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HomeMy WebLinkAbout1997-0004.DOMACINA98_04_28 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO . _ _ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (4H5) 32(j-13~ GSB #0004/97 OPSEU #97B3 80 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Domacma) Grievor - and - The Crown m RIght of Ontano (Mimstry of Health) Employer BEFORE S Stewart Vice-ChaIr FOR THE C Flood UNION Counsel KoskIe Minsky Barnsters & Sohcltors FOR THE D Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING July 2, September 10, 17, 1997 October 6, 7, 1997 November 13, 1997 December 3, 22, 1997 DECISION The grievor, Mr D Domacina, was employed as a Registered Nurse at the Queen Street Mental Health Centre He commenced his employment in that position in February, 1989 Mr Domacina became a Registered Nurse in 1977 Prior to working in his current position, Mr Domacina had worked for the Employer as a Registered Nursing Assistant The grievance before me arises from Mr Domacina's dismissal There was no objection to my jurisdiction to hear and determine the matter Mr Domacina was discharged by letter dated February 7, 1997, signed by Allison Stuart, Administrator, the text of which states as follows I have reviewed information from Mary Dwyer and Ellie cifra, Nursing Coordinators, Nursing Services, concerning two incidents relating to your inappropriate behaviour with a staff member and an allegation of patient abuse An investigation determined that you acted in an inappropriate manner towards a co-worker This is not the first incident of such behaviour You have previously been suspended for 15 days for verbal sexual harassment against a co-worker This latest incident shows that you have not taken our instruction and you have not corrected your behaviour The second incident involved the physical assault of a patient This witnessed incident of patient abuse and your subsequent inaccurate and misleading reporting of the events are not acceptable As a result, you are dismissed from your employment at the Queen Street Mental Health Centre effective February 7, 1997, for cause in accordance with section 22(3) of the Public Service Act Termination documents for your signature will be forwarded to you shortly by registered mail You are 2 not to enter the Centre's property without my explicit permission You are advised that you have the right to grieve this dismissal under Article 22 8 2 of the ontario Public Service Employees Union Collective Agreement There was an issue in this case relating to the use of certain documents in Mr Domacina's file The issue arises from the following provision of the Collective Agreement 22 15 DISCIPLINARY RECORD 22 15 1 Any letter of reprimand, suspension or other sanction will be removed from the record/files of an employee three (3) years following the receipt of such a letter, suspension or other sanction provided that the employee's record/files have been clear of similar offences for the past three ( 3 ) years Any such letter of reprimand, suspension or other sanction so removed cannot be used in any subsequent proceedings There was no dispute that certain documents which ought to have been removed from Mr Domacina's file in accordance with this provision remained in his file and were reviewed by Ms Dwyer This review, along with her investigation of the allegation of patient abuse, formed the basis for a report prepared by Ms Dwyer, in which Mr Domacina's termination was recommended The report was received by the ultimate decision maker, A stuart Ms stuart's unshaken testimony was that in reviewing the entire matter in the context of determining the appropriate Employer response, she was fully cognizant of the provisions of Article 22 15 1 of the Collective Agreement and 3 applied it to exclude consideration of "stale" matters which ought not to have been considered pursuant to that provision It is the Union's position that Mr Domacina's termination is a nullity In this regard, Mr Flood referred the Board to decision of the ontario Court of Appeal in Molson's Brewery (Ontario) Limited and Local 304, Canadian Union of united Brewery, Flour, Cereal, Soft Drink and Distillery Workers (unreported decision dated June 14, 1983) in which a decision of the Divisional Court quashing an arbitrator's award was upheld (unreported decision dated December 30, 1982) , except in relation to the Divisional Court's remedial order Article 11 of that Collective Agreement provided as follows In the imposition of discipline, if an employee has not been formally disciplined for the same or a related offence for an interval of one year (two years in the case of suspension) his previous offences will not be referred to But, in any event, discipline imposed will not be referred to after the expiry of three years from the date of discipline The grievor in that instance was discharged by letter, signed by a supervisor, in which specific reference was made to his prior discipline record as a consideration in the decision to discharge The evidence established that the supervisor had considered the disciplinary record of the grievor without limiting consideration as contemplated by the Collective Agreement On the basis that the ultimate decision-maker, the vice-president of personnel, had not reviewed the record, it was 4 argued that there was no breach of Article 14 The arbitrator, at p 12 of the award (November 17, 1981, Saltman) accepted the Employer's position in that regard, but went on to say that there may have been a "technical breach" of Article 11, but that since the provision was directory, rather than mandatory, the discharge was not nullified The Divisional Court commented on the matter as follows at p 4 Even though Mr Burkett was the senior management person involved in making the decision to discharge, we cannot regard the arbitrator's findings as meaning that the recommendations of Mr Burtt and Mr Busch were not to be given any weight in the situation It would be unreasonable to suggest that their recommendations would be completely disregarded by Mr Burkett in making his decision At pp 5-6 of the decision, the Court went on to state In this case, for the reasons I have given, we are satisfied that the company did attach some weight to the prior offences or the discipline record in its decision-making process and therefore, it acted in breach of Article 11 on any reasonable interpretation The arbitrator decided that Article 11 was directory only In our view, the interpretation of the clause is not one which the words of the collective agreement reasonably can bear If Article 11 were directory only, it would be of no value whatsoever to the members of the union and might just as well not be in the agreement We are of the view that it is a mandatory clause and that the company was in breach of it in this case That being so, the discharge of the grievor was not in accordance with the terms of the collective agreement In our view the respondent company had no right under the collective agreement to discipline or discharge the grievor in circumstances in which it attached significance or weight to his prior discipline record For those reasons we quash the arbitrator's award and 5 remit the matter back to the learned arbitrator with instructions to give proper effect to Article 11 of the collective agreement in accordance with our reasons Even if I were to accept that Article 22 15 1 of the Collective Agreement at hand is entirely analogous and ought to be interpreted in a similar manner, I am unable to conclude that the facts of this case before me ought to compel a similar result The facts in the Molson's case differ significantly, in that the letter of discharge specifically made reference to the grievor's record which ought to have been excluded, while the letter of discharge here does not make reference to such matters The letter here makes reference to the one matter that the Employer was entitled to rely upon Moreover, given Ms stuart's testimony that she was mindful of Article 22 15 1 in assessing the matter, it is my finding that the Employer did not attach significance or weight to matters that it ought not to have Accordingly, I am unable to accept that the circumstances in this case can support the conclusion that the Union urges upon me In the result, the merits of Mr Domacina's discharge are appropriately dealt with as in the ordinary course, by my adjudication of whether the Employer has met the onus of establishing just cause It was conceded by the Employer that the incident involving a co-worker would not have formed the basis for discharge It was, however, the position of the Employer that the incident of patient abuse was of such a serious nature that it alone 6 justified the ultimate penalty of discharge Ms stuart expressed this view in her testimony I turn now to the allegation of patient abuse It was acknowledged that the patient sustained an injury to his face as a result of an incident involving Mr Domacina, however, Mr Domacina maintained that he was not the aggressor and that he engaged only in a reflexive action of self defence It was the position of the Employer that the evidence supports the conclusion that the injury to the patient arose from an aggressive as opposed to defensive action on the part of Mr Domacina Mr L Whyte, Registered Practical Nurse, testified that he saw Mr Domacina follow the patient down the hall and that he then observed Mr Domacina strike the patient He described the patient as attempting to block the hit Mr Whyte further testified that after the incident Mr Domacina approached him and said "What you saw you didn't see" Mr Whyte was not a member of regular staff He was employed through an agency Mr Whyte had worked elsewhere in the hospital on a regular basis but had only worked on this ward on one occassion previously, some time prior to that day There had been some innocuous discussion between them, however there was no suggestion in the evidence of any animosity on the part of Mr Whyte toward Mr Domacina 7 Just prior to the incident involving Mr Domacina and the patient, who will be referred to as Mr A, a plastic bottle of ginger ale had been thrown Mr Domacina testified that while he was at the nursing station he heard raised voices When he went into the hall he saw a bottle hit the wall Mr Domacina testified that he concluded that Mr A had thrown the bottle He further testified that he did not conclude that the bottle had been thrown at him, nor did he become angry as a result According to Mr Domacina, Mr A left the area to go to his room Mr Domacina testified that shortly afterward, he went to Mr A's room to pacify him Mr Domacina testified that when he approached Mr A, Mr A told him not to come any closer He testified that he did stop, but that Mr A then lifted both his hands and lunged toward his face Mr Domacina testified that he raised his hands to push Mr A's hands away from his face, that his little finger struck the tip of Mr A's nose and that Mr A's own hands struck his own face as a result of Mr A losing his balance Mr Domacina's evidence was that he noticed that Mr A's face was reddened, but that he did not appear to be injured or distressed Mr Domacina denied that he walked toward Mr Whyte, testifying that he walked the other way He denied that he made the statement that Mr Whyte attributed to him, testifying that said nothing to Mr Whyte at this time Mr Domacina testified that he went back to check on Mr A and noticed tissue in his nose that he thought was 8 bloody As well, he noticed an abrasion on Mr A's cheek, which he described as "chipped" Mr Domacina testified that when he saw the injuries he felt that he had to report the matter and have the patient seen by a doctor Mr Domacina reported to Mr Rodilla, his supervisor, that Mr A had been injured but that the patient could not explain the origin of his injury Mr A was seen by a doctor who had come in to see other patients Mr Domacina prepared two reports of the matter, in the clinical notes and the patient condition report, both of which indicate that he was unaware of how Mr A was injured His report in the clinical notes states At 10 00 noticed to have [right] side of his face red Asked about the origin of it and threatened to hit the staff Remains suspicious and angry Mr Domacina acknowledged the misleading nature of his written reports and his communication with Mr Rodilla He testified that he "panicked" and that he felt that if he explained what had happened he would be found to be at fault and would be terminated immediately He made reference to a previous termination, in circumstances which he described as a "total fabrication" In that case the Employer replaced the termination with a twenty day suspension This Board, in a decision dated September 26, 1995, determined that verbal sexual harassment had taken place but a threat that had been alleged had not been proven, ultimately reducing the penalty to fifteen days Mr Domacina testified 9 that he intended to provide an accurate version of the events to his regular supervisor Ms J Almond, the next day When Mr Domacina was asked about the incident in the course of the Employer's investigation he acknowledged that he was aware of the origin of Mr A's injuries, and explained that his actions were defensive There was evidence adduced relating to other events taking place around the time of and subsequent to the incident involving Mr A and Mr Domacina Mr Whyte testified that he and another RPN, N Wheatle, were assisting a patient to the washroom when, as previously indicated, he saw the patient and Mr Domacina walk by and then saw Mr Domacina hit the patient Mr Whyte testified that Ms Wheatle would have seen the two pass by and would also have seen Mr Domacina come back to speak to him He was uncertain, however, whether Ms Wheatle would have heard what Mr Domacina said He testified that Ms Wheatle asked him if the patient had been hit and that he did not reply Ms Wheatle confirmed Mr Whyte's testimony that she asked Mr Domacina whether the patient had been hit and that he did not reply While she also testified that she and Mr Whyte were attending to a patient, her recollection of precisely what they were doing at the relevant time differed from his According to her evidence, she did not see Mr Domacina or the patient passing by, nor did she hear Mr Domacina say anything She testified . 10 that she heard a noise like a scream and she then went to the hall, at which point she saw the patient standing in the hall in front of his room At this time, she testified, she asked Mr Whyte, who was in the hall, if the patient had been hit In his written statement, Mr Whyte referred to having confirmed that the patient had been hit when asked about it by another nurse He testified that he did so during a conversation about the incident which took place among nursing staff during a break Present were Mr Whyte, Ms Wheatley, T Habacon, RPN, and B Barron, RPN Ms Barron testified that she made reference to a statement made by the patient about the cause of his injuries I note, parenthetically, that there were a number of statements attributed to the patient in the course of the evidence The patient was not called to testify and there was no dispute that the hearsay statements attributed to the patient could not provide a basis for a finding of fact Mr Whyte testified that when the matter was raised he said that he had seen Mr Domacina hit the patient The evidence of the other persons differed to some extent about precisely what was said at this time Ms Wheatle testified that Ms Barron referred to the patient, stating that he must be confused, and that Mr Whyte then stated that the patient was not confused, and that what the patient said was the truth Ms Barron's testimony was that she referred to the 11 patient being "paranoid" and that Mr Whyte responded by saying that the patient was not paranoid, that the patient was telling the truth, and that he had seen what had happened Ms Barron testified that Mr Whyte also made reference to being a Christian and indicated that if he had to report the incident he would According to her testimony, Mr Whyte said that he had seen it, but did not specifically describe what he had seen Ms Habacon testified that Ms Barron referred to Mr A being suspicious, petrified, scared and paranoid She initially testified that she did not remember a response, however she subsequently stated that she recalled Mr Whyte responding referring to being a Christian and stating that he would testify about the matter if asked to Mr Whyte testified that following the incident, Mr Domacina told him that Mr A had thrown a drink at him Mr Whyte understood Mr Domacina to be providing him with an explanation for his actions Mr Whyte was asked about the matter later that day and he provided a verbal and written statement about the matter Mr Whyte's initial written statement refers to Mr Domacina having hit the patient with his left hand, on the left side of the face, however the document is corrected, indicating the right fist and the right side of the face Mr J Rodilla, Nursing Co-ordinator, to whom Mr Whyte provided the verbal and written statements, testified that he noted a discrepancy between the verbal and written statements and brought it to Mr Whyte's attention Mr Whyte indicated that it 12 was in fact the right fist and right side of the face and the statement was amended accordingly In his testimony before me, Mr Whyte maintained that it was in fact the right fist of Mr Domacina which hit the right side of the patient's face, and that he had initially made an error in the written statement that he had provided Mr Whyte maintained the version of events to which he testified throughout an extensive and vigorous cross-examination He testified that he had a clear and proximate view of the events, and that he was certain about what he had seen and what Mr Domacina had said to him He acknowledged that he should have reported the matter right away, but testified that he felt in a "difficult position" Mr Domacina also maintained that the version of events that he testified to was accurate Mr Domacina acknowledged that he knew of no reason for Mr Whyte to fabricate such serious allegations, however he maintained that the events as described by Mr Whyte simply did not take place I agree with Mr Flood that the Employer is obliged to establish serious allegations of this sort on clear and cogent evidence I also agree with Mr Flood that the comments of the British Columbia Court of Appeal in Farvna v. Chornv [1952] 2 D L R 354, are of particular relevance in a case such as this, where credibility is at issue At pp 356-7 the Court states as follows I 13 If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and of Ravmond v. Bosanquet (1919) , 30 D L R 560 at p 566, 59 S C R 452 at p 460, 17 0 W N 195 A witness by his manner may credit a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth Again a witness may verify what he sincerely believes to be true, but he may be quite honestly mistaken For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come of a conclusion on consideration of only half the problem In truth it may easily be self-direction of a dangerous kind The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command compliance, also state his reasons for that conclusion The law does not clothe the trial Judge with a divine insight into the 14 hearts and minds of the witnesses And a Court of Appeal must be satisfied that the trial Judge's findings of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case After a careful review and assessment of all of the evidence in light of the foregoing principles, I am compelled to the conclusion that the version of events testified to by Mr Whyte is to be preferred to that testified to by Mr Domacina The most striking aspect of the matter, of course, is that Mr Whyte had absolutely no motivation to fabricate these very serious allegations His evidence had the ring of truth throughout There were certain inconsistencies in the evidence as to precisely what was said at the break and, in relation to the testimony of Mr Whyte and Ms Wheatle, precisely what transpired around the time of the incident As well, there was the matter of the initial reference to "left" rather than to "right" in Mr Whyte's written statement Notwithstanding Mr Flood's very able submissions, in which these matters were emphasized, I am unable conclude that Mr Whyte's testimony about what he observed should be doubted The unlikely possibility that Mr Whyte could have been mistaken as to what he observed is rendered even more remote by Mr Domicina's statement, "what you saw you didn't see" to Mr Whyte subsequent to the event I am satisfied that this statement was made This statement is a clear indication of recognition of culpability in connection with the matter Even if I were to accept Mr Domacina's position that his preparation 15 of misleading records was based on a reasonable or at least sincerely held apprehension that the Employer would seize on the matter to terminate him, notwithstanding his innocence, I am satisfied, on the evidence before me, that Mr Domacina did strike a patient and that his actions were not in self defence Both counsel referred me to cases involving assaults on patients There is no need to review these decisions in any detail The cases refer to the high degree of trust that must rest with those persons who are charged with the responsibility of care for the vulnerable While I agree with Mr Flood that each case must be decided on its particular facts, and all relevant matters must be considered, it is my view that the ultimate sanction of discharge is warranted Mr Domacina's seniority is not particularly great and there is a fifteen day suspension on his record Mr Domacina's obligation to support two young children and the consequences of an adverse finding in this matter in relation to his future employment prospects are considerable and important matters However, in the circumstances of this case, where a person in a position of trust has struck and injured a patient, has attempted to intimidate a co-worker to avoid responsibility for his actions and has ultimately failed to fully acknowledge his actions, the factors that weigh in Mr Domacina's favour cannot properly be viewed as a basis for mitigating the penalty of discharge . 16 Given this conclusion, there is no need to deal with the other matter that the Employer relied on in discharging Mr Domacina Even if I were to conclude that no discipline ought to arise from his involvement in that matter, I agree with Ms stuart's assessment that the matter involving Mr A is, by itself, in all of the circumstances, grounds for discharge For the foregoing reasons it is my conclusion that just cause for the discharge of Mr Domacina has been established and there is no proper basis for the mitigation of the penalty The grievance is therefore dismissed Dated at Toronto, this 28th day of April, 1998 ~~ ~, ~:-I ( ,~-,'~ ~ ---~\ . \ S :s-te~ Vice-Chair