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HomeMy WebLinkAbout1979-0099.Foy.80-06-19Between: Before: For the Grievor: For the Employer: IN THE,MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE,SETTLEMENT BOARD Mr. Blake Foy And The Crown in Right of Ontario Ministry of Cotnnunity & Social Services Professor K. Swinton Vice-Chairman Mr. E. R. O'Kelly Member Mr. B. Switzman Member Mrs. L. Stevens, Grievance Officer Ontario Public Service Employees Union Mrs. R. McCully Counsel, Legal Branch Ministry of Community & Social Services Hearins April 28th, 1980 June 5th, 1980 June 13th, 1980 Toronto, Ontario - 2 - This is a case in which Blake Foy claims that he has been unjustly discharged. The grievor, at the time of discharge, was a Residential Counsellor 2 at Huronia Regional Centre in Orillia. i He had been employed at the Centre since April 19, 1971. The grounds for dfscharge are set out in a letter dated April 3,~1979 (Ex. 2, No. 7), and they include: leaving the facility during working hours without the supervisor's permission; assault on a resident; and or, eaving work early. The Union has argued that no assault occurred f it did occur, it was due to the grievor's alcohol dependency. The events leading up to the discharge occurredon January 5, 1979. Foy was at that time assigned to Pav 3, working with mildly - retarded adult male residents. He had transferred there in May of 1978, at his own request, from O-3, where the more violent and dangerous residents were located. On January 5 he was to work the 2:30 P.M.,to 11:00 P.M. shift. Foy gave evidence that he is an alcoholic. The medical nature of this disease will be discussed later in the award, at the time of discussing penalty. At this point, it is important.to note something of Fey's drinking history. Foy has been an alcoholic for many years and in the fall of 1973, following a car accident earlier in the year, he took a leave of absence to obtain treatment at the Royal Victoria Hospital in Barrie and the Homewood Mental Hea7th Centre in Guelph. The treatment succeeded, and he had a period of sobriety from November, 1973 until about May, 7978. During that period, he was active in Alcoholics Anonymous in Orillia and at times took treatment with a - 3 - I. psychiatrist, Dr. Finlayson. In May, 1978 he began to drink again, due to various pres- sures which he listed: financial worries because of the purchase of a new family home; marital strains because he and his wife were working opposite shifts at the Centre; no time to go to AA meetings because of babysitting commitments for his twochildren;'and.no money to hire sitters.' His wife and children left him in August, 1978 because of the drinking. Subsequently, he lost the house. On January 5, 1979, the grievor had been drinking heavily the night before. At this point he was drinking about 26'02s. each day. He felt shakey at work and felt that he had to get off the Ward. Therefore, about 2:50 P.M. he decided to take resident L. W. for a drive., They ended up at Fey's home, where Foy had something to drink, although~he does not know how‘much. .They were there about one hour. On returning to the Centre, Foy drove in by the South Gate. It was now approximately 4:30 P.M. Foy saw resident .K. S. following two girls, whom he thought might be students. K. S. has a reputation for bothering women - stepping on.their feet, pushing them. Foy said he was concerned about that, plus the fact that K. S; might be going out on the highway. He slowed the car and motioned to K. S. to returnto his cottage. K. s. ignored him, so he parked the car and got out. He asked K. S. to leave the girls alone and to return to his cottage. Again he was ignored. After several futile requests, he put his arm around K. S. to turn him towards the car. K. S. was very upset and pulled away. After that the grievor ,‘* i . - 4 - remembers nothing until he was sitting in the front seat of the car. He remembers pulling the passenger seat forwards to let K. S. into the~car. K. S. punched him in the side of the'face'hnd ran away,. Although the grievor does not remember the incident clearly, there were several other witnesses who gave evidence. The testimony is conflicting at times, so we must assess credibility and come to a conclusion as to'the facts on all of the evidence presented. One of the witnesses was Elmer Leigh, driver of an Orillfa Transporta- tion Bus. The day-shift at Huronia ends at 4:30 P.M., and Leigh was driving a busload of employees towards the South Gate at about 4:30.- '. He noticed a red compact car parked on the left-side of the road with a woman in the front passenger side. Behind the car were two men. One, a resident, was lying on the ground with his back against a snowbank. The second was standing over him and kicking. When the bus had almost reached the men, Leigh opened his window, saying to the passengers, "This should not be allowed in here." Some woman replied, "It could have been a Group 3 leader", so Leigh closed the window and started on. As he did, the resident stood up, and the second man hit him in the face with~his fist and the resident landed in the snowbank again. Then, as Leigh looked in his rearview mirror, he could see the two men struggling on the ground. He testified that there were no cars ahead of him. The evidence of some of the passengers on the bus is in some conflict with Mr. Leigh's. Margaret Carpenter, the Chief Occupational : Therapist, was sitting one third of the way back in the bus on the right side. She became aware that something was happening when the bus stopped. She described what she saw as "shadow boxing" and did not consider it a serious fight. She saw:no blows land, and % assumed that two residents were fighting because it did not seem to be a serious fight. Judith Beamish, a nurse, was two seats from the front on the right side. She saw K. S. in the snowbank as the bus approached, kicking his feet at a staff member. She believed that the second man was trying to.subdue K. S. because K. S. was kicking out and may have had his hands out. She mentioned nothing about blows land- ing. We were also presented with the.transcript of the evidence of Anita McIndoo from the criminal trial arising out of this incident. This was by agreement of both parties, since Ms. Mclndoo was unable to appear. McIndoo was seated right. behind the driver. She believed that Foy was trying to restrain K. S., who appeared to be backing away and then slipped on the snow. She did not see anyone swinging their arms to hit, although Foy was reaching out. She saw no blows or kicks by Foy. Mclndoo, Carpenter and Beamish all testified that there was traffic in front of the bus. Vera Reid was in the lineup of cars, somewhere after the bus. She saw the red car, with K. S. bent into the back seat. She then saw K. 5. punch the driver and run off. Thinking that he had hit a parent and surprised, because K. S. has not been aggressive, she phoned back from a nearby store to report the incident. I 5’ : / I - 6 - After the incident occurred, Foy took resident L. W. back to Pav 3. He testified that he was upset because he knew that an altercation had occurred but he was unable~ to piece it together. At about 4:50 P.M. his supervisor, Gord Watson, told him that 0 Cottage was short-staffed, and the Group 4 supervisor, Bridget Sovietta,had requested that Foy ego to help out. Foy complained that he had been there several times that week, but said that he would go after supper. He then went home and called back shortly to say that he was- ill and could not go to 0 Cottage. Meanwhile K. S. was discovered by another counsellor at about 5:00 in the Administration Building. He had a swollen and cut lip, which was later treated with ice packs. K,.S.. is non- verbal. When asked what had happened, he pointed to his lip and foot and said, "Kicked. Staff." On January 17, an effort was made to have K.S. identify who had assaulted him. He~was taken to Pav 3 and the staff called in..K..S; ~was asked if anyone had hit him and he pointed to Foy. His personal counsellor, Linette Beers, who was present at this time, testified that she thought K;:S.,m?ght be aware of what he was doing, but she was not sure that he knew,a he was pointing. Foy was subsequently suspended and discharged. He was con- victed of assault in the criminal courts and fined $350. -An appeal to the.County Court was dismissed, and there is presently an appeal to the Court of Appeal. ‘,’ ,. - 7 - There are three issues to be resolved here: whether the , grievor should be disciplined for breach of a rule by leaving : the facility with a resident without permission;,whether he assaulted resident K. S.; and,. if-either is proved, the proper penalty in light of the grievor's alcohol, dependency. The first issue can be disposed of relatively quickly. It was argued by the employer that there is a rule requiring permis- sion~ from a supervisor before a counsellor takes a resident away from the Centre. According to the evidence of Gord Watson, a Residential Counsellor 3 and Foy's supervisor at ~Pav 3, the rule . was not veryvigorously enforced at the time of the incident. While ,it was best to obtain such permission, frequently counsellors told other counsellors when they were going to town or just signed the Log.Book . Watson might tell them to obtain permission before doing so again, bu,t no other disciplinary action was taken. In light of this evidence, there can be no grounds for disciplinary action on the basis of the breach of the rule. The employer had not enforced the rule and had given employees~ no reason to believe that they would be subject to disciplinary action for its breach. It cannot now change its stance and begin to enforce the rule vigorously without first giving warning to the employee as to his wrongdoing. This is not to say that we would condone Fey's action in driving with a resident while under the influence of alcohol. If the employer had chosen to discipline him - 8 - for that conduct, the outcome would likely be very different. More serious is the assault charge and the proper conclusions to be drawn from the evidence. It must first be noted that whiie Foy has been convicted in a criminal court of assault, that court is a different forum and the conviction cannot determine our findings here. Counsel for management agreed with this at the hearing. Th%s Board must decide whether an assault occurred and the gravity thereof on the.basis.of th; evidence and argument presented before us.1 It should perhapsbe noted that we haves heard different witnesses, " including the grievor, who .dfd not testify at his trial because he. was physically unable to.do so due to the state of his alcoholism. - Essentially, we have a degree of conflict between the testi- mony of Leigh, the bus driver, and his passengers. Leigh is adamant that he saw a blow land and Foy kicking K. S. No one else saw this. Carpenter described the event as shadow-boxing, while Beamish and McIndoo seemed to regard this as a case of restraint by the grievor. - Our difficulties in deciding just what occurred, troublesome at best in a fast-moving event like an assault, are compounded by the grievor's inability to remember much of the incident. It should be noted that the divergence in testimony as to what occurred is between the bus driver and various-employees at the Centre. Those working at the Centre would be more familiar with techniques for handling patients and, in partjcular, methods of physical restraint. - 9 - What might appear to an outsider as unnecessary roughness or fight- ing might well be the struggle which is to be expected if a person is resisting restraint. Beamish said that she saw K. S. kickiig out, not Foy, which would indicate that Foy might be trying to restrain him. Furthermore, only Leigh saw a fist, with McIndoo seeing a "reaching out." On assessing all the evidence, we do not believe that Foy punched K. S. There is no reason for the passengers to fabricate their stories, as they are not Fey's friends. Furthermore, Leigh's evidence is not as trustworthy as it might first appear; He stated that there was no traffic, when others testified that there were - cars ahead, as the shift change would indicate.- Therefore, he must have been'somewhat distracted as he drove. In addition, he was the only one who saw a woman passenger. Furthermore, we are concerned about hiss perceptions as to what occurred because-of his unfamiliarity with restraint methods - the "kicking" by Foy might well have been slipping on the ice or avoidance of K.,S.'s kicks and the reaching out to restrain perceived as a blow. This does not vindicate Foy, however. K. S. was cut in the lip and upset by the incident. While the evidence is not altogether satisfactory, it seems to indicate that Foy may have been unnecessarily rough with K. S. in his use of restraint. Had he not been drinking at the time of the incident, he might well have used better judgment in handling the situation - both in deciding whether restraint was needed and in the application thereof. Carpenter's description Of - 10 - r 'shadow-boxing" indicates that there was some type of roughness or struggle going on, although not a serious fight. Had the grievor been in a clearer state of mind, there might not have : been such roughness, for K. S. was not known to be a violent or aggressive resident. Therefore, we find that the grievor did connnit an assault on K..S, by using more force than appears to have been required in the circumstances. By this conclusion, we do not wish to say that every time a residential counsellor decides that a resident mus~t be restrained, he or she must be wary least this Board or other adjudicators will second- .,.': .I. -~'; guess him or her and find that too much force was used. Their task is _ a difficult one, and as we said above, restraint requires the use -:. of some force. Here, however, the grievor-must bear some responsibility for the degree of force applied because of the self-induced interference with his judgment. His own mental and physical condition interfered with his ability to gauge the need for the ; '.: application of restraint on a~resident. Therefore, the grievor has technically committed assault on a resident, and the question. becomes whether the penalty of discharge should be upheld. By s.18(3) of The crown Employees 'Collective Bargainibg Act, S.O. 1972, C. 67, a~ amended, where the Board finds that a dismissal is excessive, "it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances." 'That discretion is restricted, however, by any amendment made in 1978 (s.o. 1978, c.791, which adds .I ; . -11 - s.18 (3a): (3a) where, in exercising its authority under subsection 3, the Grievance Settlement Board finds, that an employee who works in a facility, (a) ,ha.s applied force to a resident in the facility, except the minimum force neces- sary for self-defence oi the defence of another person or necessary to restrain the resident; or (b) has sexually solested a resident in the facility, the Grievance Settlement Board shall not provide for the employment of the employee in a position that involves direct responsibXity for or that provides an opportunity for contact with residents in a facility, but the.Board may provide for the employ- ment of the employee in' another substantially equivalent position. (-lb/ In subsection 3a, (a) "facility" means,~ (i) a children's mental ~health centre under The Children's Mental Health Senrices Act, 1978, (ii) a hospital under The Children‘s Mental Hospitals Act, (iii) a facility under The Developmental Services Act, 1974, (iv) The Ontario School for the Deaf, The Ontario School for the Blind or a school for the deaf or a school for the blind continued or established under section-12 of The Education Act, 1974, (v) a psychiatric facility under The Mental Health Act, (vi) a correctional institution under The Minis- try of Correctional Services Act,, 1978, ;, ;: -.c :: ;:r - 12,- (vii) an observation and detention home under The Provincial Courts Act, or (viii) a training school under The Training Schools ~. Act: and (b) yesldent" means a person who is an inmate, patient, pupil or resident in or is detained or cared for in a facility. 1978, c. 79, s. 1. Having found that the grievor applied force to a resident beyond the "min.irm~n force . ..necessary to restrain the resident", the Board cannot reinstate the grievor to a.job that involves contact with residents. The question is whether reinstatement should~be considered at all. Counsel for the employer argued against any interference with the penalty, emphasizing the gravity of assaults on a patient and arguing that drunkenness provides no excuse. The union, however, emphasized the grievor's alcohol dependency, arguing that while this did not excuse the grievor's conduct, it provided an explanation therefor. His rehabilitation therefrom indicated, as well, his susceptibility tom corrective discipline. Excessive use of force against a resident of a facility cannot be condoned. Even when there is no serious injury to the resident or vicious,conduct involved, the use of force against such vulnerable individuals is a very serious offence, and the employer is understand- ably concerned that any excessive use .of force, no matter how minor, should be prevented. Therefore, heavy penalties may follow from such conduct, often in the form of discharge but, at a minimum, transfer to a job away from contact with residents. _ :. . - 13 - In this case, while the decision is difficult; we are not prepared to uphold the discharge in light of the way in ~ which we have pictured the incident above and, more importantly, in light of.the evidence of Mr. Fey's alcoholism. It is important to clarify why his alcoholism is a factor in leading to this conclusion. Counsel for the employer referred to the criminal law concept that drunkenness is not an excuse in crimes of general intent like assault. This was also raised in an earlier decision of this Board, cmk and Ministry of h&our, 115/78 at pp.5-6. She argued that since there was a criminal conviction here, alcoholism cannot provide an excuse. We are not dealing, however, with the issue as to whether drunkenness (or alcoholism) excuses the individual from conduct : ,.:,: .;,_ ': like an assault. We have found that such an event occurred here and that it is blameworthy. What we are now trying to assess is whether the penalty of'discharge is apfiropriate for that conduct. In doing so, we are.now faced with industrial relations concerns: can the grievor learn from the penalty and perform acceptably; is there an unnecessary risk or cost to the employer if he is reinstated; wi:ll other employees.feel that this conduct is condoned if reinstatement occurs; will unnecessary hardship to the grievor occur? At this point of assessing penalty, an arbitration board must balance many competing interests - the employer's, the employee's, and, particularly,in the public sector, the general public interest, I’ .-. - 14 - here in safeguarding residents from abuse. In a case involving alcoholism, there are added complications, for the trauma of discharge can-seriously interfere with prospects of rehabilitation. At the same time, there is a limit as to how far an employer must 90 - how many chances he must give to an employee; how much expected performance, for which he pays, must be foregone; and how much risk must be borne, if an employee's job involves the safety of others. I. In this particular case, the~evidence was clear that Foy had a period of sobriety for five years and thenreturned to drink. : .- This gives cause for concern. Yet according to the evidence,of Gordon Patrick, specialist in alcohol addiction treatment for more than twenty years, alcoholism is a chronic disability and relapses are to be expected. It is crucial, then, to teach the individual and those around him (family and supervisors) how to recognize and manage a relapse. Even if this is true, it must be acknowledged that there comes a time when the employer need not be required to bear the cost and risk of a further relapse. That is.not the case here, for in this case the employer bears some responsibility for the events that occurred.. The Board received evidence from three of Fey's fellow workers that they knew of hisdrinking problem and were concerned about his behaviour and his failure to do his share of the work, Margaret Robinson, who worked the same shiftas the griever for close to one year, talked to her Group 3'leader, .,;. .i.; - 15 - Gord Watson, and two Group 4'5, Huey Doyle and Joseph Folz, about Fey's condition. She also reported Foy as absent without permission to a Group 5 once. Nothing resulted, even though she said~that Fey was frequently discussed by the staff. A Group 3 on another shift once discussed his own period of alcoholism with Foy, but nothing formal was done. A second employee, Sharon Haskim, also discussed the problem with Watson. Bridget Sovietta, the Group 4.leader, knew of Foy's alcohol Iproblem and was shocked at the decline in his performance. when he came to Pav 3. She had supervised him several years earlier and he had been a good employee. She discussed Foy with both ~Robinson: and Watson, as well as her supervisor, Gil Gourvoisier. Again, nothing happened. At the time of the investigation into the assault, she also discussed Fey's problem with the chairman of the investigating committee and the Assistant Administrator, Peter Malton. Fey's wife testified that she did not know how anyone could miss the' fact that he was drinking because of his personality and attitude changes. Similarly, Mr. Patrick, the counsellor, said that Fey's record - leave of absence in 1973, attitude change, absences - would clearly indicate a problem. In contrast Gord Watson testified that he had no knowledge of Foy's drinking problems. In light of the evidence outlined above, plus the: grievor's decline in performance , absenteeism, prolonged supper breaks and'absences during ihifts, we cannot believe Watson. The evidence . - 16.- _' indicates that Fey's drinking problemwas a serious one that was known, if not acknowledged, for months before this incident occurred. It is disturbing, then, that no one in supervision acted before this incident, which might well have been avoided. The employer has a responsibility for the welfare of the residents of a facility, and in this case the employer must bear some liability for what occurred. Evidence was lead with regard to the Government P,rogram on Alcoholism (Ex. 7). That prograrmne expressly recognizes the importance of the supervisor's role in detecting alcohol addiction problems among employees through observing and reporting decline in job performance. Then through "constructive coercion", employees with problems can be channelled into mandatory treatment programnes. In this case, there was a serious breakdown in the connnunication system. The evidence is clear that Fey's job performance was faulty (although it is disturbing that he had not been formally appraised since 1974 (Ex.~), when he received favourable ratings). Yet despite his poor performance and the complaints of employees and one Group 4 supervisor, nothing was done to discuss the perfor- mance or alcohol problem with Foy or to refer him for treatment. Gordon Patrick testified that this failure to report is a frequent problem - supervisors are unwilling to acknowledge an alcohol problem or to get a person in trouble. The result, however, is an intensification of 'the problem, as happened here, for the alcoholic himself is usually unable or unwilling to face up to the problem. Therefore, because of these - 17 L facts we feel that both Foy and his employer bear some responsibility for what has occurred here, and that should r be taken into account in assessing the penalty. In deciding that the grievor should be reinstated, we.have taken into consideration the evidence of Gordon Patrick, Foy's counsellor, as to his prognosis for rehabilitation. This practice of looking at prognosis has been approved by the Divisional Court in upholding the decision in cc& on judicial review. It would be useless- to reinstate the grievor if he were not prepared to take::treat.ment, for the employer has a right to expect adequate job performance from him. The whole purpose of the Government's mandatory prograasae is to try to save worthwhile employees. The grievor here had almost eight years service before the incident, and he was a good worker when not drinking. Patrick testified that prognosis for rehabilitation is good;if the grievor receives family support and a variety of counselling. His wife and mother are supportive. Foy has been dry since' December 1, 1979 and fs in/ the Salvation Army's Harbour Light prograreae. He has been accepted as a patient in the Donwoods Centre, when space becomes~available. Patrick has found him cooperative and sincere in his efforts. FOy himself feels that he is ready to return to work. While there is danger of relapse, we accept Patrick's Positive prognosis, and as a result we make the following order. It is somewhat complex and is, therefore, stated in point form. - 18 - 1. The.grievance is allowed and.the grievor is reinstated forthwith pursuant to 5. 18 (3~4 of the crown Employees 'collective Bargdining et, to a substantially equiVal$nt position. That position should be in a location outside the Orfllia area in an environment suitable to the grievor's rehabilitation. The Board has been asked to leave the determination'of this question to negotiation between the union and the employer and we do so. Should they be unable to agree on a suitable position within six months of the date of this award, we will retain jurisdiction to resolve their dispute. 2. .The grievor is reinstated on the condition that he continue to undergo treatment for alcoholism in the programne which Mr. Patrick is currently supervising or in a programme approved by the.government's. Employee Health Centre for a period of eighteen months~after this award and that he enter, as wefl, the Government Prograrene on Alcoholism. 3. Although the grievor is reinstated, he should not return to work until he has received medical clearance. Should he not be medically fit to return to work insnediately, he should have access to the relevant income protection plans. 4. In light of our conclusion that the employer is at least partly responsible for what has occurred, it is unfair t0 make the greivor bear full financial responsibility for this incident. The grievor would not have been physically avail- able for work from late January, 1979 to December 1, 1979 and the employer should not be liable for backpay for any of this period. However, the grievor has been dry for six . - 19 - months and might well have been able to work. Therefore, in light of the element of joint responsibility which we have discussed, the employee should receive three monfhs backpay. It should be noted that the period without backpay is equivalent to a heavy suspension, which indicates the gravity of the unnecessary use of force on a patient. The Board will retain jurisdiction to deal ,with problems arising out of the implementation of this award. Dated at Toronto, this 19th day of June, 1980. Y 02t7db+ Prof. K. Swinton Vice-Chairman I concur Mr. E. R. O'Kelly Member I concur Mr. B. Switzman Member IT