HomeMy WebLinkAbout2003-1461.Press.07-10-09 Decision
Crown Employees
Grievance
Settlement Board
Suite 600
180 Dundas Sl. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
reglement des griefs
des employes de la
Couronne
Nj
~
Ontario
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tel. : (416) 326-1388
Telec. : (416) 326-1396
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GSB#2003 -1461
UNION#2003-0329-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
BEFORE
FOR THE UNION
FOR THE EMPLOYER
HEARING
Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union
(Press)
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Loretta Mikus
Ed Holmes
Counsel
Ryder Wright Blair & Holmes
Sunee1 Bahal
Counsel
Ministry of Government Services
December 15, 16,2004
September 13, 28, 29, October 25,26,
November 7, 8, 2005
March 23, April 19, June 14, August 16,
2006.
Union
Employer
Vice-Chair
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Decision
The gnevor, Keith Press is employed as a Registered Nurse at the Mental Health Centre
Penetanguishene at the Oak Ridges Division. On January 24, 2003 he was suspended with pay
pending investigation of allegations of patient abuse on Ward 7, the admissions ward.
Ultimately he was cleared of all allegations and returned to work. However, it is his claim that,
as a result of the deliberate failure on the Employer's part to follow its own policy and procedure
respecting the preliminary stage of the investigation into these allegations, he has suffered public
humiliation, emotional distress and irreparable damage to his life, including the enjoyment and
fulfillment he had enjoyed as a nurse. He has grieved the suspension on those grounds and asks
for damages to compensate him for the harm that was done.
His grievance alleges a violation of article 9.1 of the collective agreement
The Employer shall continue to make reasonable provision for the safety and health of its
employees during the hours of their employment. It is agreed that both the Employer and
the Union shall co-operate to the fullest extent possible in the prevention of accidents and
in the reasonable promotion of safety and health of its employees.
FACTS
Oak Ridge Psychiatric Hospital IS a maXImum security facility operated by the Ministry of
Health and Long-Term Care, which has the capacity for 125 patients, although in more recent
years that occupancy rate has decreased. The wards are divided into programs. Ward 01 and 02
are included in the Active Socialization Program. Ward 1 contains volatile patients who are
ready for therapy, including group therapy, and discharge planning. Wards 4 and 5 are located
side-by-side and are part of the Independent Living Program for clients who are considered to be
model clients and who have greater privileges. They are stable on medication. Generally, they
have been diagnosed with some form of personality disorder and were described by the grievor
as being challenging. Wards 5 and 8 are designated for the Structured Intervention Program for
the cognitively impaired patients. These patients are often self-abusive and require structure and
direction. The last unit, Ward 7, is part of the Forensic Assessment Program, or the admission
ward. All new clients are admitted to this award and can be classified as NCR (Not Criminally
Responsible) or D. O. (Dangerous offender). They have been admitted involuntarily because it
is feared they will be a risk to themselves or to others or they are unable to take care of
themselves. Sometimes clients are unable to give instructions to counsel during court
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proceedings and they are admitted for assessment. The average stay on Ward 7 depends on the
reason for the admission, available beds and a general reluctance to discharge a client who has
nowhere to go.
The grievor began working for the Ministry of Health in 1979 as an unclassified correctional
officer. In 1980 the Employer sponsored him in the Nursing Assistant program offered within
the facility and in the spring of 1981 he won a competition for a classified position as a
Registered Nursing Assistant on Ward 07. He worked in that position until 1987 when the
Employer paid his full wages while he attended Georgian College to receive a nursing diploma.
While he was attending school he worked at the facility during the summer months and during
the school breaks. In 1990 he graduated as a Registered Nurse and worked in that capacity until
the events giving rise to this grievance. As a registered nurse his level of responsibility increased
considerably over time and included assessing, evaluating, treating and maintaining patient care
plans for each patient. As an RN he was responsible for administering all medications and
treatments, consulting with physicians as part of a multidisciplinary team, acting as a patient
advocate and fulfilling a security role. R.N.s were designated Team Leaders or Charge Nurses
and at times would be designated Nurse Managers when the Nurse Manager was absent. The
grievor was highly regarded as a registered nurse and fulfilled all of these roles during his
employment. He explained that there was no extra pay for the added responsibilities and
therefore it was not regarded as a coveted role by most of the other registered nurses.
With respect to his security duties, it was often necessary to put patients into restraints. When
that happened the staff was required to fill out an incident report, note what had happened in the
patient's file and report the event to the shift Nurse Manager. The Nurse Manager then was
responsible for interviewing the client to assess whether he had sustained any injuries and
interviewing the staff involved. When the versions of the participants and the staff members
involved seemed to be inconsistent or in conflict, the Nurse Manager was responsible for
investigating those inconsistencies. The incident report would then be forwarded to the Ward
Supervisor, to the Unit Coordinator, the Chief Nursing Officer, and, finally, to the Clinical
Director, Dr. Jones.
As far as the grievor was aware, the Employer held him in high regard. He was a good nurse and
had fulfilled a number of administration roles over the years. His evaluations had been
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exceptional and it had been noted that he was efficient, effective and skilled in dealing with
unmanageable clients. He was known to be a leader. In fact, an evaluation done six months
before this incident had noted that the grievor was respectful maintained a safe environment and
was capable of applying restraints without injury.
He became aware of rumours circulating about an investigation over allegations of patient abuse.
His name was one of the names being mentioned in these rumours. Sometime in December of
2002 he was told that Mr. Michael Fournier, the Ward Manager, and Ms. Donna McLaughlin,
the Director of the Forensic Assessment Program, would be conducting the investigation into
these rumours and would be interviewing all of the staff on the Forensic Unit. He was told by
Mr. Fournier that this would be a preliminary investigation.
Rumours continued to circulate but now they included specific mention of the grievor. Three
staff people told him that Diane Desjardin, another RN on the Unit, had reported some staff in
the Forensic Unit to management and that he was one of the staff she had named. He did not
know whether it was as a suspect or a witness.
Those rum ours caused him great concern and he approached Mr. Fournier to ask whether they
wanted any clarification from him about these rumours. He offered to be available to answer any
questions they might have that could help their investigation. He also reminded Mr. Fournier
about the need for confidentiality and told him that if he had concerns about him, he should
speak to him directly and not be influenced by the rumours.
Mr. Fournier looked uncomfortable. He acknowledged that the grievor's name had come up
during the investigation but refused to tell him what had been said and by whom. Mr. Fournier
also tried to raise some long-standing performance issues but, when the grievor asked why these
concerns had never been raised during his performance appraisals, Mr. Fournier refused to
elaborate.
On January 7, 2003 the grievor met with Mr. Fournier and Ms. McLaughlin as well as Mr. Bill
Play ton, a Union Steward. At the request of the Union the Employer had provided those being
interviewed with the following questions in advance of the meeting
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The College of Nurses professional standards and ethical framework states it is our
responsibility to create an environment that promotes and supports safe, effective and
ethical practice.
It has come to my attention that there are areas of concern regarding the nursing practice
on 07.
1.
3.
Can you describe the (your) work environment on 07. Do you have any concerns
regarding the nursing practice on 07.
You are familiar with P-9 Aggressive Behaviour Management. Do you have any
knowledge or have witnessed excessive force when restraining a patient. (sic)
Do you have any knowledge or have witnessed teasing or goading of patients.
(sic)
2.
The grievor responded as follows:
1. I work in a cooperative environment. I have no concerns at this time. Any
concerns have been in the past. I spoke directly to you about them. No concerns
about nursing practice.
2. I have not witnessed any excessive force being used.
3. No, I have not.
No other questions were asked and no other information was exchanged during the meeting. The
grievor was not told the subject of the investigation nor the reason he was being questioned
specifically. At the conclusion of the meeting the grievor was concerned about the vagueness of
the questions but did not believe they pertained to him. He had done nothing wrong and believed
he was being interviewed only as part of the process.
The grievor left the meeting alarmed that Mr. Fournier had not given him any information and
disheartened by his refusal to be forthright. On January 20, 2003 he had a conversation with Dr.
Jones in which he asked him for information about the investigation. Dr. Jones would not
comment on the investigation but told the grievor that he knew he was a nurse in good standing
and he should not worry because they were only collecting data. He felt somewhat relieved but
told Dr. Jones that he was disheartened about the way he had been treated. He thought they had
valued his service in the past and his willingness to work extra shifts when asked. He repeated
his offer to be available to answer any questions.
After the meeting he tried to piece together the significance of the meeting and the next day he
wrote a letter to Mr. Fournier and Dr. Jones, dated January 21, in which he stated as follows:
I spoke with you on January 20, 2003 to express how disturbing and stressful it is with
rumors and information circulating about the building from reasonably reliable sources. I
expressed my concern about the confidentiality of these matters. You indicated that my
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name had been mentioned but that the process was clearly data collection at this point. I
mentioned that I would address openly any concerns if given the opportunity. I have
always been approachable with my colleagues and supervisors. I expressed concern at
your suggestion that some issues are longstanding, however if any pertain to me I have
never been informed or given the opportunity to address same. I expressed my concern
that it seems unjust to be unaware and unable to address matters when they have been
held from your awareness. You claimed you would keep me up-dated as you are able to.
I have demonstrated my dedication to this organization on countless occasions over my
22 years of employment (ie: leadership roles, team leading, acting nurse manager, acting
shift manager). I find these matters disheartening, a discredit, and have real concerns
about how this hidden agenda is being managed.
My intention for our discussion today initially was to request to be placed on Team A,
that schedule would allow me to meet some family commitments in the future. As in the
past, I would be willing to work split shifts, day shifts with evenings next day (vice,
versa) in order to help you balance the counts. Please give me you response in writing.
Four days after that meeting, on January 24th he was escorted from the premises. At about 1500
hours, Mr. Fournier asked him to come to Dr. Jones' office. He was shocked and asked if he
could bring a Union Steward. Mr. Fournier did not respond and the grievor told him he would
not go to any meeting without a Union representative. Mr. Fournier said that was his problem,
but then agreed and the grievor followed him to Dr. Jones office and joined John Lenio and Ray
Walton, two nurses from the Forensic Unit who had also been accused of patient abuse. They
were led to the Board Room and, one at a time, were escorted to Dr. Jones office, beginning with
Walton, then Lenio and finally the grievor. While he was waiting, he asked Ms. McLaughlin if
he could have legal representation. She said no, that this time they were going to do it this way.
He saw Mr. Walton leave and was alarmed by his facial expreSSIOn. He knew something
significant had happened.
Present in Dr. Jones' office were Martha McDonald and Al Donaldson, Union Stewards, Joan
Duncan and Dr. Jones. Dr. Jones told the grievor that he was being suspended with pay pending
formal investigation of the allegations. He told him that the police had been notified and would
be contacting him for questioning. He told him that the College of Nurses had also been notified
but not what had been relayed to it. He was told that the families of the clients who had been
involved had been notified but he was not told who they were or what they had been told. He
was asked to surrender his name tag and told that he was not permitted to enter the facility or the
grounds while under suspension. He was told not to have any contact with any staff members of
the forensic unit. The grievor asked whether he could ask some questions. At first Dr. Jones
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refused but then he consented and the grievor asked him what the actual allegations were against
him. He was told they were not prepared to give them to him at that time. He then asked
whether, after he had been cleared, this suspension would be removed from his file. He was told
they would wait and see. Finally, he asked what they would do to restore his reputation when this
was all over. He was told they would do the best they could. He was given the following letter:
Re Allegations of patient abuse
Serious allegations have been made regarding the nature of your interactions with some
patients on Ward 07 at Oak Ridge. These allegations of patient abuse have been subject
to a preliminary investigation.
I have directed that a comprehensive investigation into these matters begin immediately.
Effective immediately, you are suspended with full pay, from your duties at the Mental
Health Centre. You are directed to surrender all Mental Health Centre keys and
identification tags in your possession. Excepting with the express consent of a Senior
Manager, you are not permitted on the grounds of the Mental Health Centre until further
notice.
This suspension and all directions associated with it, will continue until the completion of
the comprehensive investigation.
I am seriously concerned at the potential for intimidation of individuals involved in this
investigation. Accordingly, I am directing that you not have any contact, direct or
indirect, with any member of the Forensic Assessment Program staff, or with any patient
of this facility. Any failure to comply with this directive will be dealt with in the most
senous manner.
Thank you for your anticipated cooperation with this investigation. You will be
contacted in due course regarding further developments.
During this meeting he was not given any specifics about the allegations, the clients involved or
the people who had filed the complaint. Mr. Donaldson met with all three employees but could
give them no further information since he had not been told any more than they had been told.
After that meeting they were escorted by Dr. Jones to an area outside the Forensic Unit and told
to gather their belongings. The grievor asked him to unlock the closed area of the Unit so he
could collect his things and was told he could not go in and that Dr. Jones would get them for
him. The three employees were then escorted to the main entrance, past two gates and past 2 or
3 managers. The grievor was told they were there in case they refused to leave. The grievor felt
insulted. He walked out the front door to his car in shock. He was embarrassed and ashamed. It
was clear to anyone who had seen him escorted from the building that something significant had
happened. He knew that within an hour, everyone in the facility would know. He stood by his
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car in disbelief. He was frightened and almost physically ill. He felt an overwhelming feeling of
anxiety as he drove home. The following days were very uncomfortable. He had to try to
explain to his wife what had happened. He tried to carry on as usual in front of his children. He
was stressed and had trouble eating and sleeping. He felt overwhelmed and powerless. He spent
the weekend trying to remember whether he had done anything to warrant the treatment he had
received. He had been at this facility for 22 years and had never seen anyone escorted from the
building. He felt he had nowhere to turn and went to see his family physician, Dr. Zwicker, who
prescribed medication for his nerves. He discovered after he had left the facility that Dr. Jones
and Ms. Duncan had told the staff on the forensic unit that the three employees had been escorted
from the building pending investigation.
The grievor had no further contact with the Employer except for a letter dated January 28, which
he received some time in February and which read as follows:
Re: Preliminary investigation into allegations of patient abuse on Ward 07
On January 24th I received a report of the preliminary investigation into allegations of
patient abuse involving several patients on Ward 07. This investigation was conducted
by Mr. Mike Fournier, Ward Nurse Manager, and Mrs. Donna McLaughlin, Coordinator,
Forensic Assessment Program.
Based upon the findings of the preliminary investigation it is my opinion that a further
investigation should be undertaken.
In summary, the allegations are:
1. That you were one of a group of individuals that assaulted MW, and that you
falsified the record of these events.
2. That you were one of a group of individuals that assaulted patient AS
3. That you were one of a group of individuals that assaulted patient MS.
These allegations arise as the result of the direct observation of these events by staff of
the Mental Health Centre.
These allegations are extremely serious patient abuse, and they have been made by
credible witnesses. A comprehensive investigation into these allegations, and any other
related issues that may arise during the investigation, is warranted and will begin shortly.
You will be advised when your participation in these events is required.
I appreciate that being involved in an investigation of this nature may be very disturbing.
We will attempt to complete this investigation as quickly as possible given the issues at
hand.
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This was the first time the grievor was given any details about the specific allegations against
him and the first time he was told the results of the preliminary investigation. He read the
allegations and tried to remember, without success, any involvement in the incidents outlined in
the letter. He was alarmed at the use of the word "assault", which had never been used before in
any discussions with the Employer. Patient abuse could consist of yelling or not responding
promptly to a patient's request. It can and usually is verbal. Assault, on the other hand,
suggested physical harm, which is never warranted in any situation. He was concerned that
criminal charges might follow and decided to consult a criminal lawyer. He and his spouse tried
to explain to his 5 children what had happened but he was unable to understand what was
happening himself. He spoke of the events in general terms and told them everything would be
fine. There was nothing more he could do. Then he contacted the Union to ask it to obtain
disclosure of the allegations and witness statements.
On February 19th the grievor received a copy of the preliminary investigation. In fact, he
received 2 copies, the first erroneously containing the names of the witnesses, the second, edited
to remove those names. Accompanying the report was a letter from Dr. Jones extending his
suspension with pay for another 4 weeks.
The report itself contained details about the alleged abuse including names and dates. I am only
including references to these allegations as they relate to the grievor and have decided to refer to
the patients by initials to protect their right to confidentiality.
The first one concerned an alleged assault on MW and stated, in part, as follows:
.. . John, Rob and Keith jumped him and pinned him up against the wall, choking him.
Dave W was there but did not get involved in the incident. The record is falsified and
does not reflect what actually happened. M was kept in seclusion and they made it a
point to keep him in seclusion.
M was kicked and punched and put into seclusion because they did not like how long he
was taking in the dining room. Rob, Keith and John were all in on it and M didn't do
anything.
Another allegation involved AS and stated as follows:
Rob, Keith and John teased AS to the point that he threw a pillow out of frustration.
They pinned him to a chair to the point of breaking the chair, throttled him, kicked him in
the testicles and secluded him.
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AS was beaten and kicked. How do you think he got that burn behind his ear, and his
ribs. Keith and Rob beat him. ML was witnessed (sic) and he will tell you. Poor AS
was taunted, teased and harassed. They pick on the lower functioning patients, the ones
that can't defend themselves. They would feed AS to the point of vomiting.
AS was jumped and roughed up. He was sent to his room with a punch to his back. I do
not remember who gave the punch.
There were several additional complaints that did not directly name the gnevor and
I have not included those details in this award. There were notations from staff members about
the poor morale on the Unit, criticisms from staff members about other staff members, failure to
recognize some staff members, personality clashes and negative attitudes. The report, however,
concluded with the following comments:
Twenty-four (24) nursing staff and six (6) clinical staff were interviewed. Six (6) of the
nursing staff approached Mike Fournier outlined in the anecdotal notes. The above is a
summary of content, quotations are used where possible.
We feel the events described above are highly suspected to be true and recommend
further investigation.
The grievor was somewhat relieved when he read this report. He was not at work on some of the
days these incidents were alleged to have occurred. For example, on October 24, 2002, he had
worked earlier in the day but had left before the alleged incident. When asked how the Employer
would know that, he replied that there are several documents that would have shown his absence
at that time. There is a sign-in sheet at the front office that all employees entering the building
are required to complete. There is a Daily Activity Sheet that showed he was off duty at 1500
hours. The Shift Supervisor has the master schedule and the Nurse Manager has a copy of the
workload measurement that contains the number and names of the staff at work. Mr. Fournier
would have had access to all of these documents. It was also comforting to the grievor to know
that he was on vacation when another incident was alleged to have occurred.
That comfort was soon shattered when an article in the local newspaper reported the events at the
Mental Health Centre. Although the grievor was not mentioned by name he was approached by
many people, including staff from the Centre, about the newspaper article. He had been told not
to discuss the matter and was worried about what he could or should say. He began screening his
phone calls because so many people were asking for details. He and his family were well known
in the community and he was concerned that the damage to his reputation would be permanent.
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Attending the meeting on February 25th, were the grievor's criminal counsel, Mr. Peter Hart, Al
Donaldson and Martha McDonald and Mr. Burke Thompson and Mr. Dave Hunter. The latter
two had been called in to conduct the independent inquiry into the allegations. Mr. Thompson
had been an employee of the Centre as a part-time Shift Supervisor and part of the management
team. Mr. Hunter was an RN from another facility. Initially they met as a group at the Huronia
District Hospital and were given a general review of the reasons for the meeting. They were
given an hour to peruse the files and incident reports to help them prepare. The grievor noted that
there was no incident report for the October 24th incident and, when he asked for it, was given
no explanation for its absence. He explained that incident reports were required whenever
anything unusual or untoward happened in the facility. It was extremely unusual to find one
missing regarding an incident so serious. The patients' files also contained no information about
the allegations.
The grievor then met with Mr. Hunter and Mr. Thompson. He asked them if they were aware
that he had not been in the building when some of the events were said to have occurred. He
showed them his work schedule noting his time off. He was told they knew he had not been
there during some of the incidents. When the grievor asked why the allegations were still on his
record, he was told it was part of the process. The meeting was short and no further interviews
or meetings were held to discuss the allegations or his suspension.
The gnevor was upset because he had reviewed the Operational Policy regarding the
Investigation of Allegations of Patient Abuse and was certain that, had they followed their own
policy, specifically the portion of the policy related to the preliminary investigation, he would
have been exonerated immediately and would not have been subjected to the suspension and the
public humiliation that followed.
That policy is dated August 2000 and, because the grievor relies heavily on the Employer's
failure to adhere to its own process as grounds for his claim for damages, it is necessary to
reproduce that porti on of its poli cy in detail:
REASONS FOR POLICY
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To ensure that alleged incidents of patient(s)/consumer(s) abuse are investigated in a
consistent and timely fashion, and that the rights of patient(s)/consumer(s) and staff are
protected during the investigative process.
APPLICIABILITY
Applicable to all staff and patient(s)/consumer(s).
POLICY STATEMENT
Mental Health Centre Penetanguishene does not tolerate patient/consumer abuse.
Allegations of patient/consumer abuse in any form are taken seriously and will be
investigated. The following procedure will be initiated, acknowledging that staff are
entitled to due process.(sic)
PROCEDURE
The procedure is divided into three major sections:
1. Reporting
2. Preliminary investigation.
3. Formal investigation
I REPORTING
Any person observing patient/consumer abuse will report it to the immediate supervisor.
The responsible Department Head/Program Director will notify the
Administrator/Associate Administrator ( or delegate) immediately that an allegation has
been made. Accused staff will be notified as soon as possible of the full allegation. It is
imperative that notification be given verbally and in writing even when staff are off duty
and that this occur before the preliminary investigation is begun/initiated.(sic)
Where an allegation of abuse is received after six months since the alleged incident
occurred, such an allegation must also be reported to the Administrator/Assistant
Admini strator (or del egate) directly.
II PRELIMINARY INVESTIGATION
The Administrator/Associate Administrator (or delegate) is notified and ensures that a
preliminary investigation is initiated and completed as soon as possible. The purpose of
the preliminary investigation is to gather facts and obtain objective information, not to
make a decision. The first appropriate level of supervision above the accused staff shall
carry out the preliminary investigation.
A INVESTIGATION
The investigator will inform any involved/relevant staff that he/she may have union and
or legal representation throughout the investigation procedure. These staff may waive in
writing the right to representation.
The clinical team and/or physician need to be consulted about the patient/consumer's
mental condition throughout the entire process.
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The investigator will follow these steps in conducting the preliminary investigation:
1. Ensure that in all cases of physical and/or sexual abuse, a medical exam is
conducted immediately by a physician and that photographs are taken as
necessary. The physician will make the report of the physical exam
available to the investigator.
2. Inform the patient/consumer that he/she may have the Patient Advocate
and/or the Police present.
3. Interview the patient/consumer in the presence of another staff.
4. Interview staff involved and acquire written statements within 24 hours. It
is expected that staff will cooperate.
5. Interview other patients/consumers and staff witnesses.
6. Consult all available records including patient/consumer's file (obtaining
Form 14 to review), timetables, charts, incident reports concerning the
date, time and place of the alleged incident.
7. The investigator will use the least intrusive means to ensure identification
of accused staff. Under no circumstances are staff to be subj ected to line-
ups. (sic)
B PRELIMINARY REPORT
The investigator will provide the Department Head/Program Director involved with a
written preliminary report. The Department Head/Program Director will hand deliver this
report to the Hospital Administrator/Associate Administrator ( or delegate). The Hospital
Administrator/Associate Administrator ( or delegate) will provide summary reports to the
staff involved, the union/legal representative, the patient/consumer and his/her
representative.
The preliminary report will include:
1. A description of the allegation (who, what, when, where).
2. Information used to positively identify staff involved.
3. Written statements from patient/consumer and staff witnesses if provided.
4. Statements indicating if any witnesses chose not to provide verbal or written
information.
5. Photographs, if appropriate, record of physical exam and any other records that
are relevant.
6. A summary statement of the investigation that does not include a decision.
The Administrator's/ Associate Administrator's (or delegate's) report will include Items
1,2,4 and 6 as described above.
C DECISION RE: PRELIMINARY INVESTIGATION
Based on the findings of the preliminary report, the Administrator/Associate
Administrator (or designate) will decide:
1. Whether sufficient evidence exists to substantiate an allegation of abuse; and or,
2. Whether further investigation is necessary and appropriate:
3. Whether to involve the Police in further investigation, thereby providing the
patient/consumer with the protection afforded under such Acts as the Criminal
Code.
Where allegations of abuse are investigated, the relatives, personal representatives or
guardians should be notified of the allegations, where, in the judgment of the
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Administrator/Associate Administrator (or delegate), it seems appropriate to do so and in
accordance with the patient/consumer's wishes.
The Administrator/Associate Administrator (or delegate) will inform the
patient/consumer(s) and staff involved of the results of the preliminary investigation in
writing (provided a summary report). At this time, the Administrator/Associate
Administrator (or delegate) will tell both patient/consumer and staff if there will be a
formal investigation.
D FILING OF THE PRELIMINARY REPORT
The Administrator/Associate Administrator (or delegate) will not place any information
on the staff's corporate file until all investigations are completed and decisions made.
If the investigation stops at the preliminary stage because insufficient evidence precludes
calling for a formal investigation, the preliminary report and all of the information
included will become part of the Administrator's confidential file only.
E ADMINISTATIVE ACTION RE: PRELIMINARY INVESTIGATION
FINDINGS
1. The Program Director and Department Head involved (or delegates) shall take
immediate temporary action to minimize the contact between patient/consumer
and accused staff. The least intrusive method appropriate under the circumstances
will be used.
2. The Administrator/Associate Administrator (or delegate) may suspend the
employee(s) without pay. (Refer to Public Services Act, Section 22 (1).
3. Any employee under investigation must not discuss the incident with the
patient/consumer or other staff.
4. The Administrator/Associate Administrator (or delegate) may report to the Police
at any time. This should be done based on the gravity of the situation and the
available evidence.
The remainder of the policy pertains to the formal investigation and, for purposes of this hearing,
is not relevant to the grievor's claim for damages.
It was the grievor's position that the Employer failed to follow its own policy with respect to the
preliminary investigation. He was not notified of the full allegations against him before the
preliminary investigation, either verbally or in writing. He believed a physician interviewed
everyone involved but he was never told about these interviews or medical exams, if any. He
was never asked to provide a written statement within 24 hours as required under the policy. He
was not told whether there had been any review of time schedules or work assignments that
would have established who was on duty at the time of the alleged incidents. He was not given
the incident reports that he had been told had been completed concerning these alleged acts.
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During the meeting on February 25th, Mr. Walton told him that he had filed an incident report but
that report was never produced, then or during this arbitration proceeding. He was not given any
alternative with respect to less intrusive action the Employer could have taken at the time. He
believes he could have been assigned to duties not involving patients, such as the front office.
The Employer had, as part of the policy, an Investigation Complaint Check List which, in
addition to listing the date, nature, patient and staff involved in the complaint, sets out the
following guidelines for the person conducting the investigation:
Patient/ Staff's safety is Assured
Advised appropriate persons
Consulted with appropriate persons
Started necessary paperwork
Determined nature and length of time needed to complete any investigation
Follow-up with persons who brought complaint forward to advice of status of actions
begin ( sic) taken.
Advise all relevant staff/persons of who is conducting any investigation.
Review issue and consult with others to determine if others should be advised.
Follow-up to ensure that investigation is being completed within established time frames.
If not, consult with managers and re-negotiate deadlines. May require additional notice to
persons who brought complaint forward.
Review all material, including any investigation to determine if others need to be
involved or if other material/information is needed.
Consult with manager etc. to determine what action should be taken.
Advise complainant and where appropriate and others of outcome.
Ensure outcome is communicated and implemented.
The grievor was familiar with this checklist from past experience as a Nurse Manager. He
believes that, had the Employer followed this checklist, they would have realized at the outset of
the preliminary investigation that he was not involved in the alleged incidents.
The grievor also spoke to an Ontario Provincial Police constable, Dave Falls, who told him that
there were no grounds upon which criminal charges could be laid and that there had been
credibility issues concerning the witnesses. He was given a summary of the OPP investigation
verifying what he had been told. In that report, it was noted that the grievor had not been on duty
when the incident of October 24th had taken place and that, with respect to the other alleged
incidents, there were problems in the accounts of the witnesses that had to be reconciled before
they could be deemed credible.
The process of a preliminary investigation requires the person doing the investigation to review
all incident reports on file concerning the allegations. In all of the cases of alleged patient abuse,
16
an incident report would have been mandatory but the grievor was not given any copies of any
incident reports. He saw an incident report about the AS incident but did not know whether a
doctor had been called. He was not told whether an investigation had been conducted following
the incident report.
The next communication between he and the Employer came in the form of a letter dated March
13, 2003 from Dr. Jones informing the grievor that he had, the previous day, received the report
of the formal investigation and, after consultation with the Chief Nursing Officer had concluded
as follows:
. . .It IS my OpInIOn that there is not sufficient evidence, in relation to the specific
allegations made against you as contained in my letter to you of January 28, to warrant a
disciplinary hearing. However, I do find sufficient evidence to conclude that you have
failed to comply with hospital policy, and to maintain acceptable standards of practice in
specific areas and, in relation to these findings you should expect remedial action to
follow.
Accordingly by way of this letter, I am directing that you return to full-time duties at the
Oak Ridge facility beginning Tuesday, March 18, 2003. Pending further discussion with
you regarding work assignment, you have been scheduled to the "B" team on Ward 6. I
have directed that you be off count for two days in order to ensure that you are able to
orient yourself to this assignment.
I am pleased that this phase of the investigative process is over, and that the outcome is
that you are once again in the workplace. I realize, however, that you are likely to have
mixed feelings, pleased on the one hand that you have been substantially vindicated, but
angry at what you have had to endure these past several weeks. I hope, in due course,
that you are able to understand why keeping you away from the workplace was the best
course of action throughout.
The grievor did return to the facility on March 18th and met with Dr. Jones. He asked for
examples of his failure to comply with hospital policy and to maintain acceptable standards of
practice. Dr. Jones did not answer. He asked why he was being assigned to Ward 06 instead of
going back to Ward 07. Again, no explanation was given. The grievor was also uncomfortable
with the phrases "insufficient evidence" and "substantially vindicated" and did not feel as if he
had been vindicated at all. The grievor felt the transfer had been disciplinary. As a result of the
grievor's concerns, it was Dr. Jones decision to place the grievor on paid administrative leave
until these matters could be resolved.
17
The grievor wrote a letter to Dr. Jones that day in which he stressed that the outcome of the
investigation had provided him with only a modicum of relief. His letter stated, in part, as
follows:
As a regulated health professional, I can appreciate that you had an obligation to conduct
an investigation into this matter. What cannot be understood, however, is the adverse and
traumatic affect this ordeal has had on my family, colleagues, friends and, most
obviously, myself. The irrevocable damage to my professional reputation and credibility
that has resulted from these vexatious allegations has left me at a loss in terms of how
best to deal with some of the unresolved issues bring closure to the matter and effectively
reintegrate myself into the workplace.
He then asked for the correspondence and notes regarding the investigations conducted by
Thompson and Hunter, a copy of the Administrator/Associate Administrator's explanation of the
results of the Formal investigation, full disclosure of the evidence that he failed to comply with
hospital policy and maintain acceptable standards of practice, an explanation of why he received
no support or contact by or with the Employer during his suspension, an explanation of why the
Union received no response to its repeated requests for information, an explanation for the
arbitrary assignment to Ward 06 and details of the obligation the Employer had to deal with the
individuals who had made false accusations against him. In addition he wanted assurances that
all references and correspondence related to the investigation be removed from his corporate file,
that all information forwarded to the College of Nurses be rescinded with a written retraction and
that the entire facility be notified of his absolution of the false allegations. Finally, he reminded
Dr. Jones of his question about what they intended to do to restore the damage to his reputation.
Dr. Jones responded to that letter on January 24th by acknowledging that they had agreed the
grievor would not return to work until the specifics of the reference to hospital policy and
standards of practice had been provided to him, but went on to advise the grievor that, while
some practices with respect to seclusion/restraint and documentation required review and
educational intervention, there was no indication in the grievor's practice that would identify the
grievor as requiring specific remediation. He then instructed the grievor to return to Ward 06 on
March 27,2003. With reference to the grievor's specific requests, Dr. Jones stated a copy of the
formal investigation was attached to the letter, that the explanation of the results of the formal
investigation had been provided in the letter of March 14, that no reference to the investigation
would be placed on his corporate file and that no information had been placed before the College
of Nurses. With respect to the lack of support, Dr. Jones stated that he had only received one
18
other letter besides the one he was responding to and was unaware of any other memos or letters
that had been ignored. He acknowledged that he had made no effort to maintain an ongoing
dialogue during the grievor's suspension however, at the initial meeting in which the grievor had
been suspended; he had expressed his concern and support and recommended the EAP.
Whenever he did communicate with the grievor he tried to be supportive and concerned while
maintaining a business-like demeanour. His assessment at the time was that the grievor would
not be comforted by contact with the Employer while he was under investigation.
With respect to the grievor's query about his assignment to Ward 06, Dr. Jones stated that the
decision to do so had been made after consultation with line and senior managers and in
consideration of affording the grievor a smooth return to work and in support of efforts to return
Ward 07 to normal operation with a minimum potential for conflict and distraction. Finally, with
respect to the grievor's concerns about his reputation, Dr. Jones stated that, although he had met
with the staff on Ward 07 to advise them that some staff had been excused from work pending an
investigation into patient abuse, he did not mention any names except to the management people
necessary to conduct the investigation. He acknowledged, however, that the names of those who
had been suspended had become public knowledge very quickly. Similarly, his return to work
had become public knowledge and a meeting to announce his return would serve no purpose.
His letter concluded with the following:
Keith, I regret that this investigation was necessary and that it has, indirectly, caused you
and your family such distress. Certainly, my intention in conducting this investigation in
the manner I have was to ensure the rights and safety of everyone involved; those against
whom allegations were made, those who made them, the patients who were allegedly
victimized, and all the patients at Oak Ridge who require continuing care while this all
goes on. I hope that, in time, you will agree that this was accomplished to the extent
possible, and that you put this behind you.
The grievor responded to that letter on March 2ih acknowledging Dr. Jones directive to return to
work but advised him that, on the advice of his family physician, he would be applying for the
WSIB for additional time off to deal with the adverse effects the ordeal had taken on his health.
He also acknowledged that Dr. Jones letter of March 24th had gone" a long way" toward
responding to his questions, and while he was heartened by Dr. Jones gesture to meet with the
grievor, he disagreed with his comments about announcing his return to work. He maintained
that his return was shrouded in misinformation about his alleged culpability. He was convinced
that the allegations could have been vindicated at the preliminary investigation stage had it been
19
carried out according to policy. If it had, he would not have had to endure the public
embarrassment of being escorted out of the building. He stated he had other concerns about the
manner in which the preliminary investigation had been conducted and suggested he meet with
Dr. Jones to discuss those concerns.
It should be explained at this time the reason for these references to his damaged reputation and
health issues. The grievor has lived in Penetanguishene, a community of 8,000 people, for all of
his life. He was 43 at the time of the events giving rise to this grievance. He was very active in
the community; he curled, played hockey and coached two basketball teams. He had been
involved in the local police commission and was considering running for local council. His
stepfather had been the Mayor and the grievor was often seen at his side during his four terms.
His father was also well known in the area. The Town Clerk had approached the grievor about
running for council but the grievor felt his candidacy would be sidetracked by the allegations
against him. About 900 of the people in Penetanguishene work at the facility and his suspension
was public knowledge. For the same reason he did not coach basketball that year. Many of the
parents of the children on the team worked at Oak Ridge and the grievor was concerned about
the questions he would have to face when he met with them. People were very direct in posing
their questions and the grievor had been instructed by Dr. Jones not to discuss the matter. The
grievor felt he could give no details and chose to avoid being put in the position of having to
respond. The grievor and his family were also regular attendees at his church and he was known
as the father of 5 children. It was his opinion that, as a result of the Employer's actions in
escorting him from the building and suspending him pending investigation, his reputation in the
community had suffered irreparable damage, damage that could and should have been avoided if
the Employer had followed its own policy properly.
It was also the grievor's position that as a direct result of the Employer's actions, he suffered
emotional damage that resulted in serious health issues for him and for his family. Those health
issues began in 2002 when his father, after a lengthy and difficult fight with depression,
committed suicide. The details of his death are not necessary except to note that after his
passing, the grievor sought medical intervention to help him deal with the aftermath. At first he
saw his family physician, Dr. Zwicker, who prescribed an antidepressant and a sleeping pill. The
grievor, however, was not happy taking the medications and was referred to Dr. Hector, a
psychiatrist, for psychotherapy, who recommended that he be off work from March to September
20
for treatment. After one month of counselling, the grievor decided he would prefer to be back at
work rather than sitting home in isolation. While he had been off on sick leave, the members of
the bargaining unit had entered into a strike. When the grievor returned to work the strike was
ongoing but he was designated an essential worker and allowed to return immediately.
Dr. Hector testified for the grievor. He began his practice as a psychiatrist in 1966 and worked
as the senior staff psychiatrist and then Psychiatrist-in-Chief at the Wellesley Hospital from then
until 2000. From 1993 to 2000 he was also the Staff Psychiatrist and Clinical Director of the
Oak Ridge facility. From 2000 to 2004 he was the Psychiatrist-in-Chief at the Royal Victoria
Hospital in Barrie. He first met the grievor as a member of the nursing staff at Oak Ridge. He
described him as an exceptional nurse with excellent relationships with the patients and his
peers. He had also treated the grievor's father during his illness, including the period just before
his suicide. He stated that, because of his familiarity with mental disorders, the grievor was the
primary family contact and he provided support and direction to his father and his family during
the lengthy illness. His suicide was a shock to the grievor, especially since he was the one who
discovered his father and who tried to shelter his family from the details. He went to work very
quickly after his father's death but continued to suffer emotional distress trying to determine
what had driven his father to this final act.
Dr. Hector first saw the grievor in relation to these events on November 6, 2003. He described
the events of the 10 months previous and, in particular his humiliation and devastation at being
escorted out of the building. He told Dr. Hector that he had been vindicated eventually but on
the advice of his family physician he had not returned to work in March as requested. Dr.
Zwicker had referred him to Dr. Desjardins, a physician who was employed by the Mental
Health Centre. She saw the grievor from March until late fall when she referred him to Dr.
Hector. At the time the grievor had been off work without pay and was in financial distress. Dr
Hector observed that he was in a major depression with a marked lowering of mood, pronounced
lassitude, lacking energy, impairment of sleep pattern, absence of motivation, loss of interest in
things he had enjoyed and a marked loss of weight. Even though Dr. Hector advised him to stay
off work the grievor told him that he had returned to work four days previously for financial
reasons. His return was subject to restrictions. He was to have no patient contact and was not to
be involved in any restraint procedures. He was situated in an office beside the office of the
Clinical director, which he found distressing because he was working around the people who had
21
put him through hell. He stated that he intended to sue the Employer for damages to his
reputation and his family over these allegations. He said the only reason they thought he was
involved was because he was always with the other two suspected abusers. The Employer
refused to acknowledge that they owed him anything but he was determined to restore his good
name.
Dr. Hector next saw the grievor on December 3, 2003. It was apparent to him that the grievor's
grief at the loss of his work and reputation was equivalent to and exacerbated by the unresolved
grief at the death of his father. Dr. Hector prescribed some antipsychotic and antidepressant
drugs, which the grievor reported a month later, had not been effective in resolving his state of
mind. He reported at that time that the Employer had suggested that he had come in on his day
off, which he stated was ludicrous. He raised concerns about his relationship with his spouse and
acknowledged the impact his exhaustion, irritability, depression and emotional withdrawal had
and was having on his children. He spoke about the College of Nurses and the fact that he could
do nothing to stop their investigation and the fact that the WSIB had denied his claim for
benefits. He repeated his concern about the effect this had had on his spouse.
He was next seen on March 22, 2004. He told Dr. Hector that he had been reassigned to the
Regional Division of the Mental Health Centre and that, while things had settled down, he
continued to feel frustrated and impotent. He was unable to support his increasingly critical
spouse. He complained that some of his friends' attitudes had changed during this process. He
lamented the loss of his friends and the fact that he had to give up his social activities, like
curling. He resented the fact that the Employer expected him to return to work as if the past
months had never occurred. At his next appointment on July 27, 2004, the grievor stated that
there had been no change. However, his lassitude and inertia had diminished due to an
opportunity to apply for the Employee Health Nurse position. He seemed unable to sustain that
improvement for long. On August 19th, Dr. Hector recommended the grievor return to work in a
nursing capacity.
His last visit with the grievor occurred in September at which time the grievor advised him that
he would be starting a new position of Occupational Nurse and Infection Control Nurse. He was
excited and thrilled with the opportunity to be educated for this new job. Dr. Hector concluded
22
his treatment with the provisional and working Axis I diagnosis of Maj or Depression, secondary
to loss of reputation as well as an Axis II diagnosis of Obsessive Personality.
In cross-examination he was asked about obsessive personality disorder. He explained that is a
descriptive term and that there was no acceptable measurement to identify type. Persons
diagnosed with this are usually perfectionists, wanting everything in its place. They tend to be
very correct socially and are durable people who complete their tasks. However, or as a result,
they cope poorly with stress and react with depression or anxiety. They often have difficulty
adapting to change, especially in stressful situations. All of those descriptions were apparent in
the grievor. It was a pre-existing condition that predated the events giving rise to this grievance.
It was not surprising that he reacted so emotionally and personally to being escorted out of the
building. Dr. Hector acknowledged that someone with obsessive personality disorder would tend
to be introspective and perplexed by the actions of the Employer. They could be inflexible and
refuse to accept anyone else's view of the facts.
The grievor testified that the effects of this ordeal continue. He still feels resentment towards the
Employer for the unnecessary pain and suffering he experienced at the time and today. He feels
he must do everything perfectly otherwise someone will criticize his work or his nursing
practices. He continues to feel victimized and persecuted. His relationship with his spouse has
not returned to its previous state and he continues to mourn the loss of some of his friends as a
result of the Employer's actions. He maintains the Employer's decision to return him to Ward 6
instead of Ward 7 was punitive and was a clear signal to the other staff that he had done
something wrong. He filed this grievance because he wants his name to be publicly cleared. He
wants it to be made public that he did nothing wrong. He wants punitive damages for the
suffering he endures and continues to endure. He wants reimbursement for his legal fees and
compensation for lost wages, specifically lost vacation credits. He wants his professional
credibility restored. Finally, he wants a gratifying result so that he can put this incident behind
him and go forward with his life. He also asked that Mr. Fournier be discharged for
incompetence and for acting in an unprofessional manner. He believes he should be held
accountable for the damage done by his improper investigation and should be disciplined
accordingl y.
23
In cross-examination the grievor acknowledged that he had been at work during two of the
alleged incidents. He denied the suggestion that that fact explained why he could not be
eliminated immediately from the investigation, stating that had they checked the time sheets, and
satisfied themselves that he had been off the premises when some of the incidents were alleged
to have taken place, they would have realized the unreliability of the accusers. He also
acknowledged that complaints of patient abuse are serious and must be investigated thoroughly
and that it was particularly so when the complaints come from senior nursing staff, but he
insisted that a proper preliminary investigation would have cleared his name. He asserted that
the preliminary investigation should have shown that the allegations were not credible and, in his
view, should have shown that further investigation was unnecessary. He also disagreed that
during an investigation into patient abuse, the alleged abusers should not be allowed in the
building. He insisted that he could have been assigned to non-patient duties until he was cleared.
When it was suggested to him that in the face of two eyewitness accounts from two experienced
nurses, Dr. Jones had no alternative but to take action to protect the patients, the grievor stated
that the two experienced nurses were new to Oak Ridge. He maintained that had the Employer
conducted the preliminary investigation according to protocol, done a thorough investigation,
interviewed staff and examined the patients it would have been clear to them that no credible
basis existed to proceed to a formal investigation.
Dr. Zwicker is the grievor's family physician and began seeing him in March of 2002 for a
respiratory condition. In January of 2003 the grievor presented at his office exhibiting signs of
extreme emotional distress. He was placed on an antidepressant but continued to do poorly. He
diagnosed the grievor as suffering from Adjustment Reaction with significant depressive and
anxiety symptomatology and possible major affective disorder. He noted that the grievor also
had an obsessive personality, which caused the grievor to believe the unsubstantiated allegations
were an attack on his character. Dr. Zwicker prescribed some medication to deal with those
feelings, with poor results. Dr. Zwicker referred him to Dr. Hector but continued to see him for
various physical problems. His notes of the office visits do not indicate any concerns about
depression. The grievor seemed to be acting in an appropriate manner with no apparent signs of
mental or emotional illness. He resumed seeing him for his psychological and emotional
problems after Dr. Hector's discharge and continues to see him on a monthly basis. The grievor
is still taking an anti-depressant and anti-psychotic to relieve anxiety. It was Dr. Zwicker's
24
opinion that the grievor's condition is a direct result of the conflict at the workplace and, since it
is ongoing, might need medical intervention well into the future.
There is no need for me to chronicle the various signs and symptoms displayed by the grievor
during this period of time. Dr. Zwicker gave a very detailed account of the grievor's treatment
and I accept without question his comments about his emotional and mental state. The grievor
was not responding to medication and required increasing dosages after his suspension. He was
obviously extremely affected by the events at the workplace and continues to be affected to this
day.
Dr. Zwicker did comment on the grievor's pre-existing disposition to Obsessive Compulsive
Disorder. He stated that, given his personality and history, he would have interpreted the actions
of the Employer as a personal attack on him and his standing as a nurse. He put everything he
had into his work and performed his duties above and beyond what was required. He checked
and rechecked everything he did and, as a result, when he was wrongly accused of acting
improperly, he suffered severe emotional distress. When he was asked if the grievor might have
exaggerated the circumstances, Dr. Zwicker replied he might have, but not intentionally. His
symptoms were real. He truly felt anger, sadness and frustration at what he saw as an injustice.
Mr. Michael Fournier, like the grievor, began working at the mental health centre as a registered
nursing assistant, graduated from the registered nursing course in 1991 and was hired to work as
a psychiatric registered nurse on Ward 07 from 1991 until 1999. He was then assigned the duties
of Nurse Manager on Ward 08 until 2001 when he was transferred back to Ward 07. He
remained there until September of 2003 when he was reassigned to Ward 08. As Ward Manager
he did not provide direct nursing care but rather supervised the work of 25 nursing staff,
including RNs, RPNs and attendants. He was responsible for health and safety and labour
relations matters on the ward as well for as monitoring ongoing education and in-service
programs. With respect to complaints from one patient about another, it was his role to act as a
patient advocate, interview other patients and staff, gather information and report his findings to
the program coordinator. After discussion with him a report, with recommendations, would be
generated and forwarded to Dr. Jones. Staff complaints generally involved personality clashes
and/or performance issues and were also his responsibility.
25
He first became aware of the allegations against the grievor and two other staff nurses on
December 30, 2002. Although the usual course of action would have been for an incident report
to be completed concerning the incidents described in the allegations, in this case no incident
reports were filed until after the investigation had commenced. Instead, on December 30th, three
different staff members approached Mr. Fournier about allegations of patient abuse. He was told
by Diane Pouw, Ernie Reed and Mike Lauren that patient abuse was common on Ward 07, that
the patients were constantly being teased, became overwrought and then were being placed in
seclusion. Mr. Lauren stated the patients were being roughed up and that ifMr. Fournier did not
do something about it he would be forced to seek a transfer since he had a responsibility as a
registered nurse to report patient abuse to the College of Nurses and he could not work there and
place his license in jeopardy. Mr. Reed told Mr. Fournier that patients were verbally and
physically abused and unnecessarily restrained with excessive force. They were "set up" for
seclusion and kept there for longer than was necessary. He stated that staff members had told
him they were frightened and intimidated and did not want to become involved. He then met
with Ms. Duncan, the Chief Nursing Officer and Ms. McLaughlin, the Program Coordinator to
consider these serious allegations. It was decided that it was necessary to initiate a preliminary
investigation into them but that, since many of the staff were not scheduled to work over the
Christmas holidays, it was decided to begin interviews after the New Year. These interviews
began on January 6, 2003 but in the interval Mr. Fournier had spoken to another staff member,
Diane Desjardins, on December 318\ after her night shift. She was distraught and tearful over
what she described as the patients' suffering. She told Mr. Fournier that she was afraid to chart
what she had seen. The rumours continued to circulate and people were upset and worried. Mr.
Fournier was concerned about property damage to the facility. He spoke to the grievor during
this time, who asked several questions about the allegations. Mr. Fournier told him that the
environment was "not good".
Mr. Fournier had another meeting with Ms. Duncan and Ms. McLaughlin to report this
discussion and, on January 2 and 3, 2003 arranged interviews for the staff on Ward 07. It was a
difficult process because staff members had been scheduled off for the holidays. They are
divided into two teams who work totally opposite shifts. In this case because the three people
involved in the allegations worked with all of the staff members at some time, it was necessary to
interview all 25 of them. On January 2nd all staff members received a letter advising them of the
interviews and, in total, 24 nursing staff and six clerical staff were interviewed. The Union was
26
present for all of these interviews. On January 3 they interviewed Ms. Desjardins and Ms. Pouw.
Both were very upset and stated that if the employer did not do something about these allegations
the College of Nurses would have to be contacted as well as the Ontario Provincial Police. They
expressed concerns about damage to the property and to their vehicles. Ms. Pouw stated that she
did not think she could work in the building any longer. People were placing pieces of cheese in
her mailbox, indicating their opinion of her as a "rat'.
Mr. Fournier was directed to the policy regarding the investigation into allegations of patient
abuse. He knowledge frankly that he had not followed the policy precisely and that he might
have been done a better job knowing what he now knows. However, the circumstances were
unique. Normally he would have been advised of the allegations and he would have had the
opportunity to sit with the accused staff member to discuss them. In this case there were
numerous allegations concerning numerous patients by numerous staff members. It was much
more complex. The rumors began circulating before he could begin his investigation and
continued to circulate throughout the investigation. He had concerns about who was involved
and to what extent they were involved. For that reason it was decided that all staff should be
interviewed and that it was necessary to involve the Union at every step of the process. Mr.
Fournier developed the three questions reproduced above in the hopes of encouraging open
discussion. He wanted those interviewed to comment on the environment on the ward, including
their ability to work together as a team to maintain proper nursing standards. In retrospect he
conceded they could have been more specific with respect to the subject of patient abuse. The
second and third questions were designed to encourage the interviewees to come forward with
examples of excessive force, goading or teasing. When the interviewees entered the room, they
were asked these questions and their answers were recorded. The grievor's responses have been
set out earlier in this award but, of the nine sets of notes provided to me, four voiced concerns
about the stress on the ward, personality clashes amongst the staff and poor morale. Three of
them set out in some detail examples of incidents of physical and psychological abuse of patients
and challenged the Employer to act on their complaints or face consequences in other forums. A
few employees related stories they had heard about excessive force but had no personal
observations to contribute.
27
After the interviews had been concluded, Mr. Fournier and Ms. McLaughlin produced a report
containing the concerns and comments of the staff that were relevant to the question of patient
abuse. Their report concluded as follows:
We feel the events described are highly suspected to be true and recommend further
investigation.
They reached that conclusion based on several factors. There were so many allegations based on
specific acts of specific staff concerning specific patients. There were too many consistencies in
their stories to be ignored. For example, at the time of the October 24th incident, there had been
a number of visible minorities in the unit and the racist comments alleged to have been made
were not inconsistent with the individual accused having made the comments. As well, they
considered the source of the comments. Ms. Pouw and Ms. Desjardins had been nurses for 25
and 27 years respectively. They had worked under contract for years and had enjoyed a good
relationship with staff and patients over that time. Mr. Ernie Reed had been employed since
1980 or 1981 as an RN and RNA. Mr. Redman had been a full-time Nurse Manager for 1-1/2
years and had been a ward nurse for 10 years before that. Mr. Ward had been employed at Oak
Ridge for 26 years and Mr. Lauren for approximately 10 years. Mr. Lauren had come to Mr.
Fournier with his concerns and, as upset and angry he was, did not want to speak up publicly.
He felt it was Mr. Fournier's responsibility to deal with these issues. These were all credible
witnesses who could not be ignored.
The grievor had claimed that, had the Employer checked the time schedules, it would have been
able to determine at the outset of the preliminary investigation that he was not even in the
building during the incidents cited. Mr. Fournier agreed that there is a daily or day sheet on the
front desk of the nursing station on the ward. That sheet notes the activity of the staff for the day
including vacation, sick leave and time off. That form, however, could not be relied on for
accuracy. Pre-approved time off would be noted on the form but any request for time off during
the shift might not be noted. With respect to the time schedules themselves, Mr. Fournier
prepares and checks these schedules. They go to the front office and changes are noted. The
office keeps one copy and another is sent back to the ward. Frequently there are errors on the
sheets. If Mr. Fournier wanted to determine whether an employee was at work on a certain shift,
he would first check the day sheet. Then he would also have to check other records to be sure
they were accurate. These sheets would not tell Mr. Fournier whether the grievor was in the
building before or after his scheduled shift. Mr. Fournier referred to the sign-in sheet. It was his
28
evidence that neither he, nor to his knowledge, have any other managers, used the sign in sheet.
They operate on the honor system. Nursing staff are expected to fill in the time their shift
begins. That however would not necessarily mean the time that they entered or left the building.
The sign in sheets are not monitored and cannot be relied on as an accurate reflection of any
employee's presence in the building. Mr. Fournier testified that there is a dress code and that
employees are issued nametags. However it is not uncommon for an employee to enter the
building without either since they are known personally by those in the offices. In order to
access the building an employee must announce themselves to a security officer who will then
open the door to allow them to enter. There are cameras in the entrance but to Mr. Fournier's
knowledge there is no method of taping or preserving this information.
Mr. Fournier testified that he did consider these vanous schedules and forms during his
preliminary investigation but did not consider them to be a reliable source. For example, even
though the time sheet indicated that they grievor had completed his shift at 1500 hours, Mr.
Fournier did not consider that as proof that he had left the building. He was personally aware of
times when the grievor had been in the building without signing in and after his shift was over.
As well, it was not uncommon for nursing staff to exchange shifts without a notation on the time
schedule. Mr. Fournier had to weigh the reliability of these times sheets and schedules against
the direct evidence of witnesses who placed the grievor on the ward during these incidents.
On January 24, Mr. Fournier was told to bring the grievor, Mr. Lenio and Mr. Walton to meeting
in the boardroom with Dr. Jones, Ms. McLaughlin and Ms. Duncan. The grievor told Mr.
Fournier that he would not attend any meeting without Union representation and Mr. Fournier
assured him that Ms. Martha Donaldson would be there. He had no further contact with the
grievor until the following Monday when he phoned all three to offer support and to advise them
of their right to access the services of the Employee Assistance Program.
In cross-examination Mr. Fournier was asked why he did not make any inquiries about any
incident reports about the alleged abuse. He agreed that they might have been helpful in his
investigation if they were accurate, which he did not feel he could have confirmed at the time.
He also acknowledged that he had not seen the preliminary investigation check list or the actual
policy itself until after the interviews with the staff. He conceded he would have done things
differently had he realized this was to be a preliminary investigation and not simply a fact
29
finding exercise. He agreed that, contrary to the policy, the grievor was not informed verbally or
in writing of the allegations against him. He also agreed that the preliminary investigation was
intended to gather the facts of the allegation and not make any decisions. However, he stated
that he had been asked for his recommendations. He did not make any decisions but set out the
facts and his recommendations. He allowed that he did not physically examine the patients or
contact a patient advocate about the alleged abuse. He did not collect all of the documentation
that was available, such as the time schedules, sign-in sheets or incident reports during his
investigation, which he conceded, might have influenced his conclusions. However, he did not
believe the results would have been any different. There was enough information to warrant a
formal investigation and the allegations from the eyewitnesses were too serious to allow them to
eliminate any nursing staff accused of the alleged abuses. When it was suggested to him that he
could have discovered inconsistencies in the witnesses' accounts of the events which, would
have raised questions of credibility, he agreed but stated that those inconsistencies would have
led him to conclude further investigation was required. He would not have made any decisions
about credibility at that stage of the process.
Dr. Jones was the final witness for the Employer. He began doing research into violent behavior
and first went to Penetanguishene as a Unit Director in 1987. In 1992 he became a member of
the faculty of Queens University in Kingston, Ontario, and served on the Board of Directors of
the Regional Centre of the Kingston Penitentiary. In 2000, he returned to the Mental Health
Center as Chief of the Forensic Division of the Mental Health Centre. He is responsible for all
operational aspects of five clinical forensic programs comprising of approximately 160 occupied
beds with the Oak Ridge and the regional forensic facilities served by approximately 450 staff
members. The responsibilities include human resources, recruiting, labour relations, as well as
the administration, organization and management of clinical resources. The Oak Ridge facility is
Ontario's only maximum-security psychiatric facility and accepts referrals from throughout the
province. The Regional Forensic Services Program provides medium/minimum security services
only within the catchment area. The Oak Ridge institution also specializes in the treatment of
acute behavior disturbance in men suffering from major mental disorder and/or organic
impairments, and in the long-term security of high-risk men who are poor candidates for
community reintegration. Dr. Jones is a member of the Ontario Review Board which reviews
cases of persons previously found Not Criminally Responsible on Account of Mental Disorder or
Unfit to Stand Trial and creates Dispositions that provide authority to detain or release and/or to
30
impose such supervisory restrictions as appropriate in the circumstances. Dr. Jones also holds
academic appointment as assistant professor of psychiatry at McMaster University in Hamilton
and the University of Toronto.
He was responsible for the operational line management that existed during the relevant time. He
was also the decision maker for the bureaucratic structure and reported directly to the
administrator of the hospital. He was unaware of any complaints of patient abuse until he
received the report of the preliminary investigation on the morning of January 24, 2004. He
reviewed the report and conferred with Ms. McLaughlin about the content of the document, the
origin of the complaints, the staff involved and the patients alleged to have been abused. He
spoke with Ms. Duncan and placed a call to the administrator of the hospital, Mr. George
Kytayko, to arrange an immediate meeting. They met over lunch to review the report and, after
seeking Mr. Kytayko's advice, Dr. Jones concluded that it would be necessary to conduct a full
investigation into the allegations and to suspend those accused of abuse until the investigation
could be completed. When he returned to his office he drafted letters for Mr. Lenio, Mr. Walton
and the grievor, contacted Mr. Fournier and Ms. McLaughlin about setting up a meeting and
contacted the Union Stewards from the two bargaining unit's involved. Dr. Jones testified that,
while they have conducted many investigations over the years, few have resulted in suspensions.
There were factors however in this case that influenced his decision. The allegations involved
multiple staff members, multiple patients and multiple locations. The allegations had been
reported and/or confirmed by multiple staff members. The alleged conduct was violent and
could have resulted in criminal charges of assault. The patients named in the allegations were
vulnerable and could not defend themselves. Dr. Jones stated their paramount duty was to
provide safety for the patients. They are in a secure facility, incapable of making decisions
regarding their own care and defenseless against the staff that are supposed to care for them.
Until he could verify and/or dismiss the allegations of the eyewitnesses, the only way he could
protect the patients was to remove the staff accused of abusing them. Dr. Jones was also
concerned that the investigation might be compromised because of intimidation by the accused
staff members towards those who had made the allegations. Indeed, one of the witnesses stated
that she was intimidated and afraid to chart what she had seen. The potential for staff conflict
would not have been in the best interest of the patients. Dr. Jones felt his choices were to leave
them on Ward 07, transfer them to another Ward or suspended them. He decided suspension
would be appropriate because of the severity and seriousness of the allegations. Allegations of
31
abuse often involve complaints of derogatory comments and neglect, such as failing to feed a
patient. The allegations made in this complaint spoke of actual physical abuse. As well, Dr.
Jones had to consider the source of the complaints. He concluded that they had been made my
experienced caregivers and had been corroborated. On their face they appeared credible. He
concluded that it would not be safe to allow the alleged abusers to continue to work in the facility
during the investigation. He acknowledged that all three alleged abusers were capable nurses
who were well regarded by management and their colleagues. However, he could not substitute
his own professional opinion for the first hand report of the eyewitnesses. His general
impression could not override what he considered to be direct evidence of abuse.
In coming to the conclusion that suspensions were appropriate, Dr. Jones realized that unless he
acted quickly, one or more of the accused abusers would be working over the weekend. He
decided that it would be in the best interests of the patients to suspend the three immediately. He
arranged to meet with these nurses in the boardroom with the appropriate union representation.
He met separately with each of them, gave them a letter of suspension, explained the reason for
the suspension and asked them to wait in another boardroom across the hall. He asked them to
return any hospital property, asked them not to return the building without consent and asked
them not to discuss the events with anyone until the investigation was completed. Dr. Jones
testified that the meeting was very traumatic for the grievor. He tried to conduct the meeting in a
professional, businesslike and courteous manner. He was aware of how difficult this would be
for Mr. Press. Dr. Jones and Ms. McLaughlin accompanied him to the staff room to clean out his
locker. He was then escorted directly to the front door of the facility by the most direct route,
away from patient care areas or the office. After the grievor had left, Dr. Jones assembled the
staff on Ward 07 to reassure them that patient care would continue to be their prime concern. It
was obvious to them that something had occurred but Dr. Jones made no reference to the
allegations or the suspensions that had just taken place.
On January 28, 2003, Dr. Jones sent a letter to the grievor setting out the three allegations of
abuse that had been the subject of the preliminary investigation. The letter stated that there was
sufficient evidence to substantiate the allegations that had been made by credible witnesses. The
letter concluded by acknowledging the disturbing nature of the allegations and promising a
prompt completion of the investigation.
32
The final report of that investigation was dated March 12, 2003 and found, in respect of the
grievor, that there had been 5 allegations in total. Of those 5, it was determined that he had not
been involved in 3. It was not determined that he had physically assaulted a patient on two
occasions in October of 2002. Dr. Jones reviewed that report and wrote to the grievor advising
him that there was insufficient evidence to warrant discipline but enough to conclude that he had
failed to comply with hospital policy and maintain acceptable standards of practice. His letter
acknowledged the traumatic nature of the events, recognized the mixed feelings remaining and
expressed hope that he would, in time, understand that the Employer had acted in the best
interests of the patients and staff involved.
With respect to the issue of confidentiality, Dr. Jones testified that the Centre deals with a large
number of allegations and complaints against the staff. The patients are being kept against their
will and the nursing staff is perceived as jailers. It is an adversarial environment and they have
had hundreds of complaints and hundreds of investigations, each one treated with confidentiality.
Only those directly involved are given any information about a complaint and only those directly
involved are made aware of the substance of the allegations. Dr. Jones did not disclose or
discuss the results of the investigation with anyone except the three nurses named in the
complaint.
In his letter of March 13, 2003, Dr. Jones had instructed the grievor to return to work on March
18. He met with the grievor that day to discuss the return to work and was told that the grievor
required a clearer understanding of Dr. Jones concerns before he could return to work. He was
not happy with the suggestion that he had been" substantially vindicated" and stated that he was
at risk for repeating his improper conduct unless the employer's concerns were clarified. Dr.
Jones explained that he discussed the matter with Ms. Duncan and that they had agreed that there
had been some "slippage" in the institution and that many of the policies had to be renewed and
reviewed. He told the grievor he was not the only one who was not complying with the rules and
that it was his opinion that reorientation and further education was necessary for all of the staff.
It was clear to him from the investigation that a complete review of policies regarding restraint
and seclusion were necessary. Dr. Jones assured the grievor that he was not being disciplined
but the grievor objected to a return to work until the comments about his failure to comply with
hospital policy had been resolved.
33
By letter dated March 24, 2003, Dr. Jones confirmed their agreement that the grievor would not
be required to return to work until the specific details of Dr. Jones concerns had been made
available to him. Dr. Jones later advised the grievor that he had decided to withdraw any
implication of noncompliance with policies and standards. He directed the grievor to return to
work March 2ih. Instead, on that day, the grievor provided a letter to Dr. Jones in which he
stated that, on the recommendation of his family physician, he would be applying for time off on
WSIB leave to deal with the adverse effects of these events on his health. Ultimately, after
discussions regarding accommodation and return to work protocols, the grievor did return to
work. He now works as an Infection Control Nurse in another division and no longer reports to
Dr. Jones.
In cross-examination, Dr. Jones agreed that the policy promulgated with respect to investigating
complaints was intended to protect the rights of patients and staff equally and consistently.
There is no hierarchy of rights and there is no provision in the policy for discretion. He also
agreed that the policy is mandatory in its procedures and that it acknowledges the importance of
due process for staff because of the serious nature of the allegations and the potential impact on a
nurse's reputation. While he agreed that the policy is designed to give an employee full
disclosure of the allegations against him/her so that he/she could respond in a reflective and
complete manner, he disagreed with the suggestion that had not happened in the instant case. He
understood that Mr. Fournier and Ms. McLaughlin had notified the grievor about the allegations
as soon as they became aware of them. They commenced their investigation as soon as they
could, given the holiday season and scheduling problems. He did not recall any conversation
with the grievor at that time about legal representation. He disagreed with the suggestion that,
had the grievor been fully informed about the allegations, he might have been able to
demonstrate that he was absent during some of the alleged incidents and therefore allay their
fears. Dr. Jones pointed out that the grievor had not been present during some of the events but
had been for others. It would not have been enough to eliminate him totally.
When asked about the possibility of the other staff on Ward 07 knowing what had transpired, Dr.
Jones conceded that they might have been able to conclude that 3 RNs had been called off the
floor and did not report back to work that day or on following days. However, he maintained
they did everything they could to preserve the grievor's privacy in the circumstances.
34
Dr. Jones was questioned about his letter to the grievor in which he alleged a failure to adhere to
policies and standards and his comment that the grievor had been substantially vindicated. With
respect to the former, he stated that he believed at the time that the grievor had failed to
document incidents on the clinical record but acknowledged that they withdrew the criticism
because they could find nothing to corroborate their accusations. With respect to the latter
comment, Dr. Jones agreed that there had been no evidence to prove that the grievor had been
involved in any patient abuse and stated that the choice of words used was simply a "turn of
phrase". He was aware at the time of the grievor's concerns about his reputation in and outside
of the Centre but testified that it was not the Centre's practice to publicize the results of an
investigation and that the grievor could advise his peers of his exoneration. He knew the grievor
was distressed over the events but was not aware he had sought medical intervention to deal with
his mental and emotional state. He understood that the last several months had had a very
significant impact on the grievor and that the grievor's perception was that they had altered his
life forever. Dr. Jones asserted that the reassignment to another ward was not intended to be
disciplinary. He had concerns about returning the grievor to Ward 07 because he held animosity
towards those who had given statements during the investigation. It would have been difficult
for him to reestablish a good working relationship and Dr. Jones' primary concern was for the
well being of the patients on the ward.
Mr. Rob Walton was called in reply to give evidence about the incident report he filed regarding
the October 24, 2002 incident. He stated that he had completed the form as required and placed
it under Mr. Fournier's office door. He could not verify that Mr. Fournier actually received the
report but he did say that Mr. Fournier's office door is locked and only Mr. Fournier and the
other shift supervisors and nurse managers have a key. It was his evidence that the grievor was
not included in the incident report and, had it been found, would have cleared him of any
allegations regarding that incident.
SUBMISSIONS OF THE PARTIES
Mr. Ed Holmes, counsel for the Union, took the position that these proceedings have proven that
the Employer breached its obligations under article 9.1 to protect the safety and health of its
employees. The evidence was clear and supports the assertion that the grievor has suffered an
illness as a direct result of the Employer's actions against him. The grievor's evidence, supported
35
by that of his physicians, was that he had recovered from his father's death and had experienced
the normal grieving process. Those issues had been resolved months before the suspension and
were not a factor in the symptoms he displayed after the suspension. The Employer's actions and
inaction caused severe distress to the grievor. He suffered humiliation and emotional pain that
continues today.
The Employer directly affected the grievor's reputation in the community and in the workplace.
The fact that he was assigned to a different ward following the suspension exacerbated the harm
done. The use of the words "substantially vindicated" does not signify to his colleagues that
there was no evidence upon which the employer had cause to accuse him of abuse. In fact, his
return to a different ward sent the opposite message to his colleagues.
Dr. Hector testified that the gnevor was a very proud individual who attempted to be a
perfectionist in his work. He felt these accusations were a personal attack on his character.
Being publicly exonerated was very important to him. The Employer must be held responsible
for the harm that was done to the grievor. The grievor is seeking a declaration that the employer
breached its obligations under the collective agreement, including article 9.1, and damages in the
amount of $5,000 for that breach.
The grievor is also seeking a declaration that his transfer to Ward 08 was disciplinary nature. No
explanation was given for the transfer and the only conclusion this Board can reach is that it was
punitive in nature. The Union and the grievor are seeking an order that the grievor the return to
Ward 07 if he chooses and when he is medically fit to do so.
The grievor is also seeking general damages in the amount of $25,000 in accordance with the
principles outlined in Re Toronto Transit Commission and Amalgamated Transit Union (2004),
132 L.AC. (4th) 225 (0. Shime). He asks for an order regarding special damages which would
include loss of sick time, top-up for the difference in regular pay and sick pay, reimbursement for
any vacation or holiday credits used during this period, compensation for loss of overtime and
$1000 for legal fees he was forced to pay in respect of the potential criminal charges. The claim
for damages also includes tort damages for distress, humiliation and loss of reputation. It was
said that the Employer must compensate the grievor for the intentional infliction of mental
distress that could have been avoided. These damages include a claim for defamation. Even
36
though the grievor was completely vindicated at the end of the investigation, the Employer
refused to acknowledge his innocence publicly, inside or outside the facility. Despite this lack of
evidence, the Employer was unwilling to accept the findings of the preliminary or final report
insofar as it exonerated the grievor. It refused to accept his innocence, characterizing the findings
as a substantial but not complete vindication and assigning some measure of blame by suggesting
misconduct on the grievor's part. That letter and its negative inferences remain on the grievor's
file and can only be characterized as defamatory. It is proof of the Employer's negligence in
respect of its duty to protect the health and safety of its employees. The grievor is seeking
$85,000 in damages.
The grievor is also asking this Board for punitive damages in the amount of $10,000. Punitive
damages are awarded in cases where the conduct is so egregious that it warrants punishment. It
is also a component of the rehabilitative aspect of an award and is designed to ensure that such
conduct is not repeated.
It was submitted by the Union that the evidence bears out its contention that there has been a
flagrant disregard of the Employer's policy. Mr. Fournier candidly admitted that it did not follow
the policy to the letter, he did not have or review the checklist before he started the preliminary
investigation and that he would now do things differently. We did not hear from Ms.
McLaughlin or Ms. Duncan about their role in the preliminary investigation and the evidence
from Dr. Jones was in relation to his actions after the preliminary investigation. The Employer's
evidence with respect to the grievor was consistent and complementary. It was acknowledged
that he was a long-standing employee with a reputation for being thorough, caring, competent
and professional in his interaction with his patients and colleagues. He reviewed the Employer's
policy very carefully and pointed to this Board in clear terms the portions of the policy he
believes the Employer had ignored. He is convinced that the Employer would have eliminated
him as a suspect had it reviewed, as required by the policy, all of the time sheets, assignment
sheets, sign-in sheets and incident reports. He maintains, and his evidence is uncontradicted, that
he offered to assist the Employer in its investigation and, had he been informed of the specifics
of the allegations in a timely fashion in accordance with the policy, he would have been able to
allay their concerns about his performance as a nurse and persuade it that he was innocent of the
allegations.
37
The evidence regarding the effect of the Employer's decision to suspend the grievor is also
uncontradicted. He testified about the tension it created within his family and the strain it caused
on his relationship with his spouse. He told the Board that because of the rumors in the
community and the questions that were constantly directed at him about the events at Oak Ridge,
he was forced to curtail most of his social activities. He stopped curling and playing hockey and
he no longer coaches basketball. This Board has evidence of the person he used to be and the
person he is now as a direct result of the Employer's misconduct.
In December of 2002 Mr. Fournier became aware of staff concerns about patient abuse. By
December 31 st he had clarified those issues and there is no doubt that, by the time he met with
Ms. McLaughlin and Ms. Duncan at the beginning of January of 2003, he knew the substance of
the specific allegations. Notwithstanding that knowledge, and the fact that the grievor had
approached him about the rumors, he did not speak to the grievor until January ih. Even at that
stage all Mr. Fournier did was ask the grievor three vague questions that did not provide the
grievor with any information about the allegations, including whether they pertained to him. The
grievor was never given an opportunity to defend himself or to prove his innocence, despite his
repeated offers to do so. Instead he was suspended with the resulting adverse effects on his
health, family and reputation. Instead he was escorted to the front door in full view of his
colleagues in a manner he felt was humiliating. He walked to his car in a state of shock and
disbelief, ashamed and physically ill. He did not become aware of the actual allegations against
him until he received a copy of the preliminary investigation on February 19th.
The Employer's flagrant disregard for the policy, it was asserted, is staggering. Notwithstanding
Dr. Jones' agreement that, because of the seriousness of the allegations and the potential impact
on a nurse's career, due process was vital, the Employer did not take steps to insure that it's staff
members accused of abuse were treated in a manner consistent with the policy. The policy is
clear: there is no hierarchy. Staff is to be afforded the same protection as the patients. In this
case the only one who suffered as a result of the preliminary investigation was the grievor. The
policy clearly states that staff will be notified as soon as possible of the allegations against him
before the preliminary investigation begins. Had the Employer done that in this case the grievor
could have defended and possibly cleared himself before the decision was made to suspend him.
The Opp felt there were credibility issues with two of the major witnesses and the grievor should
have been given an opportunity to address those issues. Had the grievor been informed of the
38
actual allegations against him in a manner consistent with the policy, he could have had time to
reflect on the incidents cited in the complaints. He would have been able to clear himself totally
from some of the allegations, which would have cast some doubt on the others.
Mr. Suneel Bahal, counsel for the Employer, agreed that article 9.1 is intended to protect workers
from danger and requires an employer to take reasonable steps to protect the health and well-
being of its employees. That obligation, it was said, cannot be interpreted as a fetter on the right
of an employer to suspend an employee pending investigation. Section 22 of the Public Service
Act 1990 RS.O. states as follows:
Suspension, removal, dismissal and release
Suspension hearing investigation
22. (1) A deputy minister may, pending an investigation, suspend from employment any
public servant in his or her ministry for such period as the regulations prescribe, and
during the suspension may withhold the salary of the public servant.
The only fetter on the employer's rights under the Act is its obligation to comply with the
requirements under the Act. In this case the employer properly delegated authority to Dr. Jones
and the grievor was clearly a public servant under the Act. The appropriate and only standard for
review of the actions taken under this Act is one of bad faith.
The Employer conceded that errors were made during the process of the investigation. However,
the situation was unusual. The allegations were not presented in the traditional manner. There
were multiple allegations of patient abuse and these allegations had been made by credible
witnesses. They included complaints of low morale, intimidation and professional vulnerability.
The Employer's decision to investigate these complaints cannot be faulted. There was no bad
faith, no malice and no intent to harm. The employer's actions were an honest effort to deal with
serious allegations of physical abuse against the most vulnerable patients. The Employer had a
fiduciary responsibility to protect these patients. It is important, it was said, that the Board
consider the context and content of these events in deciding whether the employer acted in a
reasonable manner.
The Employer agreed that the phrase "substantially vindicated" used in its letter to the grievor
advising them of the results of the formal investigation was unfortunate but there is no evidence
for this Board to conclude that it was done in bad faith or with malice.
39
Much has been said about what the Employer knew or ought to have known before and during
the primary investigation. The Employer knew that the grievor's father had passed away and it
knew that he had been off work for a period of time. Nevertheless, the grievor had returned to
work without restrictions. The Employer did not know that the grievor's family physician had
recommended antidepressants, which the grievor declined. The Employer did not know about
the grievor's obsessive personality disorder, his father's suicide or the emotional distress and
stress he had been experiencing. The grievor's physicians testified that these pre-existing
conditions probably affected the grievor's reaction to the accusations and suspension. He would
have perceived these allegations as a personal attack on his integrity. However, while
acknowledging the Employer's responsibility to consider reasonable and foreseeable
consequences in deciding how to proceed, the Employer could not have predicted the extent of
the grievor's reaction. It had to balance the patient's rights to security and safety against the
employees' rights to be protected from unwarranted and unproven accusations. In order to do so
it was obliged to investigate.
With respect to the Union's argument about the manner in which the grievor was removed from
the premises, Mr. Bahal reminded the Board that all three of the accused were treated in this
same manner. Dr. Jones was protecting the staff on Ward 07 and the grievor. Some of the staff
had stated they felt intimidated and Dr. Jones wanted to insure that they did not have to face the
grievor. He also wanted to ensure that the grievor was not asked or did not respond to any
questions concerning his removal from the workplace. He attempted a deal with the grievor in a
professional manner at all times. Once the decision had been made to suspend the grievor, Dr.
Jones did what he could to avoid making it a public display. He acknowledged that the grievor's
removal from the facility became known very quickly. It was asserted that Dr. Jones did all that
he could to avoid embarrassment to the grievor.
The grievor is also seeking a declaration that the Employer should have issued a public retraction
and apology after the formal investigation. Dr. Jones testified that no one referred to the grievor
by name except those within the institution directly involved in the investigation. In the
circumstances it is not surprising that he did not feel it necessary to publicly proclaim the
grievor's innocence.
40
Mr. Bahal reviewed the grievor's allegations that his offers to assist the Employer before the
preliminary investigation had been rebuffed. He asserts that had the Employer given him an
opportunity to defend himself at that stage, he could have eliminated himself as a suspect. He
also maintains that had the Employer had regard to the time schedules and sign-in sheets, it
would have proven that he was not even in the building at the time of some of the allegations and
thereby would have thrown suspicion on the credibility of the accusers. Even if the grievor was
correct, Mr. Bahal stated that it would not have been enough to eliminate him from the
preliminary investigation. By his own admission he was present during two of the alleged
incidents. His personal denials would not have been enough to exonerate him from the charges
in the face of eyewitness accounts. Mr. Fournier's evidence was that the time schedules and sign
in sheets could not be relied on as proof of someone's presence in the workplace. They could not,
on their face, provide an alibi.
With respect to the remedial issues raised by the Union, the Employer took the position that this
Board cannot issue an order allowing the grievor to decide at some time in the future whether or
not he wants to return to Ward 07. If the Board decides that, as part of a make whole remedy, he
should be returned to his previous duties, that order cannot be left open to some future date when
and if the grievor decides he is ready. The Employer also submitted that the damages requested
in the grievance are excessive and are not related to the actual facts giving rise to the grievance.
As to the tort damages the grievor is seeking for his emotional distress, pain and humiliation
based on the Employer's alleged negligence with respect to its duty of care, this Board does not
have the jurisdiction to make such an award, and, even if it did, the facts did not support such an
award in this case. There's no evidence of a loss of reputation or any other losses in this regard.
The grievor claims the primary investigation caused him humiliation in the community. The
form and substance of the investigation was not intended to cause the grievor any humiliation or
shame.
If this Board should find there has been a breach in this regard, the Employer submitted that it
should issue a "make whole" award to allow for compensation for loss of vacation, sick leave
and overtime opportunities. Finally, it was asserted that this Board does not have the jurisdiction
under the collective agreement or the relevant statutes to award punitive or aggravated damages.
It was further submitted that even if the Board should take that jurisdiction, the facts in this case
do not meet the test that has been applied and approved by the courts.
41
In reply, Mr. Holmes referred the Board to prevIOUS GSB decisions, which stand for the
proposition that there should be no remedial gap when a board of arbitration is attempting to
remedy a wrong under collective agreement.
Mr. Holmes stated that while he and Mr. Bahal agree that context is a primary consideration in
determining the facts of the case, they disagree on the interpretation to be given the facts in the
instant case. There has been no dispute that the grievor had experienced the normal grieving
process after the death of his father and had recovered and returned to work. His present health
condition began in January as a direct result of the rumors and subsequent preliminary
investigation.
The Employer, it was stated, relies on the PSA for its authority to suspend the grievor pending
investigation. A review of the case law will show that, in none of those cases, had the Employer
fettered its own discretion in its investigation by promulgating a policy such as the one in this
case, a policy which provides greater rights and protections to the employees under investigation.
This policy was intended to protect employees in the exact situation the grievor found himself in
as a result of false accusations. The Employer was not free to fashion an investigation that did
not conform to the process set out in the policy. The reasons, it was stated, are obvious: it is a
small community, the allegations are serious and the potential consequences to a professional
could be severe. That policy was completely ignored and the resulting impact on the grievor has
been proven.
Article 9.1 requires the Employer to take reasonable caution to protect the safety and well being
of its employees. It does not require malice or bad faith to breach the obligations under that
provision. When it has been proven that an employer's action or inaction has caused harm to an
employee, it must be held responsible for the consequences. The Employer has said there was no
evidence of damage to the grievor's reputation. The grievor testified about the questions he was
constantly being asked by his friends, his children and members of his community. He testified
that he lost some friends as a result of the rumours and suspicions and that he was forced to forgo
sports to avoid the scandal that was attached to his name.
42
In considering the amount of damages this Board should award, it must have regard to the
context of the claim. The grievor has provided it with ample evidence of the pain and suffering
he has endured as a direct result of the Employer's actions. The grievor deserves not only to be
made whole, but also to be awarded punitive damages for the employer's flagrant and intentional
failure to follow its own policy with respect to the preliminary investigation.
In the arguments advanced by both sides the jurisprudence relied on was extensive. In some
cases, each party urged me to accept the same case to bolster their case and/or weaken the other
side's position. Those cases are as follows: Re Tyee Village and Hotel, Restaurant, Culinary
Employees and Bartenders' Union (1999), 81 L.AC. (4th) 365 (Albertini); Re K.A. & M L. and
the City of Ottawa and Luc Gauthier and OC Transpo (Ontario Court of Appeal) January 21,
2005; Re Seneca College and OPSEU (Olivo) (December 4, 2001) unreported (P. Picher);
Ontario Divisional Court (November 1, 2004); [2006] O.l No.1756 Ontario Court of Appeal;
Jack Wallace and United Grain Growers Limited [1997] 3 S.C.R. 701 (Supreme Court of
Canada); Downham v. Lennox and Addington County [2005] O.l No. 5227 (Ontario Superior
Court of Justice); Re CVC Services and 1. WA.-Canada, Local 1-71 (Jackson) 65 L.AC. (4th) 54
(S. Lanyon); Re Bear Creek Lodge and Hospital Employees Union (2002), 106 L.AC. (4th) 254
(ll McEwen); Re OPSEU and Ministry of Community and Family Services (July 19, 2004)
GSB #2006-0447 (D. Leighton); Re OPSEU (Keeso) and Ministry of Correctional Services (
January 27, 1989) GSB #0009/88; Re Pacific Press and c.E.P., Loca11l5-M73 L.AC. (4th) 35
(C. Bruce); Re Treasury Board (Department of justice) and Bedirian (2006), 149 L.AC. (4th)
164 (S. Matteau); Re OPSEU (Witherow) and Ministry of Labour (December 4, 2000) GSB #
0912/98 (B. Herlich); Re OPSEU (Willis) and Ministry of Correctional Services (March 16,
1995) GSB #2755/91 (S. Stewart); Re OPSEU (Sammy et al) and Ministry of Correctional
Services (October 9, 2001) GSB # 0224/01 (D. Harris); Re Air Canada and International
Association of Machinists, Lodge 148 (1989), 7 L.AC. (4th) 194 (H. Hope); Re Blake and
Amalgamated Transit Union and Toronto Area Transit Operating Authority (May 3, 1988) GSB
#1276/87 (0. Shime); Re OPSEU (Latimer) and Ministry of Community Safety and Correctional
Services (March 5, 2004) GSB #1995-0131 (S. Kaufman); Re OPSEU (Gibbon) and Ministry of
Correctional Services (November 26, 2002) GSB #0687/00 (B. Kirkwood); Re OPSEU
(Stockwell) and Ministry of Correctional Services (February 10, 1989) GSB #1764/87 (T.
Wilson) (Application for Judicial Review dismissed November 2, 1989);Re OPSEU (Wilson)
(May 23, 1996) GSB #2855/91 (0. Gray); Re OPSEU (McKinnon) and Ministry of Solicitor
43
General and Correctional Services (October 11, 1996) GSB #1276/94 (R. Roberts); Re OPSEU
and Ministry of Correctional Services (May 19, 1005) GSB #2002-0161 (0. Gray); Re OPSEU
(Watts/King) and Ministry of Correctional Services (April 12, 1991) GSB #1376/90 (W.
Kaplan);; Re OPSEU and Ministry of Correctional Services (August 24, 1990) GSB #826/88 (D.
Kates); Re OPSEU (Arnold/Zozzolotto) and Ministry of Correctional Services (March 27,1991)
GSB #862/89 (R. Verity); OPSEU and Ministry of Correctional Services (April 28, 1997) GSB
#1252/85 (E.B. Joliffe);Re OPSEU (Myszko) and Ministry of Health (September 16, 1987) GSB
#2511/87 (J. Emrich); Re OPSEU (Leeanan) and Ministry of Correctional Services (August 22,
1990) GSB #1268/88 (J. Roberts); Re OPSEU (Baron et al) and Ministry of Community and
Social Services (June 28,1995) GSB #2968/91 (W. Kaplan); Re OPSEU (Sager) and Ministry of
Transport (October 6, 2004) GSB #2000-0377 (L. Mikus); Re OPSEU (Chan) and Ministry of
Education (June 12, 1996) GSB #1990/90 (N. Dissanayake); Re OPSEU (Franboise) and
Ministry of Community and Social Services (March 24, 1997) GSB # 2268/95 (J Roberts);_Re
OPSEU and Ministry of Correctional Services (August 24, 1984) GSB #69/84 (J. Samuels); Re
OPSEU (Bain/Kennedy/Klonowski) and Ministry of Correctional Services (February 24, 1990)
GSB # 11 02/87 (SE. Ratushny); Re OP SEU (Welsh) and Ministry of Correctional Services July
4, 1990) GSB # 1277/89 (M. Watters) and Re OPSEU (Bousquet) and Ministry of Natural
Resources (March 31,1991) GSB #541/90 (M. Gorsky).
REASONS FOR DECISION
The Grievance Settlement Board has long recognized that damages are an appropriate remedy
for a breach of article 9.1. (Howe, Dalton, Loach and Ministry of Correctional Services
(November 5, 1997) GSB #3155/92 (Dissanayake). Where there is a right under a collective
agreement there must be a remedy for a breach of that right. The Union argued that that was
especially significant in light of the ruling of the Supreme Court of Canada in Re Weber and
Ontario Hydro {1995} 2 S.C.R. 929 and the trend towards increasing deference to arbitration
boards. From the cases relied on by the parties, certain principles have been accepted and
applied by numerous panels of the GSB that are binding on this panel.
Section 9.1 places an onus on the Employer to make reasonable provisions for the safety and
health of its employees and requires both parties to cooperate to the fullest extent to prevent
accidents and promote safety and health in the workplace. Once the Union has demonstrated a
44
degree of risk, the Employer must show that it has taken reasonable steps to avoid that risk. An
assessment of the degree of risk is central to determining what is reasonable. The obligation is
not to protect against every possible risk but to engage in reasonable precautions. What
constitutes a reasonable precaution is to be determined by a fact-finding review of the
circumstances, which will require a balancing of the safety interests of the individual and the
operational interests of the Employer. While the balance is to be struck in favor of safety, the
Union must demonstrate that the balance has been inappropriately struck by exposure to an
unnecessary risk. Where an individual grievor is claiming harm, as in the instant case, he must
establish direct causation, supported by medical evidence, between the employee's symptoms
and employer's practices.
The cases provided to the Board are illustrative of situations in which the employer's obligations
under article 9.1 have been examined, most often in the field of corrections. In the Myszko
case, (supra), a nurse suffered a car accident that she claimed was the result of the employer's
negligent plowing of the roadway into the psychiatric facility. The employer had a policy that
dictated when snow removal was to be done. It was the union's position that it had not conducted
itself in conformance with its own policy. The Board found insufficient evidence of the road
conditions to allow the grievance but noted at page 16;
Under article 18.1, the Employer is not an insurer against employee accidents. Liability
for damages will be incurred in circumstances where the employer has failed to take
reasonable precautions to protect the health and safety of its employees.
I note here that the cases refer to article 18.1, which is identical to article 9.1 of the current
collective agreement.
In the case of Bolton (supra), the issue was reimbursement for anti-glare glasses for work on the
visual display terminals. The cost of these glasses was more than the limit allowed under the
insurance plan and the employer took the position it was not obliged to pay the difference. The
grievance was framed as a violation of the health and safety provisions of the collective
agreement. The Board said, at page 18;
. .. However in assessing whether reasonable provision has been made for the safety and
health of employees at work, regard should be had to all of the relevant circumstances.
The Willis case (supra) is of some assistance. In that case a correctional officer grieved that the
employer had failed to take reasonable provisions for his health and safety while he was assigned
45
to the female area of the institution. He was concerned about the stress associated with the
possibility of unfounded allegations of sexual assault. His concern was based on previous
unfounded complaints of sexual assault that had resulted in police investigations. He asked for
an order that the employer assign another correctional officer, preferably a woman, to
corroborate their innocence if necessary, or, in the alternative, that cameras be installed to
monitor the area. The Board, at page 12, stated as follows:
. .. We have no hesitation in accepting Mr. DiRuzza's evidence that being the subj ect of a
criminal investigation was stressful and that Mr. Willis experiences stress associated with
his concerns about such a situation arising when he is assigned to the female unit.
Whether or not the evidence before us is sufficient for a finding that the grievor
objectively faces the risk or danger to his health and safety by virtue of stress is not a
matter that need be specifically addressed, as it is our view that any such risk or danger is
one he is reasonably required to assume as a correctional officer.
The job of a correctional officer requires him or her to deal with inmates, a situation that
will inevitably present challenges and difficulties. In the environment of a correctional
institution it is not surprising that unfounded allegations against correctional officers
arise. When such allegations are made, they must be investigated and serious allegations
are appropriately dealt with by the police in accordance with Ministry policy, as they
were in the allegation involving Mr. DiRuzzia.
The Board in that case allowed that the remedy requested by the grievor might alleviate any risks
to correctional officers in these situations but went on to state that optimum safety was not the
test under arti cl e 18.1.
The Board referred to the case of Taylor-Bapiste and Ministry of Correctional Services
(Dissanayake) that was considering an allegation that the employer had failed to make
reasonable provisions for the health and safety of its employees because of the feeding
procedures employed in the institution. It was ultimately concluded, on page 10 of the decision,
as follows:
There is no question that from the grievor's point of view, the proposed slot system is
safer than the existing procedure. However, as the Board observed in Re Moulton,
230/88 (Watters) at p. 12, "... It is not enough to show that the granting of the remedy
might improve safety within the workplace. Rather the union must establish that the
working conditions suggest a real or serious possibility of harm". One might be able to
come up with a number of proposals, which this Board may be convinced will make a
CO's job safer than it is. However, optimum safety is not the test of article 18.1.
In a similar vein, the Board in the Samuels case (supra) stated at page 14:
46
It is generally conceded that a CO's job is inherently more hazardous in most other jobs
in the Ontario Public Service. That is a relevant factor because what is it reasonable
precaution for a clerk working in a government office will not be the same for CO.
Another review of the obligations under what was then article 18.1 is found in the Leeanan case
(supra). In an effort to prohibit contraband from being brought into the institution the employer
instituted a stringent program of searching inmates and their quarters. In addition, correctional
staff was forbidden to carry personal bags and lunch pails to areas where inmates were housed.
The grievor, a diabetic, grieved that rule prohibited him from carrying with him a bag containing
items vital to the treatment of his diabetes. The employer, on the advice of a physician, advised
the grievor that only small items such as candies, packages of artificial sugar and snacks could be
carried to the floor and that those items did not need to be in a bag. All of the other items on his
list could be stored in his locker. The grievor did not agree with the steps taken by the employer
for the maintenance of his health. The Board concluded that the ministry had fully discharged its
responsibilities regarding the first sentence of article 18.1. It found, however, that the employer
had failed to meet its obligations under the second portion of article 18.1, that is, to cooperate to
the fullest extent possible in the promotion of the safety and health of its employees. Its failure
to meet with the union and the grievor before deciding which items were necessary and which
items were not was a breach of article 18.1 but that breach did not warrant of remedial order
from the Board.
In Union Grievance (Kates) (supra), the issue was whether the employer had breached article
18.1 by failing to assign an adequate number of correctional officers as escorts during transport.
The Board allowed that assigning additional correctional officers in those circumstances might
result in a safer and more secure trip but went on to say, at page 11;
What appears to be the important question to ask is whether the employer in deviating
from the desired norm or ratios caused an unnecessary or an acceptable risk to the safety
and security of the members of the bargaining unit involved be they correctional officers
or professional staff.
It referred to the comments of the Samuels Board (supra), where it was said "It is necessary to
balance the safety of employees" in adopting appropriate measures for compliance with the
collective agreement. He then went on, at page 12, as follows:
And in our view so long as the employer maintains the aforesaid process of addressing
the attendant risks in balancing the necessity for the safety of its employees against the
47
care and custody of the inmates involved, then it will be incumbent on the trade union to
demonstrate that the balance, having regard to that was risks, has been improperly placed.
It is clear from a review of the cases provided to me by the parties that the first step in dealing
with the allegations of a breach of article 9.1 in the instant case is to determine whether the
Employer's decision to suspend the grievor during the preliminary investigation can be
characterized as a breach of its obligations to take reasonable precautions for the health and
safety of the grievor. The onus is on the Union to establish the degree of risk and to prove the
causal link between the actions of the Employer and the harm done to the grievor as a result of
those actions.
There is very little dispute about the actual events giving rise to the Employer's decision to
suspend the grievor. Mr. Fournier became aware of rumours circulating within Ward 07 about
patient abuse sometime in December 2002. By the end of the month the rumours had been
confirmed by several staff members and, in consultation with Ms. Duncan and Ms. McLaughlin,
it was determined that an investigation was warranted. He acknowledged that he had not
reviewed the policy before he began the investigation and agreed that he had not followed it in
its strictest terms. However, in his view the circumstances were unique. Usually single
allegations of wrongdoing are reported in an incident report and recorded in the patient's chart.
From that incident report a decision is made concerning the action to be taken, if any. The staff
person involved would be interviewed, the allegations reviewed with him/her and any other
people involved would be consulted. In this case, there was no incident report to initiate that
process. The allegations were vague in the beginning but took shape as time progressed. There
was no reason to doubt the credibility of those reporting the abuse and there was a consistency to
the stories that caused Mr. Fournier concern. When he interviewed the staff, he posed open-
ended questions in the hopes of encouraging discussion. In retrospect, he agreed that the
questions could and should have been more focused on the actual allegations. In any event,
based on his inquiries, he concluded that further investigation was warranted.
It is this stage of the process that the grievor believes should have been handled differently and
that, had it been done properly, he would have been exonerated immediately. He considers the
Employer's breach of the policy to be a breach of its obligations under the collective agreement.
First, the policy is not contained in the collective agreement. It is a unilateral rule, promulgated
by the Employer without consultation with the Union. A failure to follow the policy cannot be a
48
violation of the collective agreement in and of itself any more than Employer policies are
unilaterally enforceable against bargaining unit members absent a breach of the collective
agreement. It can be evidence of bad faith, malice, unreasonableness and many other grounds
upon which the Union might argue led to a breach of the collective agreement. The question for
this Board is to determine is whether, in the circumstances of this case, the Employer's deviation
from its own policy resulted in an unacceptable risk to the grievor's health and safety.
With respect to that policy, he believes that had he been told the details of the allegations at the
onset of the investigation he would have had time to reflect on the incidents raised and to
persuade the Employer that he was innocent of the charges. He relies on the fact that he was
never given the opportunity to prove he was not even at work during two of the specific alleged
incidents of abuse. He believes that, had he been able to show the Employer these absences, he
would have been able to cast doubt on the other accusations relating to him. He believes that the
Employer had access to all the evidence it needed to exonerate him but chose to ignore it and
accept the evidence of others.
The evidence does not support the grievor's beliefs. Even if the grievor had been told the
specifics of the complaints against him, it is the Employer's evidence it would have felt
compelled to investigate further given the number of allegations and the detailed accounts of the
eyewitnesses. Three health care professionals specifically identified the grievor and Lenio and
Walton as abusers and the grievor's protestations of innocence would not have satisfied the
Employer that no further inquiries were needed. All of the witnesses, including the grievor,
agreed that these allegations, if true, were very serious. They involved physical assaults on some
of the patients that raised the possibility of criminal charges. Dr. Jones testified that it was their
responsibility to ensure a safe and healthy environment for the patients in their custody. In view
of the extent and nature of the alleged abuse, it is unlikely he would have agreed to dismiss the
accounts of the eyewitnesses solely on the basis of the denial of one of those accused.
The grievor relies on the time schedules and sign-in sheets as proof of his innocence in respect of
two of the alleged incidents and believes the failure of the Employer to consider those sources a
major factor in the consequences that followed his suspension. Mr. Fournier did consider those
documents. He did not consider them to be reliable and decided to ignore them for purposes of
his investigation. He testified that not all employees signed in on arrival, that not all employees
49
signed out or left the facility at the end of their shift, the time sheets were often altered before
and during a shift and shift changes were common and not always noted on the time sheets. In
view of the specific allegations against three named nurses it is not surprising that he did not
consider these documents as proof of an employee's presence or absence from the building.
Even if he had noticed that the grievor was absent for two of the alleged incidents and even if he
had been prepared to accept those time sheets as accurate, the fact is the grievor was working
during other alleged incidents and the Employer had a duty to investigate further.
The grievor contends that the Employer was obligated under its policy to use the least obtrusive
means possible during its investigation and it could have taken less drastic steps than suspension
during the investigation. It could have assigned him to duties not involving patient contact. That
would have protected the safety concerns for the patient and the health of its employee. I
disagree. Obviously, and the grievor does not disagree, it would have been impossible to allow
the grievor back on Ward 07 while he was being investigated for patient abuse. Some of the
witnesses had stated they felt intimidated and had been afraid to chart what they had seen. The
continued presence in the building of those accused of abuse would have exacerbated these
concerns and could have had a negative effect on the investigation. It was not unreasonable for
the Employer to decide that the most suitable course of action would be to send these employees
home until the allegations could be disproved or substantiated.
The cases refer to a balancing of the interests of the employee in a safe and healthy workplace
against the operational requirements of the Employer. Those operational requirements involve
the care and custody of the patients. The Union asserts that the Employer's own policy does not
contain a hierarchy of rights but rather contemplates an equal protection of rights. In this case
the Employer had to consider, on the one hand, the physical protection of the patients in its care
and custody and, on the other hand, the right of its employees to be protected from baseless and
vicious allegations. The environment of this facility is similar to that of any correctional
institution. The patients are being detained involuntarily and consider the nurses to be their
guards. It is not unusual to have complaints from patients about their keepers. The employee,
when he/she becomes the subject of these complaints, should expect a fair and thorough
investigation of these allegations so that he/she can be vindicated. The Employer decided the
only way to ensure an objective and impartial investigation was to suspend with pay the alleged
abusers. When the formal investigation was completed, it was hoped they would be able to
50
return to work without doubt or guilt. In the circumstances the Employer's decision was not
arbitrary or discriminatory. It was arrived at after consideration of the circumstances at the time.
There is no evidence there was any bad faith or malice in the decision-making. All three accused
were treated in the same manner. The Employer's action was, in my view, a reasoned and
reasonable attempt to provide a safe and healthy environment for all involved.
Another example of what the grievor claims was a violation of the policy relates to the fact that
Mr. Fournier recommended further investigation even though the policy clearly stated he was
only to be a fact-finder and was not to make any decisions. And yet, the grievor is challenging
the preliminary investigation process because he should have been exonerated at the outset. That
would have required Mr. Fournier to make a determination about the truth and accuracy of the
eyewitness reports, something he was clearly prohibited from doing under the policy.
I have stated earlier in the award that I accept the medical evidence supporting the effect this
suspension has had on the grievor and the consequences he has suffered and continues to endure.
However, before I can do anything to remedy those effects, I must find there has been a violation
of the Employer's obligations under article 9.1 and I am unable to do so. The Employer took
reasonable steps to ensure the safety and health of its patients. In doing so he suspended the
grievor with pay. The Employer could not have foreseen the grievor's reaction to these events.
There was no reason for him to believe that he would react so strongly to the suspension. He
was unaware of the grievor's fragile emotional state at the time or that, as an individual with an
obsessive personality, he would see this as a personal attack against his professional status as a
nurse.
In this day and age the public expect professionals to be accountable for their actions.
Allegations of this nature must be investigated thoroughly and promptly and, sometimes, there is
a cost involved, a cost that is most often borne by the professionals involved in caring for the
accusers. While it is important to balance the interests of the staff and the patients in dealing with
these situations, it is inevitable that one of the burdens of being a professional caregiver in this
environment is the acceptance that allegations of this nature must be examined independently
and impartially without the assistance or interference of the accused.
51
In the instant case, the Employer had no alternative but to investigate the allegations and, in my
view, did so in a logical and practical manner having regard to the nature and severity of the
allegations. Therefore, the grievance is dismissed.
The parties have presented comprehensive and thoughtful submissions about my jurisdiction to
award special, punitive and tort damages and have provided me with numerous cases to support
their position. In view of my decision on the merits of the grievance, I do not have to comment
on those submissions.
Dated at Toronto, this 9th day of October, 2007.
.dA"
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~~
Loretta Mikus, Vice-Chair