HomeMy WebLinkAbout1978-0007.Johnston.78-03-17I ‘i I’*
1.: ONTAR I CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
Between:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. Samuel Johnston (The Grievor)
And
The Crown in Right of Ontario
Ministry of Community and Social Services
(The Emp'loyer)
Before: Professor George W. Adams
Mr. E. J. Orsini
Mr. I. K. Levack
For the Grievor
Mr. Richard Nabi
Ontario Public Service Employees Un'ion,
1901 Yonge Street
Toronto, Ontario.
For the Employer
Mr. R. A. Marstori
Personnel Services Branch
Ministry of Community and Social Services
Hearing Suite 405,
77 Bloor St. W.
Toronto, Ontario
February 27th, 1978
Second Printing July “78
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In this case the grievor Samuel Johnston, contests his
dismissal from Huronia Regional Centre which is located in Orillia.
Huronia Regional Centre.is an institution operated by the Ministry :
of Coannunity and Social Services and it offers a~program to serve
all functioning levels of retardation. It seeks to develop an
integrated life style for its patients. It does this by basing its
program on the vocational, educational and leisure needs 'of its
patients and by integrating the patients into community based services ,~
according to their needs and abilities. Huronja employes 1400
persons to care for 1200 residents.
The grievor has been employed by the Ministry since May 4,
1972 and, at the time of his dismissal on September 29, 1977,
~was employed as residential counsellor. One expert witness described
this position as being in the nature of a"surrogate parent to the
patients. The residential counsellor works, closely with the patients,
actively encouraging them to develop acceptable standards of behaviour.
To qualify as a residential counsellor the 'employee must successfully
complete either,the prescribed Mental Retardation-Certificate' course offered
by Community Colleges or its equivalent and the grievor achieved this
status through study.and training while employed by the Ministry.
The incident giving rise to the grievor's dismissal occurred
on September 29, 1977. The grievor worked in Cottage 01 which is
a cottage where patients with the more.severe problems are housed
and treated. There is little or no dispute surrounding the details
of the incident. A female patient, twenty-nine years of age, was
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kneeling in a "punishment position" in the main corridor or hallway
of the cottage at approximately 12:15 p.m. While we have no direct
testimony on this~ point, she was apparently put in this position
by another counsellor for allegedly stealing food and witnesses testified
that this particular patient attracted a great deal of such "punishment".
Just prior to the incident involving the grievor, a number of
counsellors including the grievor were discussing the reasons for
the patient's punishment and the grievor was overheard to say,'N.ot~
again?". The evidence indicates that the grievor was a counsellor
responsible for the patient and their was no evidence of previous
conflict between them. Indeed the grievor testified that they had a
good relationship. However at approximately 12:15 p.m. as the grievor
walked pastthis. kneeling patient the raised his leg in a backward
motion causing the side of his foot to hit the patient's head near
her eye. On striking the patient in this way he did~not look back and
proceeded to the south wing of the cottage. Eye witnesses standing
nearby, David Pink and Cathy' Bronson, both residential counsellors,
testified that on being kicked the patient fell over and groaned or
yelled. When they examined her, the eye was swelling and becoming
discoloured. They then applied ice to the injury before~kir. Pink
returned the patient to the care of the grievor and pointed out the
patient's injury to him.
The grievor testified that it was only at this time he realized
he had injured the patient. He apologized to her and took
her to watch television. Both he and Mr. Pink testified that the
patient was not frightened of the grievor on being returned to his
care. The grievor told the Board that he had done:what he did as a
joke or as "horse-play" and.that he did not intend to injure the
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patient. He was not angry with the patient and did not mean to strike
her in the head with his foot.
He admitted.that following the incident he fabricated
a report describing how itbcc~urred in order to protect
himself. In this report he stated that the patient had fallen and
hurt herself. However following an investigation of the matter he
was dismissed by the employer. The letter dismissing him,was .overtk
signature~of the Deputy Minister and is dated November 3, 1977,. Tt
reads:
November 3, 1977
REGISTERED LETTER
Mr. Samuel James Johnston
Unit #60, 441 Barrie Road
Orillia, Ontario
Dear'?!r. Johnston:
Reference is made to the Hearing of October 13, 1977 concern-
ing allegations regarding resident abuse against<patient X3
on Thursday, September 29, 197;.
A review of the Hearing report and investigational material
supports that you were observed at approximately 12:15 p.m.
on September 29, 1977 kicking resident *atlent XT in a non-
defensive manner that was abusive, injurious and harrrful to
the resident.
Your representative speaking on your behalf, stated that "as
he was approaching her she made a mOve in his directionand
Mr. Johnston in a reflex action put up his foot andxpatient x>
continued into it". Not only did the witnesses indicate the
resident remained in her "punishment" position until kicked,
the accident and injury report formprepared by you stated she
"slipped while cleaning up wet and stool falling into bed
causing top right of eye to blacken".
When questioned by the Chairman why you filled the form out
with data different from the evidence of the two eye
witnesses, though at the hearing you didn't deny that the
blackening of her'eye was caused by contact with your foot
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you stated "at the time the accident occurred I put
down my chances, and there was no swelling at that
time. At that time she also apologized to me, for
what reason I don't know. I asked her if she Was.
okay and she was, and to get hack into her position.
Then she did come up to my end to clean up~~a mess
that was there. Then ,I took a look at her and her
eye was black. I said how did it occur. She said
she slipped, I said I wuld write that down, so I
put that down".
Credibility in your statements are in doubt when
neither witness recalled you communicating with
the resident: both stated that the swelling
occurred iimnediately which further contradicts
your statement. I can only conclude. that the
incident was a non-provoked and irrational assault
after which you showed no remorse or compassion~
whatsoever, but continued immediately down the
ball, neither enquiring about the resident's
condition nor even looking back to see if she was
injured.
Personnel Directive M.R.17 - Item "M" states "Harming
residents and other persons on facility property;
any employee wilfully causing harm to a resident,
visitor or any other person will be dismissed". Also,
Item "N" Abuse of residents states "any employee who
'abuses a resident by striking, slapping, kicking,
or by other means, will be dismissed". Approved
methods of management specifically exclude striking
and any other form of unnecessary aggression.
You were.aware of this policy having indicated by your
signed statement of May 12, 1975 that you had been given
a copy of it. Given these circumstances I consider
that you are unsuitable to be entrusted with the well
being and development of residents in your care. You
are therefore dismissed effective' November 3, 1977
from thq Ontario Public Service.
Should you believe that you had been unjustly dismissed,
you are entitled to file a grievance under Article 27.6.2
of the Collective Agreement provided you do,so within
twenty .(20) days of the date of dismissal.
Sincerely yours
(Signed)
Dcrothea Crittenden
L(Patient's name deleted by the Board).
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The grievor told the Board that throughout the employer's
investigation he maintained the story he had fabricated in the
initial report. He knew this was quite wrong but in his words
"one lie led 'to another". He was subsequently-charged with consnon
assault relating to the incident and was convicted of this criminal
offense. He was fined $200.00. A reading of the judgment pertaining
to that matter reveals 'he continued to lie about the incident
during the criminal proceedings. The grievor again explained that
having lied in the beginning he found it difficult to subsequently
tell the truth. Indeed, he testified, that he began to "believe"
his initial fabrication.
Some evidence was tendered by the employer of another incident
involving the grievor some three weeks before the kicking of
patient X. This evidence came from Miss Bronson who testified
that the grievor had slapped a patient whom she and another residential
counsellor were trying to subdue: It is unclear whether in her view.
he was trying to help them or was punishing the patient. Her
testimony was also unclear with respect to the severity of the
alleged slap. Miss Bronson told the Board that she reported the
matter to a supervisor. The grievor could not reca.11 the incident
and denied ever having been spoken to or disciplined.with respect
to the matter. The employer did not adduce any evidence with respect to the
issuance of formal discipline over this matter or in regard to any other
matter. Therefore,reviewing all the evidence with respect to the grievor's
employment history, the Board finds that it is dealing with an
employee who has an unblemished record. Whatever the exact nature
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of the alleged slapping incident, the employer took no action
suggesting that, if it took place, it was not considered serious. This
beings so .it is now too late to use it against the grievor in an attempt
to fortify the employer'< position in an entireiy.unrelated incident.
Accordingly this alleged incident sheds no light on either the facts before this
Board or the conclusion to be drawn from them.
The final aspect of evidence that needs to be reviewed is that
of Ms. Bernice Lovering. She was called by the employer to give her opinion
with respect to the wisdom of reinstating the grievor. Ms. Lovering's
formal education is as a public health nurse but she has extensive experience
in the field of mental health. The union did not challenge the propriety of
the evidence or the witness' qualifications to tender it. She~has played an
important role in establishing the Mental Retardation course required of
residential counsellors and in 1974 became the Director of the Ministry's
Training Branch. In 1975 and 1976 she wasp the Co-ordinator for the
Mental Retardation Services Division of the Ministry and in 1977 was
appointed the Administrator of an institution like Huronia located near
Toronto at Edgar.
She was asked what her reaction would be to a residential
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counsellor who, unprovoked, strikes a patient. She testified that the
situation was very "black and white". In her opinion the residential
counsellor would have "breached the trust of the retarded" and could never
be trusted again. It might aiso be noted she co.ncluded that
the application of !'punishment" to a patient without going through the
multi-disciplinary team too would be a breach of the patient's trust but
this breach of trust did not evoke the same strong response from her.
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This Board, in earlier cases dealing with patient abuse,
has indicated its concern for the interests of the patient and
Ms. Lovering's testimony'serves to emphasize thi's'particular viewpoint
once again. Indeed at one point in her testimony she asked the rhetorical
question, "Who was she there to rehabilitate, the patient or the employee?"
Another example of the health care system's conc,ern for the patient who
may not be able to protect himself is Directive 17 referred to in Ms.
Crittenden's letter of dismissal. Directive 17 was also introduced into
evidence and the.grievor signed a document certifying that on May 12,
1975 he had received a copy of it. In short,the directive
stipulates that dismissal is mandatory in cases of proven patient abuse.
This directive has been the subject of comment by this Board
in the past but, in the light of Ms. Lovering's testimony which, in
effect, was merely a viva vote recitation of the directive's stipulation,
we believe additional comment is.~necessary.
While a concern for the welfare of the patient is of the
utmost importance in cases of this kind, sight must not be lost
of the fact that this Ministry is also an employer and its employees
have a right to be dismissed for just and sufficient cause and no
less. The result is that the,employer and the.Board are obligated to
consider and accommodate the interests of employees where this
can be done without impairment of the crucial interests
of the patient. This also means that the mere recitation of "the
patient's interests~" is, 3n itself, an insufficient justification
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for the termination of an employee. If an employer is o,f the opinion
that the patient's interests can only be accommodated by an employee's'
dismissal, the employer is obligated to establish.this fact by direct
evidence and Ms. Lovering's testimony was quite inadequate if this was
its purpose. To be fair to the witness, she had no knowledge of the
circumstances surrounding this case; the severity of the injury; or of
the motive of the grievor in committing the act that he did. Thus she
was required to speak in a very general way, but with the result that
her opinion took on the same form as Directive 17 - an unsubstantiated
predisposition toward a specific kind of disciplinary response. Why must
the situation be "black and white"? Why can't.the employee ever be trusted
again? Doesn't this latter conclusion depend on the circumstances surround-
ing any incident of patient abuse?
Surely an unprovoked,assault with intent to maim is a very
different situation from an isolated altercation initiated by a patient
or from even the facts at hand. That each of these fact situations
must be dealt with in the same way because of the "interests of the
patients" is not self evident. Ms. Lovering knew none of the details
pertaining to this case; she did not have any knowledge of
patient X and of that patient',s. reaction to the incident; and she had
very little to say about the incidence of patient abuse generally
and its impact on a.therapeutic setting. In short then, we did not
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find her testimony very helpful in responding to the difficult problem
confronting this Board. Illustrative of this point was her statement
that while she was hot prepared to risk the interests of the patients
by continuing to employ someone like the grievor,although if this Board was
prepared to assume such responsibility, this was up to it. With all
due respect, this Board-and the-employer have obligations to both
employees and patients and a genuine effort must be made to ac-
commodate both interests. Only when this can't reasonably,be done
must the employee's interest give way. Surely~, at the very least,
the employer is obligated to assess the extent of risk associated
with an employee's continued employment and, in appropriate circum-
stances, to consider the viability of alternative placements on a permanent
or probationary basis-as well as other intermediate punitive measures. It is
not a matter of one general interest eclipsing another no matter what the
situation. Rather it is the delicate and painstaking analysis of what is'the
most appropriate result having regard to the particular situation at issue.
In the facts at hand the following considerations respond
to our concern for the future welfare of the patients. The grievor
has never engaged in patient abuse in the past and thus there is no
evidence suggesting a tendency or pattern in this direction. It was
an isolated event in his employment history and likely to remain one.
We find support for this conclusion in the very nature of.the incident.
We are satisfied that the grievor did not intend to hurt the patient
and that it was a case of ~"horseplay". Thus, stupid and senseless
as most "horseplay" is, we are not confronted.with an unprovoked
assault on a patient with~the intent to injure. If-the qrievor had
intended to injure the patient it is extremely unlikely he would have
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attempted it in the full view of his fellow employees. Indeed, even
the grievor's fellow employers did not see the incident as an in-
tentional act aimed athurting the patient because Mr. Pink returned
.her to the custody of the grievor minutes after the situation arose
and left her alone with him. As well there was evidence that the
patient herself was not frightened at the,prospect of being left alone
with the griever and that they subsequently watched television together.
Another consideration relating to the future welfare of the
patients is the punishment already experienced by the grievor. He has been
away from work since September 29, 1977 and now has a criminal record.
He also testified that he was very sorry that the incident occurred
and, at the hearing, promised the Board and the employer that he had
learned his lesson. Given these consequences of the grievor's act and
.his regret, we think he will he deterred from ever acting in such a foolhardy
way in the future. We also think ,it likely that the hardship he has
experienced will serve as a deterrence to others. All of these
considerations suggest to this Board that the interests of the patients
do not militate against the continued employment of the grievor.
Accordingyy, we must decide on more basic industrial relations principles
whether the dismissal should be uphold or whether the discharge is
too severe and a lesser penalty should be substituted.
Of favour to the grievor in this~determination is his
seniority which is not insignificant; the fact that he.has never been
disciplined before; the particular economic hardship that has befallen
him (he is married, with three children and tluronia is the largest
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employer in Orillia); and the fact that he was contrite and confessed
his wrongdoing at the hearing. Factors that go against his reinstatement
are the gravity of the offense; the fact that he fabricated the initial
accident report and that he- continued to lie until- the very hearing
before this Board; and the employer's legitimate interest against
shouldering any risk of further patient abuse no matter how remote.
It's obvious that the balancing of all of these various interests is
a most difficult and complex requirement but one that must be done.
The employer shoulders the burden of establishing that dismissal is
the most appropriate response in the circumstances and, where the
interests'of the patients permit, an employee should be given the
benefit of the doubt unless the previous unsuccessful application of
discipline suggests otherwise. In the facts at hand we have come to the
conclusion th,at the grievor should be given another chance.
We direct that he be immediately reinstated as a residential
counsellor on the receipt of this decision, but without back pay and without
the accrual of seniority for the period of his absence. We further direct
that his performance be closely monitored for the next year and any further
problem evidenced in this general area will result in his termination.
Dated at Toronto this 17th day of March 1978 A&p L'Il&
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G. W. Adams, Chairman
I concur
E. J. Orsini, Member
I concur
I. K. Levack, Member