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HomeMy WebLinkAbout1975-0002.Koch.76-05-12Ontario 2/7'S CROWN EMPLOYEES CR~EVANCE SETTLEMENT 416/965/1410 Queen’s Perk Toronto. Ontarlo BOARD Between: Before: WA 125 IN THE MATTER OF AN'ARBITRATION' Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Erhard W. Koch (The Grievor) And The Ministry of Health (Hamilton Psychiatric Hospital) (The Employer) D. M. Beatty - Chairman G. K. Griffin - Member H. E. Weisbach - Member For the Grievor Mr. George Richards - Representative Ontario Public Service Employees Unit For the Employer Mr. I. Freedman - Counsel Ministry of Health Hearings Sutton Place Hotel, Toronto, Ontario, January 15th, 1976 Westbury Hotel, Toronto, Ontario, May 6th, 1976 -2- Mr. E. Koch who was employed as a Psychiatric~Nursing . Assistant in the Ministry's Hamilton PsychiatricHospital grieves that on July 22, 1975 he was dismissed without just cause. The parties were agreed that this Board was properly seized of Mr. Koch's grievance and, over the course of two days, adduced evidence and presented argument surrounding the grievor's dismissal. According to the Ministry, Mr. Koch was dismissed for having maliciously and without provocation physically abused Mr. J., a patient of that facility, in the early morning hours of June 17, 1975. To support their allegations, the Ministry called two witnesses, Ms. J. Bremer and Ms. T. Abugan, both Registered Nurses, who claimed to have witnessed the grievor striking the patient. More specifically, according to Ms. Bremer, she had asked the grievor at approximately 3:00 a.m. to attend to Mr. J. and to request him to remove his shoes. Apparently until that time Mr. J. had been pacing up and down the corridor and lounge areas of the ward in a manner that Ms. Bremer feared would disturb the other patients who were sleeping on the ward. According to her, she noticed that after Mr. Koch had reached the end of the lounge area where Mr. J. was then situate, the two of~them were standing "nose to nose", talking to each other, when suddenly Mr. J. spat at Mr. Koch. She testified that at that point Mr. Koch grabbed the patient's clothing around his neck, threw him to the floor and held him there with his knees across Mr. J.'s abdomen and his hands at his throat. She stated that Mr. Koch then stood up and,while Mr. J. -3- remained lying on his side, appeared to kick him several times in the abdomen. Although she testified that from where she stood she could not actually see the grievor's foot make contact with the patient, she did see the patient's knees recoil into his stomach area as if he had been kicked. Because, from her perspective, she was certain that Mr. Koch was abusing Mr. J., she immediately walked across the lounge area to the nursing station to secure the assistance of Ms. Abugan who also was on duty that evening. She claimed that as she moved across the lounge to get Ms. Abugan she saw the grievor remove Mr. J.'s belt and, although not actually seeing him strike the patient with it, heard a slapping noise come from behind her which she assumed was caused by blows being struck with the belt. When Ms. Bremer reached Ms. Abugan at the nursing station the two of them proceeded back down the lounge area to the point where the griever and Mr. J. were located. According to Ms. Abugan when they reached Mr. Koch and Mr. J., the former was standing over the latter who was still lying on his side on the floor. Ms. Abugan stated that at that point Mr. Koch was telling Mr.~J. to get up and, when the latter failed or refused to do so, Mr. Koch again kicked him in the stomach area. She testified,that either she or Ms. Bremer then told Mr. Koch to stop it and to let Mr. J. remain where he was on the floor if that was what he wanted. According to her evidence, Mr. Koch complied with those instructions and the three of them then left the patient on the floor and returned to the nursing station. From their -a- evidence that sequence apparently concluded the incident and,except for their reporting to their superior later that morning, nothing further transpired during the remainder of that shift. In all material respects, the grievor's evidence as to what transpired on the morning of June 17 between himself and Mr. J. is completely at odds with the testimony of Ms. Bremer and Ms. Abugan. Specifically he denied ever having kicked Mr. J. in the abdomen or having slapped him with the belt. Moreover he testified that he could not even recall Ms. Bremer and Ms. Abugan coming down to the area where he and Mr. J. were situate and telling him to leave the latter alone. Rather, it was his evidence that when he asked Mr. J. to remove his shoes, the patient had become verbalJy abusive towards him, had spat at him and when he attempted to remove the shoes began to flail and swing his arms. Furthermore he stated that although he did not recall actually grabbing the patient by the throat, it was his understanding that when a patient became as physically and emotionally agitated as Mr. J. had become, that such a procedure was an approved method of patient restraint and one which he had used in the past. Although there was certain other evidence adduced before this Board with respect to various incriminating statements allegedly made by the grievor following the events described, we do not, for the reasons that follow, believe it materially adds to or affects the ultimate determination we are called upon to make. Rather from the evidence described and on the argument of the parties it is manifest that the success or failure of Mr. Koch's grievance fails to be determined on whether the employer has, on the balance of probabilities, .? . . -5- established that the grievor did in fact engage in the misconduct ascribed to him. That determination in turn, in the final analyses, becomes a rather narrow one of credibility. That is, and although it is true, as Mr. Richards suggested, that in the circumstances described, one need not accept or reject in its entirety the evidence adduced by one party, or the other, nevertheless on their crucial aspects, the evidence of Ms. Bremer and Ms. Abugan stands in direct conflict with that proffered by Mr. Koch. Faced with this stark conflict in the evidence this Board has no hesitation in choosing the testimony of Ms. Bremer and Ms. Abugan over that of Mr. Koch. We found that in all material respects they gave their evidence in a straightforward, clear and dispassionate manner. More critically perhaps, their evidence was, in most respects, corroborative of that proffered by the other. Furthermore to reject their evidence would require this Board to impute to them motives which were entirely inconsistent with their status as essentially concerned but ultimately di~sinterested employees. That is to say if this Board were to believe the grievor, and conclude that at no time did he kick Mr. J., slap him with a belt or indeed even see Ms. Bremer and Ms. Abugan, we would be led to the conclusion that these two employees, who testified that they held no personal animosity towards the grievor,had simply concocted their evidence for some ulterior purposes. In the absence of any . evidence or indeed- suggestion to support such a conclusion, we must and we do accept their evidence as being premised upon and initiated by a genuine concern that what what they had,witnessed not be repeated in the future. By way of contrast the evidence of the grievor was obviously self serving. His evidence, particularly in -6- cross examination, was at times vague and incomplete. His denial of even seeing Ms. Bremer and Ms. Abugan during the course of the incident we find simply to be beyond belief, and in our view colours most, if not all, of the evidence he proffered to this Board. Against that assessment of the credibility of the witnesses, and given the completely contradictory nature of their testimony, it necessarily follows that we must find as a fact that the grievor did maliciously assault the patient, Mr. J., in the manner described by Ms. Bremer and Ms. Abugan. So characterized, we do not believe one can, as Mr. Richards suggested, describe the grievor's actions as simply an error in judgement. Although it may be, and indeed the Ministry conceded, that the grievor would not have received any formal training in proper and approved methods of patient restraint, to characterize the deliberate kicking of a patient as.anything,but a malicious assault would be to allow the art of euphemism to colour the fact of reality.. To suggest that the grievor's behaviour towards this patient could somehow be attributed to a lack of formal in- struction in the methods of restraining an agitated and excited patient offends common sense and belittles the grievor's own in- telligence. To the contrary, we believe that even if, as Mr. Koch testified, Mr. J. had spat upon him, swore at him and was flailing out at him, there was simply no defensible or rational basis upon which Mr. Koch's aggravated response could have been justified. Against that determination we believe that the Ministry had just and reasonable grounds on which to support its decision to -7- terminate the grievor. Put somewhat differently, we do not believe this is a proper case for this Board to exercise its statutory authority to substitute some other penalty for that of dismissal. Put simply we believe that the penalty imposed was both just and reasonable. Although there was no evidence adduced before this Board that the gri~evor has had anything but a long and otherwise unblemished employment record, there are several reasons why we are not prepared to alter the penalty imposed in this case. In the first place, and perhaps of paramount importance, it must be recognized that our powers to substitute some other penalty than that initially imposed by the employer is dis- cretionary in nature. Accordingly where, as here, the grievor has fabricated his evidence before.this Board as to what we have found transpired on the morning of June 17, this Board can not be expected, in the usual case, to be disposed to exercise that discretion. To paraphrase our remarks in the Re Harris 7/75 case, by exhibiting such disregard for the nature of these proceedings, Mr. Koch has compounded his transgressions and demonstrated such flaws in his character as to make it impossible for this Board to conclude that he could be returned to the Ministry and faithfully serve the needs and cares of its residents. More particularly, we would draw the parties' attention, to the following remarks made by this Board in the Re Harris (supra) case, where at p. 22 we stated: Nevertheless, yiven our comments in an earlier award, Re Maw's l/75, we wish to advise the parties that the conclusion which was mandated in the circumstances of this case, need not have prevailed and might not prevail in all future cases. Rather, had the grievor, instead of denying the events which we have -a- found to have occurred on June 1, admitted those facts to this Board and come before us conceding that he had lost self-control and had advised this Board as to circum- stances 01‘ reasons which caused him to act in a way which was totally out of character with his previous thirteen years of employ- ment at the hospital, we might well have as we did in an earlier case, come to the con- clusion that he could have returned to the hospital without endangering the safety and welfare of its residents (See Re Hopcraft (supra)). In such a case, this Board could properly have weighed his long and exemplary record with these residents as supporting the conclusion that his actions of June 1, 1975 were a momentary aberration, not likely to repeat themselves and to conclude that his continued employment, after some period of suspension, was compatible with the safety and well being of the residents. By choosing to come before this Board however and denying what we have found as a fact to have occurred, he had effectively foreclosed such a response being articulated by this Board. There are additional reasons why this Board is not prepared to exercise its powers under s. 18(3) of the Act. In the first place,,and following from our remarks in the Re Harris decision, we do not believe that the grievor has offered this Board any positive evidence on which we could reasonably conclude that he is capable of responding to some lesser but corrective form of discipline. Moreover, although this Board is committed to the principles of rehabilitation and correction as two of the paramount themes and premises of employment discipline (See-Re,Maw l/75), where, as here, the employee persists in his denial of what the evidence clearly reveals to have taken place, this Board must have serious reservations as to the likelihood that Mr. Koch can reasonably be expected to respond to some lesser form of sanction. -9- Furthermore, in the employment context in which this grievor worked this Board simply can not consider and weigh an employee's rehabilitative potential in isolation of an,d divorced from the real and obviously'vulnerable interests of the patients with whom he must work. To the contrary, in such an environment this Board must be scrupulously vigilant that in assessing the re- habilitative potential of some one such as Mr. Koch, we do not un- wittingly prejudice the equally compelling interests of those over whom Mr. Koch would exercise care and control. In this respect our own remarks with respect to another Ministry which is charged with a similar duty are entirely apposite. In Re Hopcraft 4175 this Board expressed the view that: This employer must of necessity take every precaution and be uncompromisingly vigilant to ensure that the rights of those persons under its charge are at all times safeguarded and secure. This Ministry in short cannot relax its vigilance in ensuring that the type of behaviour engaged in by this qrievor, for whatever reason, is not repeated. In the result, although in other contexts this Board might well be prepared to allow an employee the benefit of our doubt and to assume he would respond to corrective discipline, in the context in which Mr. Koch was employed, we will only do so where we are entire1.y satisfied that the interests of the patients over whom this Ministry has responsibility will not thereby be jeopardized or prejudiced. Put simply this Board can not and will not subsume the interests and well being of those patients to the interests of an employee whose potential for rehabilitation this Board perceives to be - IO - oroblematical at best, In the result, having satisfied itself that the Ministry has discharged the burden of proving that the grievor did abuse the patient Mr. J., in the malicious and aggravated manner described above, we must conclude that it had just and reasonable cause for the dismissal invoked. In the result and for the reasons given, this grievance must be denied. Dated at Toronto this 12th day of May, 1976. . . . Beatty Chairman I concur G. K. Griffin Member I concur H. E. Weisbach Member