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HomeMy WebLinkAbout1977-0135.Oldendorp.77-12-28135177 -__. ---~---- --. CROWN EMPLOYEES 416/964 6426 GRIEVANCE SETTLEMENT BOARU Suite 405 77'BZoor Street West TORONTO, Ortario MSS lM2 Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD (Mr. Augustus Oldendorp) OPSEU And The Crown in Right of Ontario (Ministry of Health) G. W. Adams - Chairman George Peckham - Member. H. E. Weisbach - Member For the Grievor: Mr. Richard Nabi, Ontario Public Service Employees Union For the Employer: ' Mr. I. Freedman, Counsel, Ministry of Health Hearing: December 13th, 1977 Suite 405 77 Bloor St. W. Toronto, Ontario. - 2 - This case involves the dismissal of an employee.and it was presented in the most unusual way. Instead of each party calling evidence with respect to the incident giving rise to the dismissal, the parties agreed to a very brief statement of facts. The statement reads: December 13, 1977 , Ministry of Health 1 )~ V. : Brockville Psychiatric Hospital OPSEU Grievance of: Augustus Oldendorp AGREED - UPON STATEMENT OF FACTS: 1. Griever was employed by Ministry for 11 years, since 1966, in Psychiatric 'Hospitals es an R.N.A. 2. This is the first time the Griever has been involved in a matter concerning patient abuse. 3. On September 20, 1977, at approximately 3:20 P.M. the Griever assaulted a patient, (Mr. "G".) by striking him twice on the face with his fist, and then striking the patient's head against the floor several times. 4. Neither the patient nor the Griever suffered injury as a result of the incident. 5. Griever was suspended Sept. 22, 1977, and dismissed Oct. 3, 1977. (Signed) . . . . . . . . . . . . . . . . . . . . I. Freedman (Signed) . . . . . . . . . . . . . . . . . . . . Richard Nabi -3- AS is immediately evident, the statement is silent with respect either to any facts giving rise to the assault'or to reasons that would explain why the grievor, after eleven years of service in a psychiatric hospital, would engage in such serious conduct. The Board raised the absence of such details with the parties and was advised the omission was deliberate. Counsel. for the employer took the position that, given the peculiar nature of the particular work setting involved in the instant case, such additional con- siderations should be irrelevant. The Board was advised that the employer took the position that it had to place the interests of patients who are undergoing quite delicate psychiatric,therapy or treatment, and who are very often defenseless to this kind of abuse, ahead of an employee's claim for a second chance to conform to the requirements of the work setting. Counsel emphasized that a psychiatric hospital could not be analogized to~an industrial or, commercial work place where in matters of discipline a corrective and rehabilitative philosoply is paramount. He reasoned that the employment relationship in a psychiatric hospital centred not on the production of inanimate objects but rather centered on human beings who are undergoing psychological and psychiatric treatment. Accordingly,it was submitted that because patient abuse is so fundamentally in opposition to the requirements of such a therapeutic setting the employer is justified in adopting a policy of automatic dismissal regardless of the surrounding circumstances and that this Board should so hold. In effect, said counsel, "the value of curing the patient should, in all cases, be more important than an individual's career". : -4- On behalf of the grievor, the union submitted that there is nothing in the statement of facts to suggest that the'grievor would engage in such conduct again or that he was beyond rehabilitation. It was also argued that there is nothing to indicate that the assault was premeditated and malicious. The union went on to submit that the Board should not adopt the absolute rule of dismissal propounded by the employer because the very;essenCe of this Board's function is to evaluate all of the varied considerations that inevitably pertain to an incident giving rise to discipline and to assess whether the penalty imposed was just and reasonable in the circumstances. It was suggested that ,the employer's policy discouraged employees from admitting the truth or from coming forward with information relating to patient abuse and, additionally., deprives a dismissed employee of the opportunity to learn from his or her mistake. It was the union's view that a penalty less severe than discharge would be a sufficient disciplinary response to achieve the employer's end while at the same time maintaining the employment of the grievor in this particular occupational role. This issue is a particularly perplexing one. We are confronted with three indisputably important interests that, in the context of patient abuse, are difficult to harmonize. One interest, emphasized by the employer, is the employer's responsibility to the patient who is undergoing delicate treatment and who~is completely under the control of the hospital staff. Patient abuse is clearly and unequivocally inconsistent with this responsibility and thus is clearly an interest worthy of emphasis. However the question r. -5- is whether the automatic dismissal of an employee guilty of patient abuse is a necessary response to achieve this end. A second, and closely related interest, is that of the patient as an individual. We agree that a psychiatric hospital is a special work setting and the Board must be most vigilant to protect the patient's interest when adjudicating in the penumbra cast by the standard "just cause". Patients are under the care and control of a hospital's staff and their welfare is dependent on fhe.professional conduct of the staff. Accordingly the decision making process of this Board must consider and accommodate this interest and the union does not dispute this fact. However just what approach to discipline would best achieve this important and accepted end is in dispute between the parties. Is any automatic dismissal rule the only way this interest can be protected ? The answer to. this question is not, in our opinion, self evident. The third interest is, of course, that of the employee or grievor. As the-union noted, a decision to uphold a dismissal for patient abuse is likely to bar the affected employee from employment in a psychiatric hospital for the rest of his or her working life. And in any given case the par- ticular circumstances may indicate that the employee is unlikely to engage in such conduct again and thus there would be little or no risk to the welfare of the patients in his or her reinstatement. But this Board must also be sensitive of the,need to deterother employees from engaging in patient abuse and in some circumstances the very presence of an employee who has engaged in patient abuse may disrupt / I ? -6- the therapy program of one or more patients. However the question remains whether the interest of the offending employee must always be put aside as the automatic dismissal rule requires. In beginning to answer this question we would note that this is not the first case to involve patient abuse - indeed it is not the first case to consider patient abuse in the context of a psychiatric hospital. In Harris and the Elinistry of Cormnunity and Social Services 7175 the grievor, an employee of some thirteen years' seniority with the employer, conducted a "sadistic and malicious assault" on a patient in a psychiatric hospital with an apparatus that gave an electric shock. In upholding the penalty of dismissal the'Board emphasized the interests of the Ministry and its residents and inserted the following paragraph found in Re Hopcraft 4/75, which is another case involving patient abuse but in which a dismissal was not upheld. In Hopcraft the Board, at page 12, wrote: This employer must of necessity take L every precaution and be uncompromisingly vigilant to ensure that the rights of those persons under its charge are at all times safeguarded and secure. Tl-Ls Ministfy in short cannot relax its vigilance in ensuring that the type of behaviour engaged in by this griever, for whatever reason is not repeated. A similar concern was expressed in Re Koch 2/75 where the penalty of dismissal for patient abuse in the context ~of a psychiatric hospital was upheld and the same quotation from Re Hopcraft was relied upon. ttowevera reading of all three cases demonstrates that the Board specifically refused to lay down the broad general rule requested by the employer in this case. In upholding the dismissals in Re Koch and Re Harris it is quite clear that the Board was in- fluenced by the grievers'. lack of candour in giving testimony. Indeed in each case this aspect of the grievors' testimony was a strong indication that they were not suited to continued employment in a sensitive work setting and that the Board could not be confident that a similar incident would not occur again. Moreover each incident was characterized as involving a "malicious" assault unaccompanied by significant mitigating factors. Thus in Re Koch the Board at page 9 made the following observation: In the result, although in other contexts this Board might well be prepared to allow en 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 entirely satisfied that the interests of the patients over whom this Ministry has responsibility will not be jeopardized or prejudiced. Put simply this Board ce~ not end will not subsume the interests end well being of those patients to the inteiests of en employee whose potential for re- habilitation this Board perceives to be problematical et best. The possibility of exercising its discretion in favour of a person in the grievor's positionwas put even more explicitly in Re Hopcraft~where the employer had promulgated a rule identical to the one proposed in this case, Indeed in that case the Board decided, in the final analysis, to reinstate the grievor. The rule read: N) Striking of Patients: No patient is to be~struck for any reason whatsoever; approved methods of necessary patient restraint :’ -a- specifically exclude striking and any other form of unnecessary agression. Any employee who strikes, slaps or kicks a patient will be dismissed. In commenting on this rule the Board wrote: Very simply, the language of paragraph (N) notwithstanding, we can not subscribe to the conclusion that any striking of a patient, in whatever circumstances, will on every occasion justify the ter- mination of a member of staff who transgresses its pro- visions. Such inflexible and rigid terms of employment simply fly in the face of and indeed subvert a myriad of basic principles, long known to the common law, which would, if applicable, result either in complete exoneration of the employee or in the _ amelioration of the seriousness of the incident. That is to say factors such as extreme pro- vocation or.necessary self defense may, in the appropriate circumstances, afford an employee an absolute defense or in all events ameliorate the seriousness of the misconduct so as to suspend the operation of all or part of Directive 17, paragraph N. Very simply, Directive 17 can not un- ilaterally foreclose to an employee defenses which would otherwise be available to him. Indeed Directive 17 itself explicitly recognises'the impropriety and unreasonableness of unilaterally promulgating a rigid and immutable set of rules of employment. Thus in the second paragraph of that Directive, support can be found for the type of distinction we believe to be relevant to the circumstances.on this case. The paragraph provides: -9-, It is important that penalties be appropriate and related to the gravity of the offence. NO set of instructions can cover every situation that may conceivably arise, nor do they allow for mitigeting circumstances which must be individually considered when infractions occur. Similarly, disregarding rules under particularly critical conditions may call for a nwre severe penalty than would be the case in another ~environment. Fair assessment of specific cases must be the basis on which staff problems are dealt with. However, it should be noted that dis- ,missal is mandatory in cases of proven patient abuse, and criminal offences relating to the employee's duties. By its terms, that paragYaph recognizes a difference between proven patient abuse, which we would characterize the griever's behaviour if we were to accept the employer's contention as to the griever's motivation in Striking Mr. P., and other instances of assaults on patients which might not be characterized as patient abuse, and which we would characterize the griever's be- haviour if we accept the reasons he gave for his conduct. Ifl short we believe that a "fair assessment of spe~cific cases" and a consideration of "mitigating ci.rcumstances" necessarily requires this Board to determine fin the case before us the precise reason or cause for the grievor'.s actions. Further even if we are wrong in our in- terpretation of Directive 17 as supporting the distinction we have drawn, we are of the view that S. lS(3) of The Crown Employees Collective Bargaining Act provides this Board with the requisite mandate to draw such dis- tinctions in determining the propriety of any specific penalty imposed. S. 18(3) provides this Board with an overriding and all-en- compassing mendate to assess each sanction imposed by the employer and to determine whether, in all of the circumstances, it is excessive. In making that determination in the circumstances of this case we believe the griever's state of mind, his wtivation, is critical in assessing the justness and .: - 10 - reasonableness of the penalty imposed. To put the nxztter somewhat more broadly, even though the employer may, by means of directives such as the one before us,, delineate certain forms of prohibited conduct and even though the rule itself may be reasonable in prohibiting the conduct in question, under S. 18/3) of the Act, such a directive cannot usurp or foreclose this Board from exercising its statutory mandate to determine whether the penalty prescribed was just and reasonable in the circumstances. To draw on an analogy in the private sector, we would refer the parties to a frequently cited decision of the board of arbitration in RE LUMBER 8 SAWMILL WORICERS'UNION LOCAL 2537, & KVF CO. Ltd. (1965) 16 L.A.C. 73, 85-86 (Robinson) where it was stated: I- Characteristics of Such Rule I A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: 1. It must not be inconsistent with the collective agreement. 2. It must not be unreasonable. 3. It must be'clear and unequivocal. 4. It must be brought to the attention of the employee affected before the company can act on it. ~5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge. 6. Such rule should have been consistently enforced by the company from the time it was introduced. IX - Effect of Such Rule re Discharge 1. If the breach of the rule is the foundation for the discharge or an employee such rule is not binding upon the board of arbitration dealing with the pievance, except to the extent that the action of the company in discharging the griever, finds accept- ance in the view of the arbitration board as to what is reasonable or just cause. 2. 3. - 11 - In other words, the rule itself cannot determine the issue facing an arbitration bodrd dealing with the question as to whether or not the discharge was for just cause because the very issue before such. a board may require it to pass upon the reasonableness of the rule or upon other factors which may affect the validity of the rule ,itself. The rights of the employees under the collective agreement cannot be impaired or diminished-by such a rule but only by agreement of the parties. In asserting this overriding jurisdiction of the Grievance Settlement Board, we do not want to leave any doubt as to the seriousness and gravity with which we.view the griewr's conduct however it is characterized, nor as to our general agreement with the purpose and thrust of Directive 17 and in particular paragraph (N) . Under either of the possible characterizations of the griever's behaviour, and even if one assumes his perception of an impending crisis to have been accurate, he has conducted himself in a manner which can only be characterized as intolerable, cannot be condoned and for which he must suffer some disciplinary sanction. This view was again emphasized in Re Harris 7/75. In that case, as noted, the Board refused to reinstate the grievor but after coming to that conclusion the Board went on to emphasize that the result need not have prevailed. In this regard the Board wrote: Nevertheless, given our comments in an earlier award, Re Maw l/75, we wish to advise the parties that the con- clusion 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 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 cirdum- stances or reasons which caused him to act in a way which was totally out of character with his previous thirteen years of employme& 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 pe Hoocraft Isupra)). 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 end 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 Board. 7 s - 12 - In our view and as the union suggested, a review of the circumstances surrounding the imposition of any discipline grieved is the very essence of this Board's function under both the collective agreement and Section 17(2)(c) of the~legislation. The policy supporting this mandate and obligation of the Board was eloquently expressed by Mr. Justice Laskin (as he then was) in R v drthurs, Ex parte Port Arthur Shipbuilding Co. (1967) 62 DLR (2d) 342 (Ont.CAJ where he wrote: The collective agreement leaves the extent of discipline (be it as light as a warning or as heavy as discharge) at large under the formula of "proper cause." By this I mean that there are no fixed consequences for specified types of misconduct . . ..The reason is simple: experience has shown that there must be a pragmatic and not a cut and dried; Medes and Persians approach to discipline. Employers and unions are, in my opinion, wise to leave room in collective agreement administration (which includes arbitration) for consideration of the worker as an individual, and not as simply part,of an indistinguishable mass. The formulae of "just cause" or "proper cause" or "reasonable cause" or "just and proper cause" which are found in collective agreements join to the pragmatic case by case approach a sensible individualization in the assessment of punishment for misconduct. The employer has not persuaded this Board that we should deviate from this pragmatic case by case approach. No expert evidence was adduced to establish that the very presence of the grievor would disrupt the health or progress of one or more of the patients and that this would be the case in all situations that may arise in the future. Moreover we are not persuaded that the general deterrence of other employees requires the severe penalty of dismissal in all cases. The Chairman expressed himself on this point in relation to . - 13 - the serious offense of theft in an industrial relations conthxt in the case Of me Phillips Cables Ltd. and Int'l Union of Electrical, Radio and Machine Workers, Local 510 (1974). 6 L.A.C. l2d) 35. In that case I noted that the general literature suggests that it is not so much the severity of punishment that deters non- conforming conduct aS much as the speed and certainty with which 'offenses are investigated and prosecuted..In this regard I noted: While this board of arbitration understands the rationale for such a broad standard of arbitral restraint, we cannot un- hesitatingly subscribe to it. General deterrence is an extremely important factor in these circumstances, but if it can be ob- tained short of discharging anemployee, and if substantial mitigating considerations are prekent, this board would prefer a lesser penalty. And we are not alone in so holding. A number of othei "honesty" cases, while admittedly in the minority, outline circumstances where a board of arbitration was prepared to substitute some lesser penalty for the initial discharge imposed, See Regina v. McCulloch et al Ex p. Dowty Equipment of Canada Ltd. (1969), CLLC 14,174 (0nt.H.C.); Re U.A.W., Local 200, and Ford Motor CO. Of Canada Ltd. (19701, 22 L.A.C. 35 (Weatherill); Re V.S.W., Local 3257 and The Steel Equipment Co. Ltd. (19641, 14 L.A.C. 356 (Reville); Re U.A.W., Local 127, and Ontario Steel Products Ltd. (1962), 13 L.A.C. 197) (Beardall); Re V.A.W., Local 28, and~C.C.M. Co. (19541, 5 L.A.C. 1883 (Anderson). In fact, in the Ontario Steel Products Ltd. case, supra, the chairman articulated an arbitral standard that is in marked contrast to the Evans Lumber holding. He wrote (at p.199): "If there is any reasonable doubt as to the adequacy of the punishment, I think that the griever should be given the benefit of such doubt". As well, this chairman has come across a recent Americans arbitration award in which a prominent arbitrator in that jurisdiction had occasion to review the problems of special and general deterrence in the falsification cases. See Cutler-Harmner Inc. (1972), 59 L.A. ,106l (Sembower). In reinstating an employee with 35 years' seniority who had falsely reported his production on 21 other occasions, he stated (at p. 1066): C...respondiny to the fear that reinstatement would lead to a demoralization of the incentive plan>. However, certainly this need not be the case at all. After all, this grievant has at this writing lost about nine months of employment with this Company, and a nine months suspension certainly is not incon- sequential. Besides, in the recent national debates over the death penalty which the U.S. Supreme Court took note of in l . ,i / -14- its recent decisions barring those penalties in many instances, it was pointed out generally t.\at the severity of a penalty seems to have little deterrent effect. Instead it is the swiftness and certainty of.thk punishment which discourages people from trying to commit such infractions. He went .on to.find that a deterrent effect had been.achieved, leaving the question of whether or not a valuable employee could be SalVaged. The Cutler-Hammer Inc. decision is therefore important becaus$ of the way it recognizes both the need for general deterrence in this area and the futility of excessive penalties in achieving that end. The dishonesty that confronts this board is certainly cause for diskssal. But the board must not fail to. consider whether it would Se just and reasonable in all the circumstances to substitute some other penalty -- particularly in light of the Cutler-Hammer.rationale and in light of any other mitigating circumstances that might exist. Accordingly, as a general matter - and this is the way it was put before us - we are not at all convinced the penalty of automatic dismissal is the only or even most effective way to achieve the employer's interests in general and specific deterrence in all cases. Therefore we decline to rule that both the patient's and employer's interests require, in every case, the termination of an employee who has engaged in patient abuse, However, because the parties presented this case in the way that they did, the Board is in a very difficult position with respect to a final and satisfactory disposition of the grievance. As our reasoning above explains, we feel obligated to consider the details surrounding the dismissal or discipline of an employee and yet the parties have not provided us, with this essential background. All we have to go on is the seniority of the employee which is substantial; the important fact that he has not engaged in such conduct before; and the fact that neither the patient nor the grievor suffered injury,as a .f *~ 0 - 15 - result of the incident. When the Board asked the employer's counsel for his position assuming the Board declined to adopt the principle of automatic dismissal, the Board was adv.ised that there was no alternative position and that if the employer's position was not upheld it would have to seek relief elsewhere. The legal onus of proof in discipline matters resides with the employer who has initiated the discipline and who, therefore; best ap- preciates the reasons for the disciplinary action taken. On the other hand, it is usually incumbent on the grievor and union to adduce evidence pertaining to factors that go,to the mitigation of the penalty imposed. Unfortunately the stipulation of facts is deficient in both regards. For example we have no evidence before us that permits us to characterize the assault as malicious and unprovoked as existed in the Koch and Harris cases. Similarly, we have little evidence that conveys the duration or intensity of the assault. As well, we have been deprived of an opportunity to observe the demeanour of the grievor and to hear, in his own words, the factors and surrounding circumstances that gave.rise to the incident or that at least form the background to the assault. Had this variety of evidence been adduced the dismissal might have been upheld, or if not upheld the Board would be in a position to consider whether a lengthy suspension should be imposed, Indeed we must remark that decision of the parties to proceed in the way they did seems, at least with hindsight, somewhat reckless. Given the earlier decisions of the Board, this employer could reasonably have anticipated the instant decision and should have, we suggest, conducted its case - 16 - accordingly. Similarly, the union must have realized the importance of the background considerations to the grievor's case and that the responsibility to adduce such evidence lies with it. On balance however, the Board has come to the conclusion that on the stipulated facts the grievor's conduct merited severe discipline but, without specific evidence pertaining to all. the surrounding circum- stances discussed above, we are not satisfied that dismissal was the only response open to the employer. The grievor is a long service employee who has never before engaged in such conduct and there is no evidence before us that his presence in the work place wi71 disrupt the treatment programme of any of the patients. On the other hand there is no evidence before us to support the union's request for a one month suspension. Indeed with more evidence we might have imposed a suspension of six months or more. However in the circumstances we direct that the grievor be immediately reinstated but without any compensation and without the accumulation of service credits for the period he has been absent from work. Dated at Toronto this 28th day of December 1977. G:W. Adams, Chairman (I concur) George Peckham; Member (I concur) H. E. Weisbach, Member