HomeMy WebLinkAbout1992-0346.Martin.95-09-13
'"
" .. (
<:,
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE t.'ONTARlO
1111 GFlIEVANCE' COMMISSION DE 9-'
SETTLEMENT REGLEMENT I ~ f"'~t#'"
BOARD DES GRIEFS -'\ \\;J [~f'
'\iJ)
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ON) M5G 1Z8 ,FACSIMILE/TELECOPIE (416) 326-1396
,------~-,~----_.._._-_._.-...~~
R E ,1'~ .~ ~~~\' i (
, :N GSB # 3 4 ~/ 9 2
SEP 1 4 1995 \ O~SEU ,# 92C35~
I
p; , i
).."... k -' !.-
APPL4.L SCAn f) IN THE MATTER OF AN ARBITRATION
----...~~,-
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT )
Before
- 1:
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN ~
\ OPSEU (Martin)
~- -, Grievor
"
- and -
The Crown in Right of ontario
(~tnistry of Health)
Employer
BEFORE: R Verity Vice-Chairperson
G Majesky Member
D. Montrose Member ,
)
FOR THE K -Whitaker
GRIEVOR Coun$el
.. Ryder, Wright, Blair & Doyle
Barristers & Solicitors
-'
~
FOR THE D. strang ,.
EMPLOYER Counsel)
L~gal Services Branch
Management Board Secretariat
HEARING June 7, 1994
December 14, 1994 )
January 9, 1995
Feb;ruary 6, 28, 199'5
May 1, 31, 1995
\ .-
'"
2
'"
DEe I S I 0 N' -
-;
The gnevor, Jantina Martm, a psychiatric nursing assIstant '2 at the Brockville
Psychiatric HOspItal, was discharged effective April 2, 1992 for reasons of unprofessional
\
conduct. In a grievance dated April 7, 1992, the grievor alleges I that she was dismissed
without Just cause. She seeks reinstatelllent as a sWitchboard operator with full remedial
I I
-
redress.
The grievor's difficultIes began in December 1991 with the breakdown of a 20 year
marriage and her subsequent involvement with Daryl Bryne Jones, ,a patient at the
Brockville Psychiatric Hospital. The grievor ended an abusive l11arriage relationship WIth
her second husban~, an alcoholic who had r~gularly beaten her Shortly thereafter, the
griev9r establIshed a relationship with forensic patient Daryl Jones.
-
By way of -background information, in 1975 Jone~ was found not guilty by reason of
insanity of attempted murder, rape and robbery and was subsequently placed on a
-
Lieutenant Governor's Warrant.Smce then he has'been mcarcerated 'atvanous provincial
J
institutions where he developed a pattern of manipulative behaVIour directed towards
female patients and female staff. Jones suffers from a major mental i!l.!less'diagnosed as
-
a personality disorder for which there is no knoWn cure and which IS apparently exacerbated
/
by the use of drugs or alcohol. By all accounts, he is an extremely manipulatIve person.
The hearing before thIS panel proceeded, in part, on the basis of an agreed statement
.......
~
~
-
)
3
of. facts WhICh, reads as, follO'ws.
,- <> ,
1. The gnevor, Jantma Martin, was appo1J)t~d, ~s a casual psychiatric nursing
assIstant at the Brockville PsychIatric Hospital O'n December 22', 1986
Co< EffectIve OctO'ber 19, 1987, Mrs. Martin was apPO'mted to the classIfied
positIO'nof. psychiatric nursing assIstant ~ at the Brockville Psychiatric
Hospital. In May O'f 1991 she was rea:;;signed at her request to the Oxford
Wing, Forensic Service Unit of the Hospital.
2. The Forensic SelVlce Unit of Brockville Psychiatric, Hospital is designated as
a medium secure psychiatric facility and is located in :an area segregated from
the rest of the hospital by double locked perimeter security which prevents
unauthonzed access or egress from the unit as well as internal structural
security inc1udmg double lock controlled access to different wards on the unit,
security cameras and metal detectors. The Forensic Service Unit hO'uses
patients whO' have either been referred by the CO'urts for a psychiatric
assessment in relatiO'n to' a crimina} 'act or whO' have been deemed by the
courts to be not guilty of a crime by dispositiO'n O'rder pursuant to the
Criminal CO'de amendments: A portiO'n of the ,patients are cO'nsidered
sufficiently dangerO'us that they must b~ kept under secure custody while
others are allowed varying degrees of liberty under the strict supervision of
Forensic Service Unit staff. As a psychiatric nursing assistant assigned to'
work on the For~nsic Service Unit, th'e grievor was invO'lved m the care and
treatmen~ of patients including the adn;1inistration of medication and charting?
monitoring security .,cameras, controlling access and egress O'f patients, visitors
and staff to' the unit, condu~ting' personal and ward searches, escorting
patients off the umt and supervising patient itIneraries. Functiorial security \
o~ the Forensic Unit is dependent uPO'nthe vigilance of all staff. Psychiatric
nursing assistants assIgned to the Forensic Umt receIve a $3,500.00 per year
forensic salary allowance in re~ognition of the dutIes perfO'rmed in relatiO'n to
security -
\
3. Patients with privileges allO'wmg them to mO've abO'ut the facility are required
to do so under various reporting or escort requirements. Patients who are
allowed the opportunity to leave th(! hospital grO'unds do so O'nly in
accordance with a strict itinerary Patients are required to maintam their
rItinerary while away from the'facihty and are spot-checked by staff. Patients
who do not maintain their itiheraries are subject to further restrictIons on
their liberty
4. The grievor and other P.N.A.s are given access to the patients' clinical
records. They are expected to make observations and notations m those
records and to be familiar WIth clmical history and problems associated with
-
\...
~
~ ..
'"
4
patients under their care and supervlSlon P N.A.s are requIred to attend
daily mornmg reportmeetmgs, treatment confer,ences, and Kar9.~x"as well as
to review all inCident reports and are thus made fully aware of the status of
all patIents on the UllIt. The grievor and other P.N.A.s receIve trammg and
orientation in both secunty procedures and the care and mOnItoring of
'psychIatric patIe'nts. '\i l
}
5. On February 27, 1992, the. 'employer .issued a dismlssal letter to tbe grievor
~, for engagmg in unprofessIOnaJ coli duct and aldmg a patient to breach a
warrant itinerary A grievance was filed and a memorandum of settlement
entered mto whereby Mrs. Martm agreed to the mitlgation of her dismissal
to a demotion for cause to the positlOn of switchboard operator effective
February 27, 1992. Mrs. MartIn also..:agreed to be barred from access to the
Forensic Unit for- the duratlon' of the patient.in question's stay at the unit.
6. Mrs. Martin has been absent from duty since January 5, 1992 as a result of
a compensable mjury It was' understood by the employer that she would be
fit to return to work on 'March 12, .1992. Prior t9 ,her return to work, she was
arrested, and charged with assistmg an mmate t9 ~scape custody on March 7
and 8, 1992. Consequently, she was suspended by,the employer on March 9,
1992. She ult4nately pled guilur and admitted fa,cts which permitted the court
t6 fiild her guilty of the offence of assistmg Daryl :aryne Jones, a patient in
the. ForensiC Unit of the Brockville Psychiatric Hospital, to escape lawful
~ustody on March 7, 1992 contrarytos.147(a)Qf the Criminal Code.
7. On March 26, while under suspension from employment and awaiting a pre-
disciplinary hearing iri connectlonwith the allegations of mIsconduct relatIng
to March 7. and.s of 1992, the' grievor-was arrested on the grounds of the
, 'Brockville Psychiatric Hospital. She was charged with trafficking in narcotics
on March- 25 and 26, 1992. These charges-related to her obtainmg drugs
unlawfully by "double-doctoring" andattemptmg to smuggle those narcotics
'to a patient lir'the ForenSIC Unit. She attended at, the facility to meet with
a forensic unit patient who had ground privileges outside the Oxford Wing
and to pass to that patient drugs whIch he was to then transport into the
Forensic Unit. The grievor was charged with six counts of "double-doctoring"
between January 28, 1992 and March 18, 1992. She pled guilty to two counts
and admitted facts which permitted the court to make a finding of guilt on
those two counts of "double-doctoring" The 'grievor was also charged with
trafficking in ,narcotics on March 25 and.26 of 1992. She pled guilty and
admItted facts whiSh permitted the court to find her guilty of trafficking m
narcotics in relatIOn to her acbvities .on the grounds of 13,rockville Psychiatric
Hospital on those dates. /
The grievor's actions. and those of Daryl Jones attracted wide spread attention in the
,~
----------
--
""
(
f
5
local press. In addItIon, the gnevor's conduct was brou,ght to the attentIon of the DIscIpline
Committee of the College of Nurses of Ontario. FolloWIng a heanngon June 18, 1993, the
\ i
~j; 1
j grievor was found guilty of professIOnal mIsconduct under the Health Disciplines Act, R.S.O
1990, c.HA and, her Certificate of Competence was suspended for a penod of 12 months
from June 18, 1993 to June 18, 1994 The dIscipline committee's deCIsion also included the
provisIOil that following the grievor's suspensioIl, her Certificate of Competence would be
subject to the following restrictions:
I (i) You shall not engage in the practice of nursing in any forensic facility namely,
a facility and/or a unit within an institution where you may be requireci to
proVIde nursmg services to persons who are being held in respect of criminal
charges or who are the subject of a Lieutenant Governor's Warrant; and
(ii) You shall not ~ccess or- administer any narcotic or controlled substances
except under the supervision of another registrant who is aware of this
restrIctIon and then only in employment with an employer who IS aware of
this deciSIOn.
-
In addition to the agreed statement of facts, the employer called five 'witnesses;
namely, RIchard Cole, Brockvl11e Psychiatriy Hospital Nursing Services Co-ordinator; Dr
Neil Connacher, Psychiatrist-In-Chief, Brockville Psychiatric Hospital, Ruth Tappenden,
- ~
Head Nurse of the Forensic Ward at the hospital; Jean Mills, Manager of Nursing Services;
and Tim Little, Assistant Administrator at the Brockville Psychiatric Hospital.
Richard Cole testified with regard to the reorganizatIon of the forensic program at
" the hospital in 1991 and that all forensic nurses, including the grievor, had the benefit of
an eIght day onentationprogram in the fall of 1991
.,;
! 6
Dr Cohnacher testIfied that he had no direct involvement with Daryl Jones.
\
However, for the benefit of the panel he reviewed III material parts the medical recoros of
Jones and testified that the staff of the hospital were aware that thIS patIent possessed
IIsigmficant mampulatIveskills,"
..
,- .
Forensic Head Nurse Ruth Tappenden gave evidence that on two occasions in
December 1991 she cautioned the grievor against becoming overly involved WIth a,patient.
AccordIllg to Ms. Tappenden, the grievordenied any involvement with Daryl Jones. Ms.
Tappenden stated that It was "an everyday occasionll where a patient would attempt to
manipulate staff and that all forensic'sta:ff were well aware Qf that fact.
-
Brockville Psychiatric Hospital Assistant Administrator" Tim LIttle gave evidence that
he made the decision to dIsmiss the grievor His reason~were essentially threefold, namely,
-
the grievor's involvement with a breach of Daryl Jones' itinerary; the grievor's actions in
assisting Jones to be unlawfully at large; and smuggling a narcotic, namely Codeine,
I
generically known as Fiorinal C. 1/2, into the hospital for the ~se of a forensic patient.
!
The gnevor testIfied at length as to the circumstances of her marriage breakdown in
December 1991 and of her subsequent involvement with forensic patient Daryl Jones.
AcCording to her evidence, she stayed WIth Jones and his family in Toronto for several days
after Christmas of 1991 and that a sexual relationship followed in February of 1992. In her
words, III was like a puppet on a string I did whatever he said.1I The grievor
acknowledged that on June 8, 1992 she pleaded guilty to two counts, of "double-doctonng",
I
,
)
7
one charge of assisting Jones In escapIng from the custody of the Brockville, Psychiatric
I.
HOSpItal and one charge of traffiCkIng In a narcotiC. The' grievor' testIfied that she pleaded
guilty OIf the advice of her lawyer However, the grievot also testified that she did not
\
understand lhat douhle-dbctonng was an offence, that she did not help Jones escape and
"-
that she did not believe that. she was trafficking in a narcotic when she attempted to give
her own prescription for Fiorinal to Jones. The grievor claims that she' was manipulated
, by Jones at a partIcularly vulnerable time 'In her life.
,
\
J
Daryl Jones waS granted an absolute discharge from the hospital by the Ontario
Criminal Code Review Board in December 1992. In spite of all that had transpired, the
grievor allowed Jones to live with her in Brockville for approximately a year thereafter
Tragically, Jones is currently charged with tIie mutder of an elderiy'Brock:ville senior citizen.
Two additional witnesses were called 'by the union to testify ~ to the grievor's
rehabilitation. In sum, both witnesses concluded that the grievor had experienced "a total
turn around'; and -that Jones had been a destabilizing influence on het life.
-,-
-
The employer argues that in light of the grie~or's abhorrent behaviour, the element
-
I
of trust in the employment relationship has been irreparably damaged. Mr Strang contends
J
r
that there are no grounds to mitigate the penalty imposed. In . support, the employer cited
the following authorities: Re Regina and Jones et al. (1994), 17 O.R. (3d) 26 Ont. C.A., Re
Government of Province of Alberta and Alberta Union of Provincial Employees (1992), 29
, ~ \
L.A.C. (4th) 353 (McFetridge), Re Kennedv Lodge Nursing Home and Service Employees
I
(
8
International Dnion. Loca{,204 (19~J), 18 L.A.C (4th) 38 (Davis);.Re Emergency Health
Services Commission and Ambulance Paramedics of British Columbia. C. U.P.E.. Local 873
. ..... ' . . - -. .
;
_ (1987), 28 ~.A.C. (3d) 77 (McColl), OPSEU (Szune;ko) and Ministry ofth,e Solicitor General
GSB 1947/92 (Gorsky), OPSEU (Holmes) and Ministry of Transportation GSB 1904/92
, !' . ~ . ~~
(I).aplan),and T. Vigneux and Liquor Control Board of Ontario GSB 49/81, 238/81, 264/81
) . - ;. 1. ' ~ ~ - - ..
I (Draper) .r
The union acknowledges that the grievor's conduct warrants discipline but contends
that discharge is not the ~ppropriate pen~lty Mr Whitaker contends that the grievor's
conduct with Daryl J ones was an aberration in an otl;J.erwise satisfactory working career and
) that she was acting with "diminished capacity" of 3:ppreciating the consequences of htfr
actions. The union submitted that while the grievor acknowledged the culpable conduct,
( p
there must be some apportionment of responsibility upon the employer who knew of the
grievor's limitecJ. foren~Ic experience and of the patient'sreputatioli as a master manipulator
It was the union's position that there was no evidence to suggest that the grievor could not
)
work at the hospital as, a switchbo~rd operator Mr Whitaker referred to the following
~
authorities. Re Corporation of City of North York and Canadian Union of Public Emplovees.
Local 94 (1994), 4~ L.A;C. _(4th) 52 (Splomatenko), Re Roval Oak Mines Inc. (Hopebrook
Mine) and United Steelworkersof America. Local 9196 (1994), 40 L.A.C. (4th) 337 (Alcock),
Re Colchester East Hants District School Board and Canadian Union of Public Emplovees.
Local 1047 (1993), 34 L.A.C. (4th) 72 (Kydd), Re Emergency Health Services Commission and
Canadian Union of Public Emplovees. Local 873 (1988) 35 L.A.C. (3d) 400 (Black), Re -
\" ," .
~ MacMillan Bloedel ~t& and I W.A.-Canada. Local 1-85 (1993) 33 L.A.C. (4th) 288 (Hope),
.
~
~
\ 1
.-/
9
Re Boise ,Cascade Ca.n.ada Ltd. a,nd Canadian Pal!e:w(~rke~s if,n,ion. Local 306 (1991), 20
L.A.C. (4th) 355 (DIssanayake), and Re Canada Post f;f?,'I?_and €anadian Union of Postal
Workers (Hurlv) (1991), 19 L.A,C. (4th) 88 (T.A:B Jolliffe).
. ,
\ i
In the instant C(ise, there is p,q contest that the grievor committed serious culpable
mIsconducJ. The real Issue IS wh~th~r or not discharge is th~ appropHate penalty in the
.r
tragic circumstances of this case.
~
I
From the authorities submitted, the panel is obligated to consider whether the facts
of thIS case are consistent with the possibility of any restoration of the employment
,
relationship. Ge~eralmItigating.factor~ have beep enume~~ted,m numerous arbitral awards
involvmg breach of trust. For example in. Re Ca,!adian Broadca~~ng Corporation and CUPE
') (1979),23 LA.C. (2~) 227 (Arthurs), a case involvmg tq.eft the learned ~rbitrator' set out
the following fac~ors,at pp. 230-1
Is discharge the only possible response to' emplayee misconduct ~yalving suc~ a breach of trust?
Counsel far both parties submitted extenswe, but af caurse nat binding, arbitral autharity an tIns paint.
I have examined all autharities cited, and I believe that the fallawing summary accurately reflects their
significance. The alder cases generally (but nat inevitably) treated theft o.r dishanesty as an affence which
warranted autamatic discharge; mare recent cases, especially thase decided by arbitrators subscribing to
tbe theary of "carrective disciplIne''; do. nat treat dishanesty as Pl!r. se grounds for discharge; and variaus
nntigatmg factars have been identified as Justifying the subStitutian of a lesser penaltY far dJscharge m such
cases. Such factors include:
(1) bona fide canfusian ar mistake by the gnevar as to. wl,1eth,er he was entitled to. do. the act
complamed af;
(2) the grievar's inability, due to. drunkenness ar emational problems, to. appreciate the wrongfulness
of his act;
(3) the IIDpulsive ar non-premeditated nature af the act;
"
),
.
-
I
,.,
10
(4) thc relatIvcly tnvlal naturc of thc harm done;
(5) the frank acknowledgemcnt of his misconduct by the grievor,
(6) the existence of a sympathetIc, personal motive f9r dishonesty, such as family need, rather thab
hardened crimmahty; , .
(7) the past record of the ~rievor;
(8) the gnevor's future prospects for likely good behaVIour, and
(9) the economic impact of discharge in view of the grievor's age, personal circumstances, etc.
But these factors, while helpful, are not components of a mathematical equation whose computation will
Yield an easy solution. Rather, they are but special circumstances of general consIderations which bear
upon the employee's future prospects for accrptable behaviour, whic~ ~ the essenct( of the whole
corrective approach to discipline. How well br badly thegrievor had' behaved in the past is SOme
indication of his likely future behaViour How aggravated or trivial was the offence is some clue to the
risks the employer is bemg asked to run if the grievor is reinstated in employment. And how seriously the
discharge will affect the grievor IS at least one (but not the only) measure of whether a reasonable balance
IS struck between the other two considerations.
In our view, the foregoing-is an approach which applies with equal force to any case
of breach of trust. In the particular circumstances of this case, the grievor's misconduct and
'her subsequent convictions for aiding'an escape, for double-doctoring and for trafficking in
a narcotic all relate directly to the workplace. It must be-said that they are serious incidents
which reflect poorly on the grievor's judgment and on the'viability Of the employment
relationship in general. There can be no doubt that the hospital has a legitimate interest
in maintaining a positive relationship with the cOnimunity,given its program of patient access
to the community
.'
~ In our view, the hospital took reasonable steps to cau'tion the gnevor as to the
danger of establishmga personal relationshIp with a patient. We are'satIsfied that the
gnevor as a professional health care worker was well awar~ of the impropnety of h'er
actIOns. We note in passing, however, that contInuing education should be made available
;
.
i
..
'-
)
11
on a regular baSIS to employees in the forenSIc umt, given the difficult and demandmg work
enVIronment.
We are not without sympathy for the grievor's plight which occurred at a time when
\
she was particularly vulnerable to the overtures of a skilled manipulator In addition, we
are satisfied that her mental state was a contributing factor in her actions. Clearly, she was
the victim of an unscrupulous character However, her subsequent conduct in
establishing a continuing relationship with a forensic patient at the hospital and conducting
herself in an unprofessional manner with that patient falls far below the standard of conduct
') expectedofa : professional health care worker
\
.J
The evidence established that there is no position at the Brockville Psychiatric
Hospital which does not invoJve direct patient contact In particular, evidence was adduced
that a switchboard operator is entrusted with the keys of the facility It is noteworthy, we -
think, that a psychiatnc assessment of the gnevor, dated June 3, 1993, by Kingston
Psychiatrist pr D Oliver, contains the following statement: "She is clearly vulnerable to
troubled males and should therefore avoid situations in which she may be victimized."
Further, Itis not without significance that the grievor was discharged previously on February
-
- ,-'
27, 1993 {or u:Qprofessional conduct in aiding and abetting Daryl Jones to breach a warrant
Itinerary That matter was resolved by way of memorandum of settlement in which the
penalty of discharge was mitIgated to a demotIon to the position of switchboard operator
The primary purpose of the imposition of discipline is the correctIon of unacceptable
, (
behaviour Indeed, it is the opportunity to enable an employee to return to standard norms
--------- -- - ------- - - - -
'5' -...
~
12
of behaVIour Unfortunately, the gnevor does not appear to have benefited from the
I,
remstatement to another posItIon follOWIng her first dIsmIssal.
On balance, we are cons~ained to find that the employer hadjust cause to discharge
the gnevor Given the ser~ousness of her misconduct, the fact that ,prior dIsclplme failed
to ch,ange her behaviour, and having carefully considered the viability of a restored
"
employment relationship, we are not persuaded that this is the proper case to exercise our
dIscretion to mItIgate the penalty imposed. In sum" we are satisfied that the gnevor's
employment relationship WIth Brockville Psychiatnc Hospital cannot be res~ored. For these
reasons, we must dismiss the grievance.
DATED at Brantford, Ontario, this 13 day of September, 1995.
~--
~~ -,- -- ~ ~-~
~,-, -~ - -:;:~ -- Z....................
) I R.L. VERIlY,Q.C - VICE-CHAIRPERSON
"I Partially Dissept"
G. MAJESKY - UNION MEMBER
~' ~... ~~
-
.D. MONTROSE - EMPLOYER MEMBER
~ /'
\
-