3 minute memory and, as a result, cannot describe events that happened minutes earlier. However,. if he is placed in a situation where he is expected to leam simple repetitive activity, he is able .to learn and remember behavioral patterns. Mr. A has very good long term memory and abilities in some areas that Were developed prior to his brain injury For eXample, Dr~ Bartolucci explained that Mr. A is a very good cribbage player. ',.--..-- - ,~ Dr. Bartolucci testified that the nursing care plan'for Mr. A is' available oIl,his chart and it would be part of the nursing staff's responsibility to keep current with that nursing care plan by referring to the chart. .~ "f;- ~1' .~ The actual incident leading to the tenffination'will be c;iesctibed more fully later in the award, but, for purposes of Dr. Bartolucci's evidence, it is enough to say that the patient was allegedly instructed to hit himself five times and to count out loud with each hit. Dr. Bartolucci's evidence was that Mr A would be incapable of following such an instruction. He explained that Mr A cannot follow directions involving more than one or two directions ~-- .- --- ~ 1 f I \ ( ," \f \ 1 3 r at a time. To ~truc~ him to hit himself, tlve tim~s and qo~t out loud while doing so would ha.ve been beyonq his immediate c~pabilities., Howe~r, he explained, Mr. A is very susceptible to suggestions and is given to repetitive motions. , For example, when , someopeshakes Mr.'A's .~anc;l,;he is inclined to c.qntin~e shaking ~at hand up ~d doWJl I' many tim~s anq counting ,while..doing it. It ~ Qr. B.artol~cci's,.opinioh that if Mr~ A had , < been instructed to hit .himselffive .times and to count out loud while he did so, he would ~. ~ . . ~-'" ,. -, ." .~ ^ .i have' only be~m capable of t9llowit\Q' those inStructiol)S if i~ vrs' .a.i~ame~ behaviour from a 'prior time. '" , '- ! .'. ! Dr. Bartolucci. tes~~[,1;hat duPng the time he ~ been .~~pol18iblefor :Mr. A's 'care, he ". c' d'. ~. _( ~ :f - ~ ,. has I)ever lmown ~. to~ hit J;U:nselt f'IIr. A is. poweveI;; lmown :fo~r 'rwming repeatedly around the ward, shouting ,anchhreatenin~ staff ~d patients. peing phyaically'aggressive towards ot1].er patients and staff, .particularly female staff, grabb~g them inappropriately and putting ipedij:)le and "disgqsting" thin$J8 in his mquth. .~;, I j i' ~ ....'~>., ;. I I In cross-examination. Dr. Bartolucci ~ asked whether the behavioral techniques- utilized , in this ward were different from be~viora1 techniques used ge1]-erallyin- the psychiatric , care; field. He testified that. althou~~ tl),e basic tec:~ques w,ere, ~ same. i~ was more a - question of quality O~l th~ ABI Ullit there, are less dr\1gs ~ed and .more psychotherapy ,. I ;. practisedi. there are morepersonpei in tlle area and a ~ore c~:ms~ten~.qp~ty of treatm~~t for these. patien~~ i :' ! ...... l :- j . -- ~ - ''l l ( 4 There were two witnesses. to the actU81iricident. Ms. 'Penny Fausher and Mr. Bill Rea. Ms. tausher has been a n~e fpr '~e~nteen' years and had been working 'at the Hamilton , J . ", . - 'Psychiatric Hospital since 1993. At the! time of the hearing she 'WaS working as a branch r manager for HeCllth Care Providers iri the~'HCllton and Peel area. She began working on "" the ABI unit in June of 1993. Just PDOr to that assignment, she took part in a five-day orientation program to familiarize herself'with the program and~e patients. She had .- ~ " previous experience caring for .patientSWith head injuriesbufnot using the technique practised on this particular unit ~ , - t The unit had only been open eight or.nine'weekswhen she.took'het orientation course ~ . in June. At the time theta were Only two patients on the. ward, Mr. A and Mr. B. She had been working as an on-call raUef, usually on the night shift. She had' known Mr. A prior to the incident but had never been directly responsible for his care. She testified that the patient care was very'intensive inthatlt Was based ort a.one-tQ-9ne ratio. The focus of the care was to encourage and reWard appropriate behaviour and discourage inappropriate behaviour. The method of reward' was to distribute Smarties whenever the patient had acted appropriately and to withhold Smarties when he exhibited inappropriate behaviour and explaining carefully the reason fotwithholding a reward. It was expected that this system would encourage the 'patients to cease their inappropriate behaviour in the expectation of a reward. --~ -- --- -- - - ~- --, ---- ---- -- ---- - ---- j \ ( ,1' 'I 5 ! On the night in question, Ms. Fausher wa.s.~signe~ to q~for Mr. B. 'There was another t nurse on duty as well, Ms.rSheila Kapc;>sy"",ho was in. 9harge, Cltthelunit.and~sponsible -for Mr. A's care., Ms. Kaposy took the firsnn,eal break and ~. FaUsher offer~d to keep an eye on Mr. A for her. Ms~. Kaposy forgot to tell Ms. Fausher that jshe h~d, arranged for ~/. J relief during tP.e Il1eal break. Ms. Fausher was on her way to see Mr. A when Mr. ,";: .-. : . ! Fernandez arPwcliion the unit. She was giving Mr. .A 80IJle S.marties and Mr Fernandez .- ,~ , ~ I I asked Ms. FaUIJher'WJ:1at she was doing. ,~. Fausher'expl$edt1\at .she was rewarding . -. ~ ~ ~, Mr. A for his ,behaviour and that itwas part. of his treatment prograhl.. ~e grievor asked ~ her how often she J:'ewarded him and she told' him that Mr. A w6uld receive ~ reward Jevery fifteen; m.itlu~s> i( he could maintairJ.'approp~tebehavio1ir.- The gri~vor ,tQld her it ..., -' ~~ . Tor . ~ was a1l"bullshit"~ Ms. ,Fausher ~stified that it was obyio~ t1ult the grievOr did not agree j.',-: }"- vv.jth.that method 9f treatment." ..i-'- ,~ ~>l. The griever thEm made some derogatory conunentsabout Mr. A concerning his llygiene. J He told Nm "that.he loo~d ~ a slol? anet accordiri~ to Mal, Fausher, said it in a , "disgusting tone of- voice:" During .this ~xc:~ge,~. A htld moved aW'ayfrom Ms. Fa~her"andthe grievor. Thegqevor,gesturec;i for ~. !\...~ co~ 'forward and Mr. A began swearing. ~. 'F~usher testifieq. tl.\at, .~ part_ of Mr. Ns ;treatment, she ignored , profapity unless it 'became~rsistent. The grievo"" howeve.r, pinched Mr. ;A's cheek . i I between hiS fingers anc;i asked hiz1;1. what ,he was doing. The ,grieVer told him that he was :~. ,. ,. , I to stop swearing. I " / ~ ; I ~ .f, 1 : ! j ~ ~ ; --.. ( 6 In an effort to defuse the situation Ms. Faushertold Mr A that ~e: yv~, doing Vl;)ry well and that evelything was fine~, Ms. Fausher testified the. grievor grabbed. Mr. A around his shoulders in .a restraining manner aild said to Ms. Fausher, "why are 'you, qoing this--he I I ! doesn't remember from one day to the next.1I Ms. Fausher tef;ltifi~dthat she was concerned about two care givers being so obviously at odds with respect to the correct treatment. The grievor said that he woUld take care of Mr. ~ and Ms. Fausher said IIno, .- ~ I'll deal with his program.1I She told the griever that he. did not have t() restrairi Mr. A Ms. It.. Fausher testified that she knew tha.t she 'had to gain control Qf ~e,sit.uation quickly and get Mr. Allback on' track-II Mr. Afaskedthe grievor torele~ec Mr. A and he did. Ms. Faushertestified that' the gnevor;- was noL violent or aggr~ssive towards Mr. A, just - controlling. ,- .- . ( f - t. , She and Mr. A'I?oved to a'table and: played cards for about 10 minutes or so when Mr. A be~an ac~g up. Ms. Fausher testified ~the tended to IIpqt on a show" at times and . ., 'f l ~ could be quite mtimidatmg. She .fold'.him to settle. down and it appeared that he understood and was prepared: to do so. At that point the griever approached them. Ms. , . Fausher heard the words ''five timesll and lIafter me.11 She observed Mr. A using the foot - of his hand to hit his forehead. According to her.evidence, .he was s~g directly into the ~t;~, grievor's eyes as he biH$nself five times and counted out loud with each hit When he waS finished iooked satisfied with himself. Ms. Fausher told Mr. A that he did not have , to bithiiriself for anyone and Mi A responded with IIl'm blan.1I Ms. Fausher testified that he became irritated and said 'fucking assholell over and over Ms. Fausher testified that ~ i ( ;f ~f) 7 she knew if he began to.run around the ,unit she-would b~ unable, to con~o~ hjm. She ] ,,~ decided to take him outside. He went with her willinglyanci ~at with his back to the I I building. The grlevOr'cameoutside,and sat beside Mr Afo~ a few minu~es bu~ there was 1 no further iricident. When' Ms. Kaposy returned,. Ms. Fausher desqribed. the incident to her; and questioned .~ - how they couldsucceed<with -Mr. A'sprqgram if the. staff would not coopera~e.; According to Ms. Fausher,..Mr~ A spent the rest of: the evening running Sf9und,fhe~t o\lt.of cqn~ol. MS. Fausher thought. about ,the, incident for,.~out one hour'and ~ecided that she had an -t, obligation to Worm'the head of the .unit'aQo~t the co~ct within. 'the program. Mr. A's primary therapist was Mr. Ted .'Newbigginq. Ms. Fausher wrote a note to hin1. ~tstated: I wish to express a concern for care of Mr. A concerning staff coming from' .the units~ I know it will not apply to all, but this p~cular experience appalled me. The individual (male) attemptecttointerfere with my care otM!. A while my Sheila t' .' was having a supper break Le."do you'want to g.o for supper; I'll take care of Mr. All My response.!'no th~ you; W~~ following a pro~ apd he is ,doing very . well.1I He responded I't's just a lot of bull shit, who ever!oOked after him'today ,- -- hasn't taken care of his hygiene." He tUenproc~ed.ed to ~emeanMr. A ~g his cheek in a rough fashion. Pulling his jersey about the neck and holding:him in -. .a physical grasp." Then as Mr. A swore,' he ~tructed Mr~ A.to hlthimself on the head five times and made hiin count as he did it The person was asked by myself to be awai:e"these things are not..dolJ~ to him any more. ,Even Mr. A told hi:n'!. to ,- ' - ~ - , let go of his shoulder, tq no ayail. 'He finally went and sat in the TV lounge and Mr.. < A'and';! sat ,outside to .play cards~ a~~showe~:Ummens~ control and rreinforced . \ ' ~roMrA j . . 'k ~ ,f ~l This was my first experience on Dlon evening shift. Unfortunately, otberwis~ 1 would have been much more protesting, at this muse'sactions,.it left Ir\f:t sorq.ewbat stunned. I was concerned about staff conflict in Mr. Irs presence. I defus~d,the ....~ situation by not allowing him to take overi but needless to say" I found the experience very disruptive for Mr. A I think you oughtto )mow these events. (sic) ~ .~. i" . I I lV .;'~- ( 8 Ms~ Fausher testified that,in h~r experience, causing a client to inte!ltionally hurt - himselt/herself,l:1~ n~ver been an apprpve.d method of treatment. Ms. Faush~r also stated that she WC:1S aware the penalty for patient iilius~ was instant dismiSsal. -, f , The next witness for the hospital was Mr Bill Rea. He is employed by Para Med Health Services as a health care/aid worker. At the time of the incident he had been taking care .~ ,- of the other patient on the tmit, Mr. B, who had been recently .transferred from St. Peter's Hospital to the HamiltopP_sychiatric Ho~pit~. He had been helping Mr B with the activities of d~y living and. his transition from ~t. Pet~~ to the Abl unit. On the evening in question, he was making his final visit to Mr. B. He testified that he was standing in the ~ -, doorway of one of theJ;ooItU$ having a cigarette. From that doorway he could see his patient as ~ll the table where Ms. Fausher and Mr. ,A were playing cards. He heard Mr. A say "oh fuck." He o,bserved the grievor approach Mr. A fr9m thtj) nursing station area and heard him say to him 1.'1 want you to slap yourself on the head ~ times and coun! out loud" Mr. A proceeded to slap himself ort the head five times and count each hit. Mr. Rea went back into the rqom with his patient and did J:;lothi!)g further~evening. He was later contacted by the HospitaJ, and gave a wPtten s~tement of l1is observations that was essentially consistent with his _evid~nce. ,~ " Ms. Sheila Kaposy has been a nurse for twenty-four years and has worked at this hospital for six years. She began working on the ABI unit in May of 1993. She explained that she ~ttended a five-day training session with the head of Psychology in preparation for being ~--- -- -~. - - _.-- - - ~ ----- ----- -- .--- -- . - - - - -- --_..._~~- --- ~- ---~ -- -.- ~--- .- ---- -- - ~ - - r I ( \ T- 7, I ! 9 transferred. to that unit. At the time of the indident, Mr~ Peter Kennedy was the acting resident supervisor and her direct superviSor. Mr~ Tcid Newbigging 'was the prime / ., therapist and in charge oftha rehabilitation program. He was responsible for the rehabilitation asp~cts of the program and Mr. Kennedy was responsible {or the nursing care. ~ i ~ ""... :,..0. -- . - ~ '. She testified that oil the ~Vehing inquestionsqe made arrahgedtents with ilie' griever to t .. ,.:... ~ ! -be ~relieved' for dinner. at. '6:00 P.M. When 'he amvedbn the unit she ,eXplained that Ms. - Fausher would be responSible fot Mr. Ns care ~biaca.use she knew 'lmouthis program. At . I. . . the time the other patient was in the TV 'lounge withMr.~a.. Although sne had supper t- on,the unit, both doom were clOsed in ilie lunch rooInand she did'nofheatthe exchiUlge I f~ - - _ ,"' ~-~ . ~: between Ms. Fausher or Mr. A When she dame out of the staff room shEfnoted that Ms. -<, Fauaherseemed. upset. Ms. Fausher said -to. her "gethim the hell off :theunit", referring ,~ I to the griever. As s<;)ori' as the griever left the unit, she told Ms. Kaposy that he had ~ . abused Mr. AShe told Ms. Kaposy that the grieVer'had made Mr. A hit himself five times and that he puf his aiin around his neck, 'pulled -His cheek and made derogatory remarks ~. }< to him. Ms. KapoSy asked her to write out 'her version of ilie incident. Ms. Kaposy testified that, according to the .Stmdatcis of Nursing Practice from'the College of Nurses >../' and hospital policy patient abuse was not tolerated and Was groun~ for iristant dlsmissal. ! -: ;.. I Mr. Peter'Kennedy Was the nursing cooidinatortesponsililefot the 1m! unit in the spring , , p :; ( ( .- 10 of 1993. He -testified' that when .Ms.Kaposy told him about Ms. Faush~r's z:eport of the events oOune 28, 1993~-he reviewed Ms. Fausher's statement and felt the. allegations were , serious enough to warrant an.'investigation He showed Ms. .Fausher's s~tement to Mr. Ronny Flanders, the 'Director of Nursing. He spoke to-MS. Fausher tQ ql~ her memo and contacted 'Mr~ Rea for his. version :of ~the event. He was satisfieQ- ~~t both party's versions were in agreement and he contacted .thegrievor to hear his ~iq.~ of ~e incident ~ - He told the grievor that he had some concerns regarding his nursing practice and advised him to bring a union-steward With him'to the meeting. .\ Mr Ronald Calligan was chief steward at the time. He accompanied the griever to the meeting to discuss the incident. The grievor denied tellihg Mr. A .to hit hirns~1f, denied grabbing lUm by his cheek and pulling him fOIW8I'd~ but acknoWledged that he did put his aIm around his shoulder to stop him from running. The -griever suggested-that the action of hitting himself was a practice .that Mr. A has engaged in on his forrn~r unit Mr. Kennedy checked with the supervisors of those units and was told they had no knowledge of Mr. A.engaging.in self abuse. Subsequent to the. meeting, Mr. Kennedy spoke to Dr. Bartolucci to investigate whether the act of- instructing a patient to strike himself would be classified as p~tient abuse, particUlarly as.it-related to Mr A. Dr. Bartolucci advised him that, given th~ nature ofMr. A's illness, any direction to him to hit himself would be abusive behaviour. \ \ 'r' :r' 11 I Mr Kennedythen.met with the AdministratQr,,,tAr. Wayne Fife, th~ Assistant Administrator of Patient Care Services, Ms. Sally'C~peau, and Mr. Fla.I}ders. Jt was ,their vi~w that the statements of the two, witness~s were creclibl~ SIld that a fonnal: hearipg was warranted. That hearlng~ held ,on June. 29, 1993 and ~. Gampea';1~was qelegat~d to ~ct as chair. I The hospitafpresentedthe evidence ithad'gathered. 'l.'tte,Union ~Q~k th~..~osjtion that the gpevor had not coinmitted"the, acts alleged. /. '- . i 1..iJ 11~ i. ~f ./ '. I Subsequently the grieVer was' suspended; with pay:and ultimaJely discha+ged p~u~t to hospital poliCy which requires mandatory dismissal for proven patient abuse. It was the hospital's. opinion that the two witness~sstatem~m.'Were-~clible 8lld consistent, that they ; . I f. . had'no reason to fab,ticme-and thatoltthe balal1;ce ofcproJ;>ability,; the a1legatio~ had bee~ substantiated. In: the Hospital li9Ucy manual, ~ent ab~ is defined as wilful : , mistreatment of a. .patient. It was the "view of the' hospitalth$t the grievor's actions fell ~ i within that.d.efinition and wammted dismiSsal. " The gIievor gave evidence on his own behalf. 'On, ,the ~ght ~ question he !f88 assigned to work the 3..11 shift and, during that shift, Was asked to-provide sup~r relief on the ABI I unit. He hadworkedon~ unit two'or thre~ times before for ~ Jull shift ~d had worked with Mr. A on~th!lt unit and on, his fo,nner .unit. -He described Mr. A as being a very demapding patient who Was. Very diflic:ult to ~anage. He ,WQu,ld shput, run away and "..' . - ~ exhibit aggressive behaviour toward patie~ts:,an~ other staff, especially female staff. i / ; j j '. .. ( ( 12 When he arrived on the Unit he met with Ms~Kaposy who instrUcted him to work with Mr , A The griever stated-that, afthat time, he was .somewhat aware of the reward aspect of Ute grievor's treatment. ShortIyafterl\1s. Kaposy left for dinner .the grievor noticed Mr. A standing outside the nursing station where 'the diriner trays had been staqked. He was rummaging through the half eaten trays'looking for something toeat.- The griever asked him to stop and come closer. As he approached~ilie griever noticed that he had not ~ - shaved. He reached out to rub the back of his hand on the griever's cheek so that he / would appreciate the conunent "hovl' come. you haven't shaved?" The grievor explained that shaving had been an important aspect of Mr. A's ca:re on his former' Wlit because routine ,had been vital in managing --him. The momingroutinehad been consistent. Mr. A showered, sli.a.ved and brushed his teeth every day, in that order. Mr. Fernandez mentioned the shavitlgbecause it was an aspect of that routine that had obviously not been followed that day When the grieV9t' stroked Mr. A's 'face, he started to bolt and hefom'he coUld get away the griever grabbed the collar of his shirt and held him. The grieiror'testifiedthat was the way they had managed Mr A before because when Mr. A did get out of control he would . put things in his mouth, shout~ swear aildnm around the unit. , .~- Ms. Fausher and Mr. A we're playing cards outside of the nursing-station when the griever heard Mr A swearing. The griever approached him and asked him what he had said. Mr. A said "fucldng bull shit" The grievor asked him' who he was mferrlng to and pointed to -- - ~ -- I ---- \ (' .. / ~. i 13 himself. or to Ms., .Fausher Mr. A said it was neithe~ of them and pointed to l1Unself. At that point he slapped himself on the ~ea.d five times and counted The Qrlevor testified I' it happened so suddenlY that he was taken aback and dig npthhlg ;to interle~e. The , grievor..testifiedtbat he cij.d not instruct.~..A to hit, hin)selfand agteed that if he l\ad, it would constitut~ ,patient ,abuse., He. a1s~ testifieq.that he was aw~e ~at the penaltY for ". .'. patien! ~~e was immediate dismissal~ ~ ~ ~ ~.. ,> After that incident the grievor advised-Mr..AtostQP swearing and walked. away. He did' not comment to Mr. A.a}:)outthe fact that hehadj~t hi~ ~~lf be9ause, he testified, he I l' . I I had seen .Mr. A hi~ himself befote wtle~hewasfrustrat~d. Th.e gri~vor spoke to Mr. Rea I :' . .- -...."'. . f I for a few minutes and left the. unit wh~n Ms~- ~posy :retumedfrQm;, her supper break. I 1 i Nothing ~'fiJaid tohin:\ that night concemin~ the incic;ient. I ~ I The next day he was called ~ the nursing office qy'Mr. Kennedy and advised to bring a . . .union- steward with him. He c~ptactedMr.CalUgan who a~n.de? ~ meeting wi~ Mr. Ke~e<;ly and Mrf-f.'landers. At the me~ting ~grieVor was told, ~ there had been an incident on the ~I unit and th~y wanted to find out wbat really~ppened Mr. Kenriedy never explained What incident he was refeIling to; merely asked!the grievor whether he had, noticed anything unusual the evening before. They asked thegrievor who was on I duty and whether ,anything had occurred tbt night that would COnBtitu~ _pati~p.t. ~use. - ~? ..;, Th~ grievor repijed .in. the negative., They asked the Qrievor if he Aa.d p~ed, or pinched I the cheek of a patient, if l.tehad grabb~da patient by the neck ,'0 refftrairt him ahd if he I I '" I i .f " , ( \ t ( 14 had instructed a patient to hit lumself. The.grievor responded in the negative- to all of those questions. Mr Calligan aSked why they 'were conducting this investigation and~Mr Flanders said that they were trying to determine whether there had been a breach of professionalnursiIlg practice on the previous 'evening's shift.' He advised them that he intended to make further inquiries about the incident. Thegrievor testified they did not ~ -~ mention that there were any witnesses to.th~fincident. The grievor went back to work for the remainder of the shift and conunenced his vacation -thene~ .day-, , By letter dated July 12, 1993, the grievor was advised as follows. , It has been alleged that .on Juhe '28, 1993 incident(s) occurred-during your proVision of patient care that -could be viewed as unacceptable. I understand that yo~ have had a brief discUssion with the Employer about these allegations. I have been designated to hold a hearing into these allegations. This hearing will take pl~e in the Crest Conference Room oft, the Hami1ton Psychiatric Hospital at 10 ~ on Thursday, July 29, 1993. .- ~- You may be represented or accompanied by your representative of your choice. 'l~"" You should be advised that information made available to me at this hearing could result in clisciplinarya,6tion being taken against you not excluding your dismissal from_employment. '""" Sinc,erely, ,- Sally Campeau " Assistant Administrator Patient Care Services Hamilton Psychiatric Hospitai In the interim, the grievor had made attempts to contact Ms. Fausher andMr Rea to clarify the alleged incident. He was unable to ,teach Ms. Fauaher, but did manage to I l i C r , " ( I ,. I 16 contact Mr Rea. Subsequently- he received a letter from Mr ~nnedy asking him to ~ refrain from C,QntCictin9 ~y of the staff with.respect to the alleged incident. ,..~ .? On}uly 29~ 1993. a meeting was helci in accordance with the letter dated July 12, 1993. In attendance were Ms. Marjorie ;Mart4'1. President of th~ :Local, Ronald C~gan, M$. . .;. ~- "- Campeau, Mr. Flanders, ',Mr. Gil- Harm~rand ,tlle grievor. .Ms. Campeau chaired the meeting. She began by: st"tingthat tl1.epu!posewas ,to gather 41foIlt\ation with respect to certain allegations mad~ ag$1st the grievor. Mr~ ~nnE;ldy passed out typewritten summaries of the events aridn1ade use of amp chart anti O1ierheadproje(!t()r to discuss , that.summary The summary of~nts concluded With tge' follo$g allegatiqns: .~ ~. 1;- - Professional Misconduct: . Reported comme~ui reiateCl to ABiP and intimidatiJ.1gbehaviour towards a colleague~ ,j - Professional Misco~duct:" 1'< ~ - i Reported abUs,e of, a" patient ,. ~pe~ Mi. ~ by ~ cheek and pplled Mr. A . towards him, inappropriately physicaUy,restraining MrA by pullirig jersey about neck, instructed Mr"A to hit himself on the head five times and count . ' . , .... : .~ . .: " as he ~d it. (We. have substituted the actual name of~ patient with'Mr. Al 'lC.. . Ms. Martin objected to the fonnat.:of the meet:ing, and ,accused.t1le hospit$1 of having macie W . . ., ~ . ~ 1 up its mind Mr. Hanner, according to Ms. ,Martin's evidence, agreed ~d stated.that ''that was. why it was called a pre-discipline hearing" ,Ms. Martiil testified that the meeting was ~. very tense and that voices were ~ed. She objected tq .the use of an overhead projector and mp chart an.dadvised the grievor not t();,;~~pond to any questio~. The meeting lasted approximately half an'hour and' at the j9onclusiono( the meeting ~. Hannerstate~ that the investigation was now complete. ~. .., ; , .j i t ~ .. \ 16 Subsequent to that meeting, the grievor received a letter datec;l July 29, 1993 that stated as follows , This is furth~r to our previous correspondence and the he~g which was held on July 29, 1993 with respect to allegations related to your appointment , at Hamilton Psychiatric Hospital. I regret to advise you that effective immediately you are being suspended from employment pending finalization of a decision with respect to the allegations. .~ - This suspension is without pay ~d will be in effect until August 6, 1993 unIes~ extended or amended. / This action is in accordance with Section 22(1) of the PublicService Act and is delegated to me by the Deputy Minister. By letter, dated July 30, .l99~, the grievor was advised that his services were te,rminated effective immediately That letter was signed by Mr. Fife and stated, in part, the following: - .there were a number of allegations with respect to the manner in which you interacted with a patient and following the commencement of that investigation. a peJ;ception of.intimidation of ~taff. I am very concerned mOl:lt particularly, about the three alle.gations with respect to the manner in which you performed your professional_-, ---" ._-- responsibilities. While!:Wo of the ~egations may not have been viewed as abuse, they are definitely viewed as unacceptable and unprofessional patient care. ~ With -respect t9 the third allegati.on, it is ~lear to me that you instructed a patient who is severally brain injured to hit himself on the head a number of times and to.. countth~m out as he. ,did so. This behaviour will not be tolerated. I am of the opinion that-with respect to this latter incident you have engaged in an activity that clearly is one of abuse. Your conduct with respect to th.e latter allegation is ca~e for.dis~sal and I have exercised my discretion under S-22(3) of the Public Service Act to dismiss you from employment by the Ministry of Health ~ffective immediately In view of this it is unnecessary for me to establish the extent of discipline .lor the remaining allegatiops including that of intimidation. - ---~-- -- -- ~-~~~- ~----~~ - ~_.- ----->-- --- - --------- ~ - - --- ~- ~-- ( ( ( I -' ~ j,' 17 i 'The grievor testified that he' was surprised'when he received the letter of termination. He expected that they would issue a report of the investigation be,fore deciding ,on the appropriate action ~o be taken. He assumed that he woUld continue to be suspended with , 1. pay during that time. ". ..e.. ... , '1 The grievor also testified that he was vice president of the local U~()n.an(j, as'such, has .- been irtvoiVed"iI\ several comrnittees iricluding,}{ealth and Saf~ty,.,Grievance Committee 1. and Executive. Committee of the local. He testified that he. has ha~ difficulty getting time off work to attend to Union activities and that when he didl'ecp.testtime 'off, he was required tofind-hi;5 ownreJ?lacement~ His eVidence was, that W8S'\musual and.'specific to him. .. :. ; . ~, i. t ~ Finally, the griever testified that he has been' unable to find alteInate employment. He'~ testified'that he' did vyorlffor~' while' in anursmg home but was,' subsequently advised by .f 1 the operator of the. home that. he had to terminate his services~ It 'wssthe grieVer's , evidence that the oPerator of the home was reprimanded by th~ Ministry .of ltealth for hiring- someone who Was inVolved .in",an ongoing- dispute with th~. Ministry ,- I t I ~ hi cross-examination thegrievor was -asked whether it was appropriate for him to have , criticised Mr. A;s care in front of lii:rn. Thegrievor testifiedthatJie was, n9t,b~~g criti~~tj,-. :- f- of Mr. A but the staff. It was his hope that the staff would reco~e their lapse in care as a result of hiscomm~nts~ When it was suggested to the griever that Mr. A .did not \. ! > I I . '" ., I \ 18 become upset or agitated until after ,}.le,hadbeen approached .l?Y the grievor. the grievor commented that 'Mr. A's. .actiolis w~re difficult, to pre~ct and- tha~ everything he did was intended to avoid a repetition of una~cept~le behaviour. -~. .1. When he was asked why he.approached.Mr,. A and~. Fausher wNle they were playing ., cards. he responded'thafhe 'heard Mr..A say "fucking bull shit" and censored him for his ,- ,- use of profanity When he was aSkedwh~U1er aqroonishing or chall~n~g Mr. A was part of his treatInent program, the grievor respon~ed ~.at it was used as a Ineans of control. He stated lias ,far'as I am aware, tha~s how we cijd i~. on Dl ~The grievor alse;> testified that he -believed that 'he was acting ~sponsibly as a member of the H~alth ~d Safety Committee. Mr. A has a history of hurting people, particularly female,staff, and the grievor was attempting to prevent an unsafe situation. The grievor was asked whether instructing a patient like Mr. A to hit himself five ~s and count with each hit'would be classified as patient abuse. The grievor acknowledged,:thatit was. The griever was asked whether he knew the penalty for patient abuse and. hisre~ponse was Ildismissal.1I Ll , Mr Les Scanlon testified for the- Unio~._ He has .been a psy~hiatric nursing assistant for twenty-fiVe 'years and has wor~d on .*enights~ on ~.A's ~d. He d~scribed Mr. A's behavioral patterns as being ~l~ive andunpredic~le. ,He tf:lstified that Mr A would have several quiet nights follow!3d bya night of scre~g so loudly that the other patients in the ward would require sleeping pills. Mr Scanlon testified that when they were required tb enter Mr. Jrs room to change him o~ put him back to bed, Mr. A became ------------------------'------~,.,- -----"-=-----"----- - - - - - ,- ( ( i ,r 19 Very aggressive, particularly with female staff., 'Fbrthat reason it was usually the male staff ,. who attended to. Mr. Adtirlng. the night"shift. If Mr~A'was. repri1nanded because, for ~ example, he had been incontinent, Mri 'scanlon testified he would say 'lJ:ve been bad-give I me a bang.1I Then he would compulsivelyco~t 1,2,3,4,5. Mr. Scahlon also testified that if someone shook handS with Mr. A, Mr. A would grab thehand~vety hard and shake it up and down ~everal times, counting out ~ .he did so. Mr SPanloIl testified that constant ~ .- counting is 'one of Mr. A's behaViotal'pattems. ;and:: that, in. Qr4er to make him stop coUnting, the staff would be required to hold him~ .Mr !)canlon was asked in cr08S- examinatipn whether Mr. ,A had ever been invOlved in self-mutilation.. Mr. Scahlon testified . . that on one-occasion he saw Mr. Ab~g~hiS~ad against the wall~peatedly .As far as } Mr. Sca:riion knew, Mr. A had never 'beelfinStructed to ,hit himself. ~. r .,.0 j.. 0- 'Ms. Jean Mileclfhas ~eh '8 staff nurse at .the' hospital. sinc~ 1965 ap~ {rom 1988 to I , I ,. I .February 011994 was an area,slipervisor. .As an areasppervisor:o~ofher rel$ponsibUities I was to superVise the grlevor.Forthe: 10 to i2monthS previous to .his,discluu'ge, Ms. Mileqh was ,his direct supervisor. She prepared a final perfo~ce apprais81 for him I dated August 11, 1993. 'HiS name Was appatehtly'on a'listof empl~yees fiJhe was sent from I - the! main pffice who reqUired a perfoi1nartce~appraisal.She testified,.tha~ she: had never I had. any difficulties with the .grievor's": {patient care; The .performance appraisal was , generally positiVe and commented in particular that helV'{or~d well with 'co-workeIS and memberS of the disciplinary"teart\,.thathe'~'verj dependable' 8n,ci was able to adjuSt .i to Various units, that he accepted new methods of prqcedure~-well, practiSed ,good safety ; 1 ~~ f" ~ '" ( ( 20 habits, used .good communicatiorts19llS and problem s9lving; ~~~chniqq.es and communicate d-with 'co-workers, patients, families and community resources eff~ctively ahd in a professional manner. Ms. Milech testified that; she r~ceived a c~ from Mr Kennedy , sometime after the grievor was tenninated in which h~ ,as~c,! her vrhether she had sent a copy of the performance appraisal to the grievor. Her evidence was that when she ~ replied in the affirmative, MrKennedy said "oh, that's too bad for us." 1\pp~oximately one .~ ~ month after she retired, she received a telephone call from Ms. Campeau and Mr. Flanders who wanted to know why she had prep~d the- perfoI1l1:~ce appraisal in the manner she did. Her evidence was that they were not happy Y4th. the, perfqrmance appraisal. In cross-examination she was, asked. whether the mct. thats~meone had been diScharged for patient abuse should; affect aperfo~qe appraisal., She testified that Would be the case. However, she had never be~n n9.tified ~out ,the reasons for the griever's termination. She testified tha.t she knew that s9~thirlg, had happened but that when she spoke .to Mr~ Kennedy and Mr. F1andem theyga;ve her,no infonnation.aB to the actual details of the incident. She agreed with counsel for the Ministry that instructing a I patient to hit himself would constitute. patient abuse and that every psychiatJ;icnmse knew I or ought to know that. Mr Calligan testified about the meeting onJ~ SO, 1993., He received a telephone call from'the grieVer who told him that he was going to be charged with assault. He asked him to attend at the meeting with him. At the meeting Mr. Kennedy outlined the charges, alleging that the patient was told to hit himself on the head five times and count out each - - --- - ---- -- ,- --- ~- - --- - --- --'-"--- -- -- - --------~--- -- --- ( ( i .,., f~. I 21 ! hit. He 8ls0 alleged that' the grievor grabbed the ,,~patient by: the ;nec.:k. Mr Calligan testified that the grievdr was in, shock and denied.all .of the allegClti~ns;,', He saip it was a I short meeting. lastingapproXiinately seven. to ten minutes. H~ was 's~oW1) ~. Kennedys summary of the meeting ,and agreed that it- was ,an accurate reflection of ~e .meeting. I '" , ! , ~r' . AltGUMBN'l' ,,..{. , ... .~ l f,; . Mr. Strang; counsel feiI' the Ministry of Health, took the' p~itiQI).that this wa,.s a case i involving discipline:forserious conduct, that being .patient abU,Se. The isstie.for U1is Boarci to detetmineis'wh~ther, on.Ulefacts presented. the griever did'C9~~ the acts ~eged. If' the Boardagree~ with the>:.:.MihiStry, 'the. discharge'!llust be"\lpheld The policy of. the hospitai calls for:immediatedischargeinc8sesof'proven,patie~tabuse. The evidence is clear. that policy has:.been .consistently applied, that the gtievox:~. aware o(~e policy and was aWare that patient. abuse wasa,;serlous b~ach o~.profesSional "tandards. - .- _:.....- '. I I ,. , With'respect to the Victim himself, Mr. A isJ::learlyin need ofdiIe~on and care by the staff. The nuxsing staff is in a position of extreme trUst which ~sthese allegations of abuse eVen more serious. It was the position of the Ministry' that the tenninaticm was justified for those reasot1s. Further. argued Mr~ Strang, where abuse is.proveI:la,nd denied 1 arid where th~re .~ .no -.indication' of contrition or ~moIS~~, thete a,re1.l~. 9I:9unds for mitigation. r ~t>' '" i ., . .. ~ "' \ i \ 22 The issue then is whether the facts fiave:been proven. In considering the evidence of Ms. Pausher,Mr. .Strang pointed out- that she -is an eXperienced nurse who hacIno. previous contact mth the grievor and had" a fleeting contact With the . hospital at the time. She was providing one-to-one care andr~Understood the nurSing care plan and program .for Mr A The evidence was also clear that the grievor interfered with her care of this patient by openly criticising the care he was rec~ivirig and .by-stroking his cheek. The. grievor .- ~ claimed that he did not know all' of the'specifics of Mr. A's nursing care program, although he did concede that itcortsisted' of a senes of tewardsand/or withholding of rewards. Even if the grievor was unaware of the specifics of the program. he should have checked the patient's chart to make himself familiar with the nursing care plan. Further, argued Mr. Strang, it was improper for him to gratuitously interfere with another nurse's care of Mr. A'and, in particUlar,.to criticise'the.nursing care he waS receiving in front of the patient '.' ~ . ---, 1. H Ms. Fa.'uSher's evidence was that she heard the grieVer say ''five times, after me" Inunediately thereafter Mr. A hit himSelf five times on the forehead with the palm of his hand and counted out each slap. It was her evidence that, until the grievor interrupted the card game and engaged in a diScussion with Mr. A about his use of profanity, Mr. A had been manageable. It washer opiriion. that Mr. Ai hit himself on :the head because he was instructed to do so by the grievor~ Mr. Strang also directed the Board to the evidence of Mr Rea. His evidence was given \ ( l ~ i 23 I in a clear straightforwarcima.nn~r. He had no pennanent c;;onnecti~n to the hospital and. i there was. no suggestion that th~re was any ulteriqr Ip.o~~for his ,evidence. He clearly. . ,.,...,' i' heard' the grievor .instruct Mr. A to hit himself five times .and to counLout each hit. .Mr . .. '. . c.. I ~ Rea's evidence was; unchallenged in cr9slf:-e:taminatio~ I Mr. KennedY's notes of the meeting he,Jd to investigate the, allegations were ccmsistent witJ'l ,_-'- . , ! the Ministry's position. Irtth~e not!!sMr'. KeIU\8dy stated that..the ~~r s:cJenowledged Mr. khad hw:thimself in.a simUar maI\I1er while he was on his previous unit. :Mr.Ca1Iigan ~ was present 'at the- meetinganq ~ad Mr. Ke~edy'lInote~"and did not sugges~~, that they were inaccurate in anY way . .. < ," Dr. Bartolucci's eviden~ was,thatMr. A qould not~nd to"aserie. of commands unless it h.ad been le~d behaviour from previoUs times.,; tt~. ~e~~ according to .Dr. . ; Bartolucci, that Mr. A co\J1d not have carried out the series of actio~ necessalY to-comply .,1 with the grievor's ins~ctions ~ess be had been taught a similar p~~ .of activity in the '~ t j past. -.,'" r Insmnmary, it was the positicm of the_'Mi$try that ,the grievor twice Clctedin an unpz:ofessibnal manner py ~terierlng gratuitously withcthenl,UBiIlg care ~r another nmse ~ . without reason. The patient was not out of control and, t1wre ~ no imininent danger. , , - Further, and more significantly, thegrievol' instructed the.patiE:mt to hit himself on the head I five times and count 'out loud while lie diq .so. That constitutes ,patient abuse,. Every J . .' '<":> " ( ( l a4 I person who testified in'thiS matter, including the grievor; a,greed ,that would .constitute patient abuse. In the face of the ,evidence before this Board ~.dthe ~animous agreement of the parties' as to the characterization of the grievor's actions,.thj.s Board has , ~ no alternative but to uphpld the discharge. ..I In support of its position, the Minister relied on th~ .case -of ~e Re On~oCancer .~ I:nstltu~ Margaret Hosplta1 and 0ntai10 Numes lWs~.tI!m (Priestley) (1993), 36 LAC. (4th) 129 (Anne Barrett). Re ICamLedy Lodge Nu.udng Home and Service Employees Intemational'.Urdon.'Local204'(1991), 18 LAC. (4th), 38 (E.N~ Davis). -. ~ Ms. Lee, for: the Union, took the position that there was no just cause for the tennination. The grievor has -Deen employed for more 'than twenty years. and, is fully aware of the penalty for patient abuse. It simply does-not make sense that he would engage in conduct that would be characterised as patient abuse, particularly when there was at least one witness within hearing distance. The evidence was not as clear as the Ministry has suggested Ms. Fausher did not actually hear he. griever instruct Mr.-A to hit himself. Her_wntten statement of the events did not contain any reference. to those- alleged instructions. Mr. ,Reel'S .evidence was that he heard the griever tell Mr A to hit himself on the head five times and. count it out Yet, he acknowledged that he could not hear the conversation that preceded that event - - _.~ -_.. - -- .- -- ( ( r ~ 26 The evidence 'is-clear, how~ver,that .Mr. A had a history of compulsiv~,behaviour that included shaking hands repetitively and counting out as he did so~ As w~JI, the evidence Was cleat that MrA:woilId have been unable toicomplywith, a s~t of instructions such as the grievor is 8lleged to have given. This Board should' find that ~. A, .in ~tting himself and counting out each hit, was repeating.cmactivity that he has engaged in in the past and that activity waBilot;asa result of any direction from.Ute grlevor~ The Urlion,askedthat .~ -~ the griever .be reinstated with full redress. ; ! < , "I 1 7 Witll respect "to the griever's claim thafhiS.'discharge was motivated by discrimination on .' the basis of union activity, the griever's evidence was that h~, unliKe other employees, was - I ., ~ -, given a difficUlUiItle getting time offforuniQn bus~anQ., when :he.},V8$ granted the time ,off, waS 'reQuire8",to find his own :replacement The uniop t~k the position that the employer saw an opportunity to. rid itself of Ii union activis~ ~d tpo~.advantage of it. , j . ~ ~ DEClSION 'I t I , In 'the nonnal course 'of an arbitration llearing' concerning a gnevance -~eging unjust discipline, a board:'of arbitration ItlUst make 'tWo independept dete.rminations:whether the grieVer is guilty of the misconduct 'alleged; and whethet~tc:onduct warrants the , particular discipline imposed .,. .- f ..>..-: t:h'~', ..:- 4l w~ ....' , ~~. j.- " 1< ! j With respect to the first issue in the instant case, the grieV?r .has been accused of ! ~ " i . 'f' ,oj;> r., I \ ( ; ~ 26 engaging in. patient abuse :by' instructing the patient to hit himself on th~; he~cl .5.ve times and to count out 'as he did so. There were three .witnesses to th~ actJlal in~ident; the grievor, Ms. Penny Fausherand Mr. Rea. Ms. Faushercandidly admitted tllat~1.:te did not hear an of the grievor's conversation'witlt<the patient but she. did hearenough'~o conclude that the patient was acting;'on the grievors instructions when h~. hit ~elf on the head aild connted out loud with each,'hitMr.-,Rea,hoWever, testified t}lat he did hear the ~ .~ grievor teU Mr. A to hit himself on the head and count out loud as ,h~'did sq. The Board is persuaded that the evidence of Mr Rea and Ms. Fausher shoulc;l,b~ preferred over that of the grievor. Both witnesses had very little previous experience with..the grievor and there was no suggestion that there was any ulterior motive for their evidence. They gave their evidence in a clear and f6rthri~ht manner. Their $Vidence at the hearing was consistent with the signed statements they made.at the time of the mcic;l~pt In brief, there was no reason to doubt'the evidence of Mr. Rea or. Ms. Fausher. ~ . i t' In conclusion, we find that the grievor was guilty of the conduct alleged. That conclusion leads us to. the 'second issue, that is whether the penalty was appropriate in the circumstances of the case. The nature of the offence is a critical factor in detennining what penalty is reasonable in the circumstance-so The Board has found that -, the grievor instructed the patient to ~t himself on the head five times and to count out loud as he did so. We are satisfied, based on the evidence, that the fact the patient was able to comply with those instructions indicates a learned respons~ from. a previous time I ( ~ .~,. :, '" 27 ~d unit. 'Dr Bartolucqi's evidepce was th$t the, ,patientcow.d .not .fo~~ow directions involving mote than one; 'or two steps at ~ time. Mr. ~ wouldhave.,b~~n ~capable, according to Dr Bartolucci,~of carrying ,put the various steps of the grievc;>r's ~tructions uriless he had been taughf that response o~r a~prolonged p~ric;>d: of tim~. Inc;ieed, Mr. Kennedy's notes oUilirintemew with,the grievQr ~cU.cated that the grievor aClalowledged tl'iat Mr. A had been taughtthat behaviour on his Pf.e~ous .t11V.t. Thegrievor denies making .~ .~ that statement but, based\'O,n.Dr. Bartolucci's ~vicience, we are of the, opirq.oIlJtis more likely. than not that the grlevot did. concede a previol1l:3 awareness of this learned behaviour. ~ 1 , Whether thiS Board woUld agree that. in ,the circums~ces of tJ;Us case, that conduct constitU~spatient abuse.ifHrrelevantgiven-that ~ Union and.t1\e griev.or have conceded that misconduct falls within the definition of patient abuse found in the Ministry of Health's Corporate Policy and Procedure manual, which is "the wiifuI psycholOgical or physical injury; neglect. or mistreatment of. a.patient'l '". Further, the Policy and ProceduraL manp~, under~ the heading of ~STAFF DISCIPLINE states thefoUowing: - ~ Is li!andatO%y In cases ofp~ I)8Uent ~,and ~ofrence reJattilg to the employee's duties. The reasonableness of thatpollcy was not challenged. I - H~ving detemiined that it has beenproV'en that the grievor engaged in the misconduct l .. - -' :f~~ .',!1&".. ...... ( ( I 28 alleged and in light of the parties agreement that misconduct is patient abuse, there is no l . need for this Board to address the next issue, which would be, in the majority of cases, whether the poiicy ought to be applied.in this case. The evidence if all of the 'Wi~ess, without exception, was that they were aware the penalty for. patient abuse was instant dismissal. The uncontradicted evidence of the administrator of the-Hospital was that the policy has been consistently applied. There was no suggestion that the policy was ~ - unreasonable or that the circumstances of this. case were deserving of exceJ;?tional or unusual consideration. Accordingly, this Board must conclude that the application of the policy was warranted and that discharge was the appropriate penalty The grievance is therefore denied. -, - I , - ~- - ~- - ~-- - --- - --.- - -- - - 29 Signed this 19 day of Aprid.199S, in Toronto. ~ );da::J -- -2~l oretta Mikus Vice- Chairperson ~4/J;tJC~ Michael Milich Ministry Nominee "I Dissent" (dissent to follow) Tanuny Browes-Bugden Union Member