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HomeMy WebLinkAbout1977-0056.Maniate.dateunknownCROi‘N EHPLOYEES 416/964 6426 GRIEVANCESETTLEMENT EOARD Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOY~EES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT-BOARD .' Mrs. Maribeth Maniate And Ministry of Health K. P. Swan Vice-Chairman A. Fortier Member 0. Anderson Member Mr. George Richards Representative Ontario Public Service Employees Union 1901 Yonge,Street Toronto, Ontario For the-Employer: Mr. I. Freedman, Counsel Ministry of Health Hearing: July 25, 1977 Suite 405 77 Bloor Street Wes Toronto, Ontario t 2. Following the completion of the hearing in this matter, the Board issued the following decision by telegram to the parties: RE: 56/77 MANIATE AND MINISTRY OF HEALTH FOR REASONS TO BE ISSUED SUBSEQUENTLY IN WRITING, MARIBETH MANIATE IS TO BE REINSTATED IN EMPLOYMENT WITH THE MINISTRY OF HEALTH EFFECTIVE MONDAY AUGUST 1, 1977 WITHOUT COMPENSATION FOR LOST EARNINGS. HER REINSTATEMENT IS AS A PROBATIONARY EMPLOYEE FOR A PERIOD OF SIX MONTHS FROM THE DATE OF REINSTATEMENT. K. P. Swan, Chairman The reasons for this decison follow. The grievor, Mrs. Maribeth Maniate, had been employed as a Nurse 2 General at Lakeshore Psychiatric Hospital since May 17, 1976. She was discharged from employment effective February 28, 19774 Consequently having less than one year's service, she was a probationary employee at the time of discharge. This Board has already asserted jurisdiction over the rejection of employees during the probationary period, in.certain circumstances, in me ayce and ‘Ministry of the Attorney General,~21/76, which adopted the principles laid down in Re'Erikson and Ministry of Correctional Services, 12/75 despite Article 30.6.1 of the collective agreement effective between the present parties at the material time. We were invited by Mr. Freedman, for the employer, at the beginning of the hearing, to re-consider the decision of the Board, differently constituted, in the JOYCE case, and both parties were conten,t to leav,e that re-consideration to be done on the basis of the arguments presented in JOYE. We have, therefore, reviewed the arguments.and the decision in JOYE, and we are satisfi~ed that the award on the preliminary objection in that case thoroughly and correctly states the law applicable to the present case as well. We dare, therefore, satis- fied to leave the issue of arbitrability to rest on the same grounds as those stated in Joyce, which we consider to be correct. In doing 3. so, we consider it inappropriate, as we note below, to comment further on the extent to which the~Board will re-consider its own decisions as to interpretation of the applicable statutes or as to construction of a.collective agreement in the future. One more matter of a preliminary nature must be considered.' Mr. Richards, for the union, raised. the equities of the grievor's position in light of the employer's invitation for us to reconsider Joyce and the implication that a decision affirming &yce might be the subject of an apRlication::by the employer,for judici.aTrevj:ew. The union raised the issue of res judicata, and some argument was exchanged on this subject. Finally, however, Mr. Freedman undertook that any deciston of this Board would be implemented immediately, what- ever proceedings might subsequently be initiated by the employer to question the. validity of this Board's interpretation of the law. We therefore do not propose here to discuss the issue of res judicata - as it,applies to previous determinations of the Board; that question can await a case in which it arises squarely and is thoroughly argued. As for the specific case of the present grievor, should she successfully complete her probationary period only to find that the basis on which she was reinstated has been subsequently struck down on judicial~ review, we do not consider that any real difficulties are presented. The Divisional Court exercises a discretionary jurisdiction on judicial review and may, if it determines that we are wrong in our adoption of the reasoning in Joyce, strike down the Board's decision by way of declaration without harming the position of the grievor who, relying upon our award, may well have proved to be a successful probationer and a valued permanent emnioyee. We are content to ~ leave such questions to the discretion and equitable jurisdiction of the court, should the present matter be referred thereto. 4. We therefore proceed to the merits of the present grievance, noting that ths criteria by which arbitrators have normally dealt with rejection of employees on probation were adopted in Erikson on pp. 20 - ~23 and quoted with approval in JCJYC~ at pp. 34 - 37. The proper standard of review set out in those two statements may be summarized in two basic statements. First, a probationary employee is entitled to a fair and proper assessment, which requirement assumes that a sufficient period of time will be allowed to demonstrate his or her proficiency and capabi- lity; that the duties and responsibilities of~the position have been clearly articul~ated to him or her;that reasonable standards of behaviour and performances are expected of the employee; that progress is systematically reviewed and that the employer has made reasonable efforts to coach, instruct and inform the employee throughout the probationary period. To this general sunnnary relating to cases of "release", . we might add that where the "release" is essentially punitive in nature, the same requirements of due process as those relating to discharge of a regular employee, if not the same standards. of conduct, would also apply. Second, the onus of demonstrating affirmatively that the requirements of due process have been met rests on the employer. The grievor graduated from the school of nursing at Wood- stock General Hospital in 1973, is a Registered Nurse, and has taken one year of post-diploma study in psychiatric nursing at Ryerson Institute. Upon completion of this program, she started work at Lakeshore. Her nursing experience upon starting work was limited to some part time work in nursing homes. From her hiring in May, 1976 until P 5. July, she was assigned to general nursing duties in the Rehabilita- tion Unit, Ward 3. She,was then transferred to the screening unit, doing admissions work, until November 1. At that time she was transferred to the Day-Care Assessment Rehabilitation Etobicoke Centre - or DARE; it was here that the difficulties which led to this grievance began. Until that time, the grievor apparently performed satisfactorily. She was only appraised once on the work she performed during this period, and (although the appraisal was not in evidence) the grievor's uncontradicted testimony is that the appraisal was fair, pointed out both strengths and weaknesses, and led her to believe that she was performing satisfactorily. At~DARE, however, things did not proceed smoothly. DARE is a rather experimental unit, designed to maintain and rehabilitate chronically ill psychiatric patients who are living land, in some cases, working in the community. All treatment, and some rehabilitative therapy in a vocational workshop, is on an outpatient basis. An important factor in the maintenance of patients is the medication program, which is designed to control psychosis in the patients and thus permit them to be rehabilitated in community life. The medications used are phenothiazines, including'Moditen or Medicate. Some patients take oral medica- tion once or more daily. Others receive long-acting injection drugs at one to three week-intervals. Some 200 or more clients are enrolled at the clinic, of whom about 110 are receiving Moditen by injection. An interuption in treatment might well lead to a recurrence of psychosis, and therefore a carefully administered system of appointments and checks is maintained to ensure that all outpatients are medicated as n~ecessary to avoid relapses. 6. The grievor spent her first partial day at DARE observing. On the second day, Heather Sheehan, an experienced registered nurse and Community Mental Health Nurse at DARE, indocrinated the grievor into the duties of "medication nurse", a function which was being fulfilled by Mrs. Sheehan onthat day and which, at the time, rotated among all of the nurses in that Centre. There is some apparent dis- pute as to precisely what was covered on that'occasion, and we have therefore reviewed the evidence carefully; our conclusions will be noted later. By the end of the second week in November, the grievor had been assigned exclusively to the "medication nurse" role. This assignment was made because she was pregnant, and would eventually go on pregnancy leave. Because her work would be interrupted, it was considered better not to assi~gn her a caseload of patients, since her departure would of necessity interrupt the continuity of the counsel- ling and guidance aspects of caseload work. In fact, however, the grievor was assigned a small caseload, mostly of patients who had been involved in the program for a long time. The caseload appears at some times to have been about half as large as that of other nurses. Toward the end of November, errors in the performance of the grievor's work began to surface. Because of the nature of the evidence of these errors, it is ,important to note the grievor's attendance record during the period in question. The earli~est errors brought to our attention were on November 24, 1976. On December 1, the grievor was hospitalized, and she did not return to work until December 13. She worked two 5-day weeks (Dec. 12 - 17 and 7. Dec. 20 - 24) and then went on a combination of holiday and vacation until January 3. She worked January 4 - 7 and January 10 - 14~, and was then ill until Januapy 30. She returned to work January 31, but at that time she was relieved of responsi- bility for medication, and nothing that occurs after that date is relevant to the issues before'us. There had‘clearly been some serious difficulties during this period. The "flag-sheet", a procedure for identifying patients who had not appeared for scheduled medication injections, had not been filled in on some occasions. On some other occasions, nurse- therapists had brought to the grievor's attention the failure of a patient to attend and the absence of any "flag-sheet" notation. As a consequence, there clearly was some apprehension among staff members for the welfare of their patients, and this apprehension was eventually communicated to management. As a result, a meeting of all nursing staff was held on January 14, 1977. This meeting was a part of the "peer supervision" system in force at DARE, in which group responsibility was exercised over the proper management of nursing functions in the clinic; The details of that meetjng aremostly vague, but some points are clear. First, this was the only formal occasion on which anyone had approached the grievor with criticisms of her work. Second, the grievor's state- ments on that occasion (as reported by other witnesses and by herself) indicate that some aspects of the details of her job were still unclear to her at that time. These two factors are both extremely important. We have already noted this Board's jurisprudence that requires systematic review and discussion of the progress of probationary employees by a. the employer. There was evidence that weekly staff meetings were. held regularly, and yet the grievor's performance did not arise at any one of them until the January 14 meeting. It is furthermore very .important to note that the January 14 meeting was not only the first, but the last, occasion on which the grievor's conduct was'reviewed. '~ She was removed from medication duties, suspended and discharged without ever having an opportunity to demonstrate that she had benefitted from the only counselling she had ever received. We note that there had been incidents when individual nurse-therapists had spoken'to her about specific cases. The only direct evidence we have of this, however, is Mrs. Sheehan's observation that whenever she had raised a specific case there had been an explanation of the occurrence which she found satisfactory. As to the second point, we do not doubt that Mrs. Sneehan's initial indoctrination was complete and comprehensive. We are, however, left in some doubt whether she and the grievor ever really understood each other on the importance.of the "flag-sheet" in reporting missed medication a~ppointments. It is also clear that .. the grievor had never been properly instructed in the somewhat unusual techniques used for ordering medications until after the January 14 meeting. Given the Board's standards for employer treatment of probationers.(mentioned above), including a require- ment thatall duties be thoroughly and clearly explained, we are not satisfied that the grievor was properly prepared~for the duties expected of her. We turn finally to the specific allegations of misconduct 9; on the grievor's part. Because of the general unrest about medication procedures, an audit of medication records was ordered by management, and was carried out by the Director of Nursing for the hospital, Mrs. Sheila Latimer. Mrs. Latimer's audit, dated March 14, 1977, was produced in evidence, (Exhibit 7) and she also testified as to its preparation- and expanded on its detail. It was based on a number of written reports from the DARE staff, and some of it is clearly hearsay evidence. Most of it,'however, is a compilation by Mrs. Latimer herself of clinic records, and is thus not objectionable as evidence. For the purposes of this case, we shall treat it all as evidence having cogency in law, and we are satisfied that it.is all true. We have analyzed, as best we can, tht events listed on the audit. Some of those relate directly to the ordering of medi- cations, and we have already indicated that we are not satisfied that,the grievor's indoctrination ln ordering procedures was complete until it was too late. In any event, one ordering err,or was held over from October 26, 1976,.before the grievor even arrived at DARE. Three Moditen injection appointments were not made immediately following admimstration of the,injections, as is required by the procedure. All of these incidents occurred on the same day, November 10; 1976, at a time when it is not entirely clear that the grievor had yet been placed entirely in charge of medic~ations, or had even done medication duty~ more than once or twice. No further mistakes .: .= ,. of this nature we&ever made.'.‘:"~ '.. Another series of errors related to the "pouring" of medications, 10. which was done the day previous to their administration. On one day, the grievor fainted atwork, and left for home afterwards, and may not have completed the pourings. On one other day, pourings were also incomplete, but the grievor was unable to explain this incident. In any event, all these errorsrelated to incomplete, not incorrect, preparation of dosages; they were certain to be corrected, and were, before administration on the following day. Leaving aside some minor complaints about the form of the griever's bookkeeping, and a few matters which we are unable to understand and whose significance was unexplained, all of the other incidents were failures to note a missed appointment on the flag sheets. The grievor missed flagging eleven times during the period, but what is particularly interesting is that other clinic ' employees also erred in.this way on three occasions during the grievor's absences. Indeed, another audit done by Mrs. Latimer for comparison purposes also showed six "flag errors" in July, 1976 - all by-experienced staff $fthe clinic. Based on all of this ~evidence, we have come to the conclusion that the gn~evor had made some consiaerable errors ana that, given the serious consequences which could have resulted, those errors merited some discipline. In a probationary employee, repeated errors in a function central to the duties required in the job may well be ample grounds, all o~ther things being equal, for rejection. As we have noted, however; we do not consider that the grievor was given a proper opportunity to prove, herself. 11. First, as we have said, her indocrination appears to have left something to be desired. Second, the counselling and review of her progress which probationers ought to be able to expect was woefully absent, and she was never allowed to profit from the one session in which her shortcomings were aired. Third, the errors which were ultimately the cause of her discharge were errors which were frighteningly common, even among those peers who ultimately confronted her with her shortcomings and led to her discharge. Finally, the grievor was clearly under considerable physical and emotional stress at this time, and was ill for long periods. In our view, therefore, discharge (ore "rejection", although we view this as clearly a disciplinary.matter) is too serious a response to the grievor's conduct. We have therefore ordered her reinstatement, but without compensation, and have re-established her probationary period as well.to ensure that the fair and adequate opportunity to which she is entitled to prove her competence is made available to her - and to her employer as well, who has a clear interest in the matter of~a reconstituted probation period. Although we would have considered the period from her discharge until her reinstatement an excessively long suspension under all the circumstances, we were informed that she was in any event unavailable for work (and ineligible for paid leave) for much of this period due to preg- nancy and related illness. The amount of time actually lost 12. appears to us to be, in general terms, a sufficient penalty for .the grievor's conduct and to bring home to her the seriousness of the events leading to this grievance. K. P. Swan I concur ~A. Fortier I concur D. Anderson