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HomeMy WebLinkAbout1975-0007.Harris.75-12-19CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 416/965/1410 Owen’s Park Toronlo. Ontario MIA125 IN THE MATTER OF AN ARBITRATION : Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. T. W. Harris (The Grievor) And The,Ministry of Community and Social Services (Cedar Springs Psychiatric Hospital) (The Employer) Before: D. M. Beatty Chairman G. K. Griffin Member P. A. Sipurdson Member For The Grievor 6. Bruce - Ontario Public Service Employees Union For The Ministry R. J. McCully - Counsel Ministry of Community and Social Services Hearino Westbury Hotel, Toronto Ontario, December 11, 1975 Sutton Place Hotel,~Toronto Ontario, December 17, 1975 1. Mr. T. W. Harris who, until August 27 of this year, was employed as a Residential Counsellor 3 at the Cedar Sprinqs Psychiatric Hospital, one of the facilities operated by the Ministry of Community and Social Services, qrieves that he was dismissed without just cause and seeks, by the grievance he has brought before this Board, to be reinstated with full compensation and without the loss of any other benefits or service credits. There being no dispute between the parties as to the constitution of this Board, or as to its jurisdiction to hear this matter, the Board proceeded to hear the evidence adduced by the parties over two prolonged and protracted days of hearinqs with respect to the circumstances surroundinq the alleged incident which precipitated Mr. Harris's discharge. It is essentially the distillation of that evidence and the resolution of certain fundamental conflicts inherent in it, rather than the rationalization and application of any subtle principles oft relevant jurisprudence which is the task confrontinp this Board and which will prove determinative'of the grievance before us. ~'To put the grievance of Mr. Harris in its proper context much evidence was adduced by the Ministry, which was substantially agreed to by the grievor, as.to the pa~rticular context and environment in which the alleged incident which precipitated Mr. Harris's discharge is said to have occurred. It might be noted at the outset, although we shall have more to say on this below, that well over half of the time which was required to hear this grievance, was taken up with the testimony given by witnesses describing the institutional backdrop to the alleged incident which ultimately proved neither to be in dispute between the i li . 4 ~ J 2. parties nor relevant to the grievor's defence to the charges made aaainst him. Had the parties made the effort to seriously communicate with each other prior to coming before this Board the issues between them could have been precisely delineated and more narrowly circumscribed, so that proceedings in this matterwould obviously have been expedited and the time of this Roard and its members freed. to hear other matters which __ are outstanding before it. In any event after all of this evidence was presented before the Board and subjected to minute and detailed cross-examination, the following facts appear to be beyond dispute. The gri~evor as noted is employed in the Ministry's Cedar Springs Psychiatric Hospital as a Residential- Counsellor 3 and more particularly on a ward known as Norfolk I North which is part of the facilities' Activity Unit. He has in fact been employed on that particular ward for a period of some three years. That ward houses thirty five male residents who are cared for by a staff of twelve, consisting of Mr. A. Neville, a Residential Counsellor 4, who . is in charge of the ward, Messrs. T. Harris and Knox who are Residential Counsellors 3, and who assume supervisory duties in Mr. Neville's absence, ( seven Residential Counsellors 2 and two Hospital Attendants. These latter two positions were held by Mrs. P. Penoit and Mr. J. McGorman who claim to have witnessed the incident 'on which the Ministry relies in its dismissal of the ,grievor. Of the thirty five residents living on Norfolk I North, there appears to be a universal consensus of the staff who gave evidence to this Board that a Mr. M., who the grievor is alleged to have abused on June 1, 1975, f i 3. is, if not the most troublesome patient, certainly one of the most difficult. More specifically, Mr. M., although chronologically being some twenty-two years of age, weighing approximately 1513 pounds and standing , some five and a half feet high, in fact only possesses the mental comprehension of a four year old chi1.d. He was described by the staff as being severely retarded, capable of only the most limited and rudimentary form of ,,~ speech and suffering severe behavioural problems. Df particular concern to the staff was the patient's proclivity to engage in self abusive behavior such as banging his head, picking at his rectumunti?-.it bled, aswell as kicking, striking or biting himself., In addition to this self abusive behavior, although apparently of less immediate concern to the hospital's staff, Mr. M. also manifested certain destructive and aggressive behaviours such as the tearing of-his clothing, attempting to break windows; slamming doors, as well as spitting, scratching, striking, kicking and throwing objects at both the staff and other residents. It was because of these behavioural problems and particularly the self abusive ones that when Mr. M. was "conferenced" by the staff of Norfolk I North at his' annual review on March 26, 1975, it was agreed by those present that Mr. M. should be referred to.the Behaviour Modification Unit. That Unit, as described by Dr. Higenbottam the Chief Psychologist of the Hospital, is a physically distinct unit, capable of handling ten patients, which is more intensively staffed so.ps to allow the unit to design particular and specific programmes for its residents who have manifested severe behavioural problems. It was to that Unit that Mr. M. was referred by the Activity Unit and on April 1, 1975 was actually conferenced by that Unit. At that second conference, attended primarily by the Staff of the Pehaviour Modificationunit, together with some representatives from Mr. M.'s own ward, it was decided that Mr. M. should be placed on a 4. high priority list for admission to the Unit as soon as space was available. However, apparently as a result of an increase in this patient's sel~f abusive behaviour during the period April 5-7, Mr. M. was admitted to the Rehaviour Modification Unit on April 7 on an emergency basis. llpon his admission on April 7, 1975 Mr. L. Ball, a Psychometrist who liased between the Psychology Department and the Activity Unit, with the approval of Dr. Higenbottam, and after securing the necessary parental consent, drew up a treatment programme (Exhibit 3) which had as i its purpose the elimination of the self abusive, aggressive, destructive ti and non-compliant behaviour. The essence~of this treatment programme called for the patient to "stand out" in a corner for five minutes whenever he emitted aggressive behaviour and for the patient to%e ~subjected to an aversive conditioner which emits an electrical shock for any self abusive or non-compliant behaviour. This latter procedure was, according to the treatment order always to be proceeded by the staff saying "No" to the patient before the shock was actually applied. In addition, the order stipulated that the shock was to be applied for two seconds ..i and'never to the head or torso of the patient. From all of the evidence,.as in a result of undergoing this treatment programne,in the Behaviour Modification Unit, Mr. M.'s self abusive behaviour was substantially reduced although the other behavioural problems continued to manifest themselves. AS a result it was decided that Mr. M. could be returned on April 16 to the more familiar surroundings of Norfolk I North where the psychology treatment order of April 7 would be maintained. From..the evidence of Mrs. M. Brooks, a Residential Counsellor 2, 5. on Norfolk I North, Mr. Ball brought F?r. M. back to the ward on the morning of April 16, together with the treatment order form and the aversive conditioner. At this time, or shortly thereafter, and again later that afternoon when the afternoon shift came to work, Mr. Ball explained to the staff the contents of the treatment order form, told them to read it and explained the method by which one was to _., apply the aversive conditioner to Mr. M. From the evidence it appears Mr. Ball specifically advised the staff that they were always to say "No" to Mr. M. prior to giving him a shock with the aversive conditioner for self abusive or non-compliant behaviour; that it was to be applied for two seconds, to the arms and legs only, and never to the head or torso of the patient. Finally,and so as to ensure that the staff were aware of what the patient was being subjected to, each of the staff, (with one or two exceptions being persons who did not want to use the conditioner) was subjected to a shock. This whole training process apparently took approximately half an hour. In much the same fashion Mr. Ball instructed Mr. Neville later in the afternoon and Mr.. Neville in turn instructed seve,ral persons on the staff of Norfolk I North, including the grievor, who were absent from work on April 16. Following this instruction the training order was placed, along with other similar,memoranda and orders, onthe bulletin board in their staff office onthe ward. From the~evidence of the staff and as corroborated by a log sheet prepared by Mrs. Brooks, under instructions,from Mr. Ball, (Exhibit 8), this maintenance programme was felt to be achieving the desired results so that on May 12 a new treatment order was prepared for Mr. M..and delivered to the staff on Norfolk I North. Essentially, and.as exhibited . . 6. on the log form, it was because the frequency of the self abusive and non-compliant behaviour was decreasing that Mr. Ball determined, in conjunction with Mr. Neville, and with Dr. Higenhottam's approval to alter the patient's treatment proprarnne. This new programme~which continued in force from May 12, 1975 until June 9, 1975 differed from the initial one in several important respects.Essentially the changes introduced at this time were of a transi,tory nature.and anticipated that ultimately the patient would have responded sufficiently so as to ultimately allow for the complete withdrawal of the conditioner from the programme. At this interim stage however and in anticipation of this ultimate goal, it was determined that the application of the aversive conditioner was to be preceded in 'addition to saying "No" to the patient, by a squirt of cold water in his face. 'Immediately after the squirting of the water Mr. M. was to be given a shock; but now of one second duration only.Further,following the application of the conditioner the patient was to "stand out" in a corner for a period of two minutes.Apart from these modifications it was also determined that Mr.M.was to-be given the.-water and shock treatment for aggressive ,behaviour as well as for,under the proceeding programme, self abusive or non-compliant behaviour. Although this treatment order form was, on June 7, 1975 again modified so as to eliminate all use of the aversive conditioner, it is a matter of record that at the material time on June 1, 1975 when the alleged incident is said to have occurred, the treatment order of May 12, 1975 was the operative order. Further and although it appears from the evidence that Mr. Ball did not specifically instruct the staff of Norfolk I North as to the changes in Mr. M.'s progra.mne, it is clear from the 7. evidence that this new treatment order was posted on the office bulletin board and was read by all of the staff. That Mr. Harris himself was aware of the new treatment order is confirmed by his own evidence and by his notation on the log (Exhibit 8) that a new training order had i been prescribed for this patient,. _* It is against that setting that we may now turn to the alleged incident of June 1, 1975 on which the employer relies in its dismissal of Mr. Harris. In sharp contrast to the evidence described above, the evidence with respect to the events which took place at approximately 7:20 a.m. on that day is anything but consistent. On the one hand the Ministry called two persons, Mrs. P. Benoit'and Mr. J. McGorman, both Hospital Attendants, who testified as to certain events which they claim to have witnessed, while on the other hand we have the evidence of the grievor himself who described a very different series of events. As noted at the outset, it is the resolution of this sharply conflicting evidence which will be determinative of the grievance before us. According to Mrs. Benoit she was working the night shift from 11:30 p.m. until 7:30 a.m. on the day in question. She testified that r as the day shift came to work at approximately 7:00 a.m. she was in the process of preparing the standard night report for the shift she was just completing. She stated that at approximately 7:OO~a.m. Mr. Harris came into the office to commence work on the day shift. According to her evidence, Mr. Harris was standing at the back of the office, near ..the refrigerator when,at about 7:20 a.m.,the patient, Mr. M., came in from the dorm and threw his‘pyjama bottoms either into the office or onto the office partition. -According to her, that in and of itself was .-. 8. not a particularly unusual event for this patient in that apparently Mr. M. often did this to advise the staff that he wanted to be dressed. Although Mr. Harris denied that this was normal behaviour for Mr. M., from the evidence of the rest of the staff it does appear Mr. M. commonly ripped off his night attire, especially if it had been torn or was wet. In any event Mrs. Renoit testified that when Mr. M. threw his pyjama bottoms into the office, Mr. Harris, without saying anything to Mr. M. or to her, simply reached for the aversive conditioner and the water bottle. Mr. M., apparently aware of the impending treatment, picked up his pyjamas and ran back into the dorm to hits bed. Mrs. Benoit stated that havinp never actually seen the aversive conditioner used on a patient (Mr. M. beinq the only one on the ward to whom it was to be applied) decided to follow Mr. Harris out to the dorm to witness its use and to see if she could provide any assistance to Mr. Harris should that prove necessary. She claimed that she stopped some ten feet from Mr. M.'s bed where she ,;;<. saw Mr; 'M. trying, unsuccessfully to pull up his pyjama bottoms. Mr. M., accordinq to her, was standing on the east side of the bed, near the north end and Mr. Harris was directly behind him. Accordinq to her evidence Mr. Harris said "No M.", squirted him on the back with the water and applied the aversive conditioner to his rectal area for,what appeared to be about eight seconds as he bent over to pick up his pyjama bottoms. She stated Mr. M. emitted a violent scream, stumbled to the end of the bed, where the same sequence of events repeated itself a second time and indeed again a third time when Mr. M. stumbled back up the other side of the bed. Mrs. Reno~it testified that on both these latter occasions Mr. M. was again futilely trying to pull up his pyjama bottoms and., that she neither heard Mr. Harris speak to him nor saw him, anoly the squirt of water prior to giving Mr. M. the shock. She 9. estimated that the second of these shocks lasted'about three seconds, the third about five seconds and that in both instances the aversive,- .conditioner..was applied to the patient's rectal area as he was bent over, struggling to pull up his pyjamas. Mrs. Benoit testified that following the third application of the conditioner, the patient was able to finally get his pyjama bottoms on and that Mr. Harris then ordered him to stand in the corner of the north west corner of the dorm. She claimed that Mr. M. ran over to the corner with Mr. Harris chasing behind him. From her vantage point, and from which she did not move, throughout the eight to ten minutes over which this incident transpired, she was only able to see the upper half of Mr. M. and Mr. Harris because a partition which juts out into the dorm partially obstructed-her view. However, according to her evidence shortly after Mr. M. and Mr. Harris reached the corner she heard the.patient scream again and throw his hands up into the air. After several more moments, Mrs. Renoit stated that Mr. Harris walked away and that at that point she returned to the office. According to her recollection, Mr. Harris folioned her into the office and while appearing outwardly calm, stated to her, "One thing about it, M. sure doesn't like it up the ass does he?" Mrs. Benoit stated that at that time, being shocked and sickened by what she had witnessed, she simply signed her report and left the office. She advised the Board that she was so upset by what she had seen that she did not in fact sleep the rest of the day, discussed the matter a day or so later with another Residential Counsellor and ultimately advised her supervisor Mr. Neville of what she had seen on June 9 when the latter returned from his vacation. The evidence of Mr. McGorman, while in part corroborating that .c- .’ 10. i given by Mrs. Benoit, actually was directed more to the blast incident in the corner rather than to the sequence of events R-s. Benoit-had witnessed in the office and at the patient's bed. Accordinq to his : evidence he was in the clothing room', located squth of the staff office at approximately 7:00 a.m. and was sorting the patients' clothing when he heard a loud scream coming from the ward. Although he was not certain whether he heard one long scream or a series of screams, he stated that when he heard the screamin.g he isnnediately ran into the ward to determine what the commotionwas all about. Although he must have run right past Mrs. Penoit he could not specifically recall having actually seen her' I although she previously testified that she had caught a glimpse of him running up behind her. In any event, Mr. McGorman stated that he ran up into the ward and stopped some thirty feet from the corner where Mr. Harris and Mr. M. were standing and saw Mr. M. standing in the corner, holding onto his pyjama bottoms, facing Mr. Harris. He testified that from his vantage point it appeared that Mr. Harris-was directing Mr. M. to face the corner and that as the latter did so his pyjama bottoms aoain fell to the floor. He stated that as Mr. M. bent to pick up the pyjamas he witnessed Mr. Harris apply the conditioner between Mr. M.'s c buttocks for something between five and seven seconds. He stated that shortly afterthe application of the shock and a$,fter Mr. M. had stood in the ,corner Mr. H. turned and walked by him apparently heading for the office. Mr. McGorman who also testified that 'he was shocked and appalled by what he had witnessed testified that neither Mr. Harris nor he spoke to each other at this point. Instead, after Mr. Harris left Mr. M. to return to the office, Mr. McGormanstated that he watched Mr. M. run to his bed and cover himself with the bedding. Mr. McGorman stated that when he approached.Mr. M. to see if he could in any way assist him, the 11. latter cowered under the bedding and indeed almost fell out of his bed. Accordingly Mr. McGorman stated that he left Mr. M. in his bed, returned to the clothing room to finish preparing the bundles of clothing for the patients who were at this point beginning to arise. From his evidence and indeed from Mrs. Benoit'.s and Harris's as well, it appears this 'entire incident lasted some eight to ten minutes commencing at about __-, 7:20 a.m. Although he continued to work with Mr. Harris for the rest of that shift according to his evidence, which was confirmed by Mr. Harris, nothing was said between them as to the incident described above. z. Rather,at the end of the day Mr. M&n-man returned home and discussed the matter with his mother and ultimately came to the conclusion that he too was under an obligation to report what he had seen.to Mr. Neville when the latter returned from vacation. There is no dispute, from the evidence, that he did so on June 10, 1975. Finally it should be noted that between~the date of .the'-alleged inci‘d&t and when he reported it to Mr. Neville, Mr. McGorman testified that he did approach the grievor on one occasion and said to him "Tom, the other day about you and Mr. M . . . ' butMr. Harris simply walked away. The grievor's evidence with respect to the events which transpired between 7:20 - 7:30 a.m. on June 1, 1975 differs on almost all of the material facts testified to by Mrs. Benoit and Mr. McGorman. He confirmed that he arrived at the office at approximately 7:OO a.m. and that he first read the ward report and was in the process of preparing,the residents' medication over by the.refrigerator when the patient Mr. M. appeared at .,~ the office. He claimed however that in addition to throwing his night gown (and not his pyjama bottoms as the other two witnesses claimed) he Q actually spat in his direction and as well had banged the doors separating the ward from the office as he entered the office. Mr. Harris confirmed that at this time nothing was said between himself and Mrs. Benoit and that he simply picked up the conditioner and the water bottle and followed the patient back into the ward, who he testified had at this point run ;--out of the office again banging the doors on his way out. However and in contrast with Mrs. Benoit's evidence, he stated that he, and not Mr. M., picked up the night gown and took it with him as he followed Mr. 14. to the latter's bed. Further, he claimed-that as he came out into the ward he could see the grievor ripping all of the bedding, pillows and mattress off his bed and throwing them on to the floor. Indeed Wr. Harris clajmed that as he arrived at Mr. M.'s bed the latter was in the process of trying to actually tip over his bed. After subduing Mr. M., Mr. Harris stated that he said "Ho" to the patient three times, souirted him with water and applied a, shock to his wrist. At this time, accordi.np to Mr. Harris, he and the patient were standing approximately where Mrs. Benoit claimed she saw Mr. Harris apply the third shock. However, and again in sharp conflict with the evidence of the other two witnesses, Mr. Harris claimed that Mr. M. did,not scream or cry out when he applied the aversive conditioner to his .wrist. In any event, according to-Mr. Harris, after he had applied the shock to Mr. M., he became compliant and put on his night gown. He testified he then helped the patient fix up hisbed and ordered~him to stand in the corner described above. Mr. Harris claimed however that as Mr. E". ran to the corner he.againbegan to tear at his night gown. Further, F:r. Harris stated that when he ordered Mr. M. to face the .--e I corner the latter refused so that again, after telling him "No" three times and squirting him with water, he applied the aversive conditioner to the upper part of Mr. Mi's leg. Again Mr. Harris stated that Mr. M. made no audible sound when the conditioner was applied, that he complied with Mr. Harris's order after the treatment and that after standing in the corner for two minutes obeyed his request to go and get dressed. >'Mr. Harris confirmed that he saw Mr. McGorman and Mrs. Benoit at this time as he returned to the office but denied ever having made the statement attributed to him by Mrs. Benoit. Indeed he also denied Mr. McGorman ever raised the matter with him, but to the contrary claimed that the first occasion that'helearned of the view the Ministry took of these events was on July 7 when he was called before Mr. Wallace, the Unit Director; Mr. Kinzie, the Director of Training: and Mr. Hatton, the Personnel Manager. At this meeting, called apparently after Mr. Neville had completed his investigation of Mrs. Renoit's and Mr. McGorman's allegations, Mr. Harris was simply advised that he was alleged to have violated Personnel Directive 17. According, to Mr. Harris, and this was not denied ty the Ministry, he was simply asked whether he was guilty or not guilty and that the Hospital Administrators would neither advise him as to the specifics of the al- legations against him nor as to who had made the allegations. Indeed according to Mr. Neville Mr. Wallace had specifically advised him, after he had reported the results of his investigations to Mr. Wallace, that he was not to discuss anything with respect to these matters with the grievor. According to Mr. Harris, it was not until the next day, July 8, 1975, that he was again summoned before the three administrators and advised ‘. : 1 ~. 14. of the specific charges against himy~although it was not until the Ministry's hearing on July 24 that he first learned who his accusers were and was able to present his version of the events. The evidence which we have described above'crystallizes in a clear and sharp focus, the task confronting this Board. On the one hand we have the evidence of Mrs. Renoit and Mr. McGorman which depicts the qrievor, to use Firs. Benoit's words, as having completely lostall self-control and and as having intentionally harmed or abused Mr. M. It is we believe, from all of the,evidence and in particular Or. Higenbottam's, beyond dispute that if the grievor had applied the aversive conditioner in the manner they described, the pain to Mr. M. would have been excruciating. Given both the prolonged applications that they described and the very sensitive area to which it was applied, we believe that if true, the griever's conduct could only be characterized as abusive to, and intentionally harmful of,Mr. M.'s person. One simply could not characterize the application of the aversive conditioner in the manner they described as being simply an error in judgement. To the contrary, to apply the conditioner in response to a behaviour which, if Mrs. Renoit is to be believed, consisted merely of throwing his pyjama.bottoms 4~ *; and which did not, accordinq to the treatment order form of May 12, call for its use, for a period of time tie11 in excess of the time stipulated, to an area to which it was not to be applied, and on four different occasions within the space of ten minutes; can only be characterized, to use the griever's own words, as a "sadistic" and malicious assault. On the other hand we are faced with the griever's testimony which, if believed, portrays him applying the aversive conditioner ontwo occasions to parts of the body which fell within the purview of the treatment order, for an acceptable period of time and for reasons; in the first I 15. instance, for spitting which could be characterized as aggressive behaviour; and in the second, for refusing to comply with the order to face the wall, which did call for the use of the conditioner. If then one were to believe the prievor's version of the events, one would necessarily exculpate him of any wrongdoing and he~would manifestly ..~ have a proper and valid claim to be reinstated to his position with full compensation and other benefits. The difficulty of our task in selecting which of these versions more accurately portrays the events which actually'transpired on the morning of June I, 1975 is compounded by the description made by all of the witnesses as to Mr. Harris's character and past employment record. . Very simply, against that evidence, including that testified to by Mrs. Benoit and Mr. McGorman, the events they described as having transpired on June 1, 1975 are completely out of character with,the grievor's past record. That record depicts an employee who, over his thirteen years of service with this Ministry, has worked his way up through the ranks, enrolling in several in-house training programnes to up-grade his skills and whose overall employment record was-described by his superiors as presenting "an excellent model for all staff and admirable evidence of the. depth of (his) concern for the residents - - -'I. Mrs. Benoit herself described Mr. Harris as a ,man who cares about the patients and Mr. McGorman described him as a friend. Indeed so exemplary does his past record appear to be that Mr. Neville, his immediate superior, testified that when first advised of the alleged incident on June 9 and 10 he simply didn't believe Mr. Harris could have done such a thing Against that evidence and if'~we are to believe the testimony 16. of Mrs. Benoit and Mr. McGorman it is simply impossible for this Board to ascribe any motive or rationale for what the grievor is alleged to have done to Mr. M. It would be as we have noted; completely out of character with everything that was known abo'ut him by the staff who worked for and with him. Nevertheless, and acknowledging that we are at a loss to explain his behaviour, after a careful and thorough evaluation of the _.~ evidence we have come to the conclusion that Mr. Harris did in fact wilfully abuse Mr. M. on the morning of June 1, 1975 in the manner described by Mrs. Benoit and Mr. McGorman. Very,simply, and ultimately our award is founded on this conclusion, we are of the view that Mrs. Benoit and Mr. McGorman were honest and credible witnesses who were, to the best of their ability, telling the truth. Necessarily and following from that conclusion is our belief that Mr. Harris was not a credible witness and did not accurately describe to this Board the events that transpired on June.1, 1975. There are a number of reasons why we have come to this conclusion. In the first place, and most obviously, unlike the evidence of the grievor which was entirely self serving, there is simply nothing before this Board to challenqe the assertions of Mrs. Benoit and Mr. McGorman that the reason wh.y they initially reported and ultimately testified to xi the events of June 1, 1975 lay in their shock and horror at what they had seen and in the moral obligation.they felt compelled them-to so act. Although it is true that Personnel Directive 17 itself requires staff to report such incidents, that does not in any sense derogate from their testimony as to the effect the incident had on them personally and their motives for reporting what they saw. Both witnesses and in particular Mrs. Renoit obviously did not relish the role of.accuser into which they were cast and neither of them had any apparent ulterior motive in reportinqqthe events they described other than to ensure that 17. such abusive treatment of a resident never happened again. In shdrt, there being no evjdence before this Board and indeed there being no suggestion made that these two employees had any reason to fabricate what they had seen, we must accept their evidence on the material and relevant points as accurately describing what in fact occurred. Although it is true that certain portions of their evidence appears to-~conflict with that given by the other, for example as to whether any of the other residents were up and around the ward while these events took place, and although,.given their admitted shock and horror at what they saw, we find it difficult to believe that Mrs. Benoit could have actually retained the presence of mind to count the time the aversive conditioner was applied to Mr. M. Nevertheless, on the material and crucial portions of their evidence, their testimony was unshaken, entirely consistent with each other, and in all respects more believable than that proferred by the grievor.. That is, if as we have found, the grievor abused Mr. M. in the manner they described,~ we are not surprised that they were both so preoccupied with the two principal actors that they could not precisely recall what the other residents were doing or that they could not with precision.describe what the other of them did during this ten minute interval. These peripheral and tangential matters aside, their evidence is as noted both consistent with that given by the other and in all events morebelievable than that testified to by the qrievor. Thus Mrs. Benoit's‘testimony as to the three separate applications of the aversive conditioner to Mr. M.'s rectal area for however long was unshaken in cross-examination; ---That it elicited terrifying-screams from Mr. .M:, which was denied by the grievor, is entirely consistent with and provides the only logical reason for Mr. YcGorman's running out of the clothing room. Given the evidence . . 18. I of all of the other staff as to the effect the aversive conditioner had on them when they were briefly subjected to it in their training programme and even though Mr. McGorman could not recall the effect it had on Mr. M. when some time earlier he had.~had occasion to use that instrument, we think it inconceivable that the patient would not have screamed when he was subjected to it. Further we find it incredible __ that if, as Mr. Harris described, the patient had in fact Spat at him, torn his bed apart and attempted to tip it over, that he would have said nothing to either Mrs. Benoit as he initially left the office or to Mr. Worman during the remainder of their shift. Rather, and even excepting the comnent attributed to him by Mrs. Benoit, the fact ., nothing was said about the incident is, we believe, much..more consistent with everyone's awareness that the grievor had lost control and had succumbed to gross excesses than with his assertion that Mr. M. had displayed the kind.of destructive and aggressive behaviour that he at- tributed to him. In such a context,and if one assumes Mr.,Harris had ; maliciously abused Mr. M.,the ~failure of either Mr. McGorman or Mrs. Benoit to challenge a superior member of staff is readily understandable. If,to the contrary, Mr. M. had simply manifested one of his usual behaviours which called for the use of the aversive conditioner, one would have expected, at least when Mr. Harris returned to the office, some discussion of.that behaviour to have followed. There were, in addition, other portions of the grievor's evidence which caused us some concern. In the first place, when challenged as to the evidence he gave at the Ministry's hearing as to the reasons why he used the aversive conditioner on Mr. M., and the number.of times he used _. 19 it, which in all respects conflicted with the evidence he gave before this Board, he advised this Board that at the outset of the Ministry's hearing he informed the person designated by the Ministry to conduct the hearing, prior to the commencement of the hearing, that he was heavily sedated. Accordingly he.advised the Board that he could not recall what ,--he had said at the hearing. However, and sedated or not, Mr. Harris at no time denied having made the statements attributed to him at that earlier hearing and at no time suggested that the sedation he was under would have induced him to falsely testify as to circumstances and events which transpired on June 1. In the face of this prior and completely contradictory testimony, the credibility of Mr. Harris must remain severely undermined; further and as noted, the grievor was simply unable to attribute any ulterior motives to or offer any rationale explanation as to wh,y Mrs. Benoit and Mr. McGorman would come before this Board and testif.y to events which he claimed did&not happen. Indeed~, in denying the truth of what they described, Mr. Harris, who if he were to be believed was himself being grossly and maliciously maligned, appeared to be so unemotional, polite and detached in his denial, that one must f ., necessarily be suspect of that denial. Surely if Mr. Harris's testimony as to the events of June 1, 1975 accurately and truthfully described what actually.happened, and recognizing that his job and reputation stood in serious jeopardy, he would have pleaded his case with the intensity and emotion of a man who stood wrongly accused. Again the fact that he was able to confront their evidence in such a dispassionate, calm and polite manner must. of necessity increase the skepticism with which one considers his evidence. In addition there were a number of incidental and peripheral { matters in his evidence which caused this Board to consider his testimony 20. with susoicion. Thus, for example, while in his evid.ence .in chief he clearly and specifically described Mr. M. as slamming the door that led into the office when he first threw his pyjamas, when he was confronted in cross-examination with the fact that these doors were controlled by a spring which would make it impossible for them to slam, he changed his -I- story to state that he meant Mr. M. himself had physically banged the door rather than the door itself banging shut. Further, in his evidence in chief, Mr. Harris left the clear impression that he had initially used the shock on Mr. M. because of the totality of the latter's conduct, in- cluding throwing his night gown, spitting, tearing the bedding and the : 'mattress and attempting to turn over his bed. However when confronted by this Board as to,the operative reason why he used the aversive con- ditioner, he conceded that the act of spitting was the only behaviour manifested by Mr. M. for which the conditioner could properly be used. In sum and for all of these reasons we have preferred the evidence of Mrs. Benoit and Mr. McGorman to that of the grievor. Atthe very least we would find as a fact that Mr. Harris did on at least four different occasions within the space of ten minutes use the aversive conditioner in circumstances which did not call for its use; for a period of time that at the very least was three or four times in excess of that stipulated in the treatment order and to a part of the body which was expressly forbidden by that order. So described Mr. Harris's conduct can only be characterized as wilful patient abuse within the meaning ~of Personnel Directive 17, paragraph (M). It is simply impossible, if one accepts the evidence of Mr. McGorman and Mrs. Benoit as to the reasons for the manner in which, and the number of times the conditioner 21. was used, to characterize his behaviour as other than sadistic and cruel. As noted, he himself admitted that if proven, such would ba the only characterization possible for that kind of behaviour;. Against that finding, it is manifest that the Ministry had just and reasonable grounds on which to dismiss Mr. Harris. As we have _., written earlier of this Ministry's responsibility for the care and custody of its residents: This employer must of necessity take every precaution and be uncompromisingly vigilant to en.sure 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. Re - Hopcraft 4/75 at p.12. Very simply, standing alone, we believe thatthe grievor's actions ' are so extremely grave, and the interests of the Ministry and its residents so critically vital, that we cannot and shouldnot exercise our juris- diction under S. 18(3) of the Crown Employees Collective Bargaining Act and interfere with the sanction imposed. That conclusion is made man- " : - datory if, as we do, one bel.ieves that the grievor fabricated his evidence before this Board as to what actually transpired on June 1, 1975. By exhibiting such disregard for the nature of these proceedinas, Mr. Harris 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 Minjstry and faIthfully serve the needs and cares of its residents. We must acknowledge that the effect of our'conclusion, which we have reached without hesitation, is that for a few brief moments of . 22. aberrant behaviour, this man has destroyed thirteen years of dedicated and superior service. That in and of itself must be regarded as a tragic and senseless waste of his obvious talents. Given the serious- ness of his actions on June 1, and his totally unacceptable behaviour in fabricating his evidence before this t?oard, we have already noted that no other scenario is realistic, feasible or desirable. Nevertheless, ~. given 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 circum- stances 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 found to have occurred onJune 1, admitted those facts to this Roard and come before us conceding that he had lost self-control and had advised this Board as to circumstances or reasons which caused him to act in a way which was totally outof character with his previous thirteen years of employment at the hospital, we might well have as we did in an earlier case, come to the conclusion 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 aber- ration, 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 has effectively foreclosed such a response being articulated by this Before concluding thisaward, this Board must address itself to a 23. , number of peripheral and incidental matters which, though not material to the resolution of this grievance, caused us great concern; In the first place, as we have noted, much of the evidence adduced before this Board concerned the nature of the Ministry's organization and method of operation at the Cedar Springs facility and in particular the programming that was initiated for the patient Mr. M. As wel.1 as the detailed ev- _.~ ~idence submitted by the Ministry on these matters, Mr. Bruce, on behalf of the grievor, subjected that evidence to searching and minute cross- examination. Two points must be made with respect to that part of the proceedings. In the first place, we feel constrained to note, for the record, our concern with the manner and methods by which the super- vision and instruction of the staff were carried out on this ward par- ticul~arly, although not exclusively with respect to the use of the , 1 aversive conditioner. From Mr. Bruce's cross-examination of the Ministry's witnesses on these matters, althoug~h ultimately proving not to bematerial to the grievor's defense, it is apparent that the Ministry's efforts in this regard are less than adeauate. Thirty minutes of instruction on a device which most of the staff had never before seen, let alone used, strikes this Board as completely unacceptable. The in- adequacy of such instruction is compounded when one recalls that two members of the staff,~~,Mrs. Benoit and Mr. McGorman, were Hospital Attendants who presumably had little or no training as to approved methods of patient care and treatment generally, 1,et alone as to the use of this..~particular device. Indeed given their lack of experience and training one may well ask whether they should ever have teen permitted ~ to use the aversive conditioner. if however for whatever reason, such :. 24 . . . persons would be required to use such instruments surely they should have received much more careful~ and particular instruction as to its use than the other more experienced and qualified members of the staff. The inadequacy of such instruction manifested itself in the evidence in several important respects. For example, while Mr. Ball categorically stated he advised the staff only to apply the conditioner to the ex- --, tremities of Mr., M.'s limbs, all of the staff testified that Mr. Ball simply said to apply it to the arms and legs and indeed some said to the fleshy or fatty parts of the limbs. If the point of contact between the patient and the conditioner is as critical as Mr. Ball and others would have us believe, that fact should have been made perfectly clear to the staff. Further from the evidence of Messrs. Ball, and Neville and Dr. Higenbottam~ it is clear that the instructions given to staff as to whether the conditioner was to be used for certain behaviour, such as for spittinqi.or if the patient complied with the staff's instructions .after the squirt of water, was open to several interpretations which could easily have resulted in the use of the conditioner in circum- stances in which it was not supposed to be used. That the supervisory-,- staff simply was not terribly vigilant as to when and for what reasons the conditioner was actually used is manifest from evidence elicited from Dr. Higenbottam and Messrs. Ball and Neville in cross-examination as to the checks made by them of the log sheet that was intended to document the use of the conditioner. Further, and by way of added illustration, it became apparent during the course of the evidence that upon the release of Dr. Higenbottam's memorandum with respect to the use of the aversive conditioner on May 21, 1975 (Exhibit 5), staff could well have been confused by the inherent contradictions between 25. it and the treatment order of May 12, 1975. In addition, and given the unique and novel treatment that had been prescribed for this patient to ensure that the non-professional staff on the ward fully knew of and understood the terms'of the treatment and each of the changes made to it, it would obviously have been preferable to ensure that these various treatment rules were posted not only on the office bulletin board but on -"the patient's own chart as well. Finally, and to confirm what we regard as less than vigilant supervision of the staff, stands the evidence of Mrs. Benoit, a Hospital Attendant who has not been exposed to any I formal in-house training, that on the night in question she was advised by her supervisor that should anything untoward happen that evening she was'to look after it herself and not bother that supervisor. We are not, in expressing hour concern over what we believe to be serious gaps in the daily supervision of the staff'imputing any personal blame to any of the supervisory or.administrative personnel of this hospital. We simp?yare not possessed of any evidence that-would suggest that this inadequate control and training of the staff results from some dereliction of duty rather than being the result of a lack of available staff or supervisors. Nevertheless it should be noted that whatever the reason this Board is concerned,with these matters and that quite apart from the interests of the patients, which obviously is of paramount importance, such defi,~ciencies might well prove relevant in future cases involving the dismissal of employees who failed to comply with the expectations of their supervisors if those expectations were not properly communicated, adequately supervised,or contained' inherent contradictions. _ A second point that must be made from all of the evidence adduced / ,. 26 . as to the method of operations employed by this facility in general and with respect to Mr. M. in particular is that, as noted, none of this evidence ultimately seemed to be in dispute between the parties nor was it even relevant, given the grievor's position, to the determination of his grievance. Although our remarks might at first blush appear to be gratuitous, this Board has a legitimate and necessary interest in how cases are presented before it. Very simply by spending approx- imately one and a half days hearing this evidence, quite apart from involving everyone associated with the case including the members'of this Board in no small amount of personal inconvenience, this Board has been prevented from addressing itself to other urgent matters which are presently'before it. In. such circumstances such presentation of evidence is.unacceptable. This Board will in the future simply not tolerate the failure of the parties to meet with each other, during the grievan,ce,;:procedure or at the very least before the hearing,to precisely delineate the issues that divide them and conversely to concede those matters on which there is agreement or which are not determinative of the specific grievance with which they are concerned. For this Board to be able to discharge its statutory mandate, the parties should and must, candidly and openly advise each oth~er as to thematters'in dispute with resoect to any grievance so that the Board will not waste its time idly listening to matters about which the' parties are agreed or which are not relevant to the resolution of the grievance. +c Following from the above we also feel constrained to register our strong disapproval with the methods by which the Ministry carried out its investigation of this entire matter. As noted above, until the Ministry's own hearing some seven weeks after the event, the grievor was not afforded c any opportunity to present his side of the story nor necessarily did the 27. Ministry have an opportunity to weigh it in considering the approoriate action to be taken. Further Andy equally appalling to the Board was the description by various witnesses of Mr. Ball.and Mr. Neville in a public bar actually discussing the allegations that had been made against the griever in a manner in which their conversations could be'overheard by others in the tavern. Although there are no principles of natural -'~.justice which would.be applicable to such early investigations by the Ministry, commonsense and fairness expose the gross deficiencies in a procedure which includes discussing the allegations made against a member of its staff in a public house, forbidding the operative in- vestigator from discussing the matter with the person whose conduct is in issue and denying him, in the first instance, the reasons why the Ministry has felt obliged to investigate him. Most obviously it is only when the employer seeks within the confines of its own in- stitutions to determine at the first opportunity all of the relevant facts that one can ensure that potential grievances are resolved at the earliest staoes and that nonmember of staff Will be put through the~trauma of disciplinary or analogous proceedings. Although it is true that an employee under the present procedure will have an op- I portunity to present his or her case at the Hinistry's hearing,, only if the employer seeks, at the first available opportunity., to discover all of the relevant facts will possible injustices and prejudice that can result between the time the disciplinary action is taken and the hearing itself, be avoided. Only in such an environment will potential grievances be resolved before positions harden and in a manner which most expeditiously and fairly considers and resolves the reipective interests of both of the parties. Investigating complaints and grievances 29. In the result, and with reference to the particular qrievance before us, we must, following our finding that Mr. Harris did physically and intentionally abuse Vr. M., confirm the Ministry's discharge of him. Accordingly this grievance must be denied. Dated at Toronto this 19th day of December 1975 0. M. Beatty Chairman I concur G. K. Griffin Member '. I axlC"I P. A Sigurdson Member 1 &, ?~ ,i’ : - 28. in such a manner, in a spirit of honestly seeking to discover what actually transpired, in a spirit of joint endeavour by the parties, rather than in a discreet and furtive manner in which one builds one's case without disclosing anything until the eleventh hour, will also likely result in a more full, ,open and frank exchange between the parties. One wonders,for example, what Mr. Harris's response would have been had he been confronted, from the outset, with the allegations and evidence that the Ministry had been apprised of from other members of its staff. In such a process, seeking to resolve matters fairly and~expeditiously to all concerned, rather than locking one's self into and seeking to buttress a position which one feels constrained to defend, Mr. Harris might well have admitted to the error of his ways and apprised his superiors as to what induced-him to lose control on the day in question. In sum,.and in light of our comments, we trust that these and other parties will recognize the true value and purpose of the pre-arbitration process to be a joint process of consultation, .r<.t .~ disclosure and compromise rather than some procedure by which one secretly and furtively girds one's self with all of the armaments one t can master to defend what will have become rigid and intractable positions by the time the parties come, before this Board or even the Ministry's own hearing. Our concluding comments notwithstanding we do not wish to leave any impression that either Mrs. McCully or Mr. Bruce did not fully or adequately defend the interests of their respective clients. To the contrary, we would want to note for the record their thorough, pains- taking and exhaustive efforts on behalf of their clients. In no sense :.. ~. could their efforts be described as other than tireless, most able and. / complete. 1