HomeMy WebLinkAbout1980-0313.Dobler.81-06-30IN THE MATTER OF AN ARSITRATION
Under The
CROWN EMPLOYEES CDLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: S. Dobler
Sefore:
The Crown in Right of antario
ruir.isti-y of Mealti
.~
t=‘raf. K. ?. Swan Vice-Chairin*
!&Jr. A. IV. ,McCuaig Ilemk
Mr. J. K. Hayes Member
F,x the Grievor:
Mr. 5. Goudge
Cameron, Brewin d( Scott
For the Employer:
Mr. I. Freedman, Counsel
Ministry of Health
Hearings:
Nov. 18, Dec. 17, Dec. 18, 1980;
Feb. 13, 1981
Employee
Employer
I
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The griever had been employed, at the time of his dismissal
effective iMarch 12, 1980, by the [Ministry of Health at Kingston
Pyschiawic Hospital, with seniority dating from February 17, 1960. He was
discharged by letter dated April 16, 1980 (Exhibit 1) from the Hospital
Administrator, although he had been suspended without pay since March 12
pending investigation and final disposition. ~The reasons advanced for the
dismissal in that letter are as follows:
“...you were: (a) insubordinate in that you encouraged
and/or permitted two patients/residents of the Penrose
Division of Ongwanada HosPital to be in the upholstery
shop on or about 25 February 1980 connary to
instru&ions issued by me in my letter to you of 24 July
1979; (b) failed to report patient/resident abuse (of
which. ,you had knowledge) to a supervisor and (c)
mis&-eated a patient/resident of the P-e Division of
Ongwanada Hospital bye having sexual intercourse with
one [a female retarded adult outpatient, whom we shall
refer to as “L”] m or about 25 February 1980 in the
upholstery shop (Rockwood Building).”
Clearly, these are serious allegations of grave misconduct. The
conduct alleged in (c) in particular would be serious if alleged against
anyone, and in appropriate circumstances. could attract a criminal
prosecution. if proved to have been committed by an employee of a public
psychiatric hospital in daily contact with patients requiring care and
protection, it would undoubtedly be grounds ‘for immediate discharge.
Because of the seriousness of the conduct alleged, it is appropriate to begin
this award with the observation that, in our view, these allegations were
not proved in the course of the extended hearing which took place in
respect of this matter. Indeed, although there have been a number of
arbitration decisions to the effect that a higher standard of proof may be
necessary in cases where serious conduct of a criminal nature is alleged,
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(see, for example, this Board’s decisions in Bernardi, 102/79 (Prichard);
Pfeffer, 148/79 (Swinton); Tsialtas, 2X2/79 (Eberts); and Douglas, 108/80
(Swinton), all of which apply a standard of “clear and convincing proof”),
the evidence available to us in this case, despite the careful and thorough
presentation made by.:vlr. Freedman, could not even Satisfy the ordinary
civil standard of proof on a balance of probabilities. In these unusual
circumstances of serious and even shocking allegations remaining unproved,
this Board issued a short decision immediately, after the conclusion of the
arguments of the parties to the effect that, for reasons, to be given iater in
writing, the grievance was allowed and the grievor was to be remstated
forthwith in employment with full compensation for all pay lost due to the
discharge. This award is an account of the evidence presented and of our
reasons for that decision.
Some background may be oft assistance to an understanding of the
events from which this matter arises. The grievor was employed as an
upholsterer in the iMaintenance Department of Kingston Psychiatric
Hospital (K.P.H.), a provincial institution run by the Ministry of Health.
K.P.H. is contiguous with and shares some building space with Ongwanada
Hospital, a public hospital not owned by the LUinistry. Ongwanada’s centre
for mentally retarded adults is the Penrose Division, which includes the
Island View Workshop, where residents and out-patients from Penrose are
employed during normal working hours. Both Ongwanada and K.P.H. use
space in the Rockwood Building, which is less than 100 feet from the Island
View Workshop. In particular, Workshop employees eat meals in the
cafeteria upstairs in Rockwood, one floor above the upholstery shop where
the griever worked. To get ~to and from the~..cafeteria, residents and
patients regularly pass along the corridor on to, ,which the upholstery shop
.faces. Despite- the separate institutional organization, there is a close and
continuing contact between K.P.H. and Penrose, and the griever’s
employment’kept him at the point of that contact.’
The allegations against the griever already quoted from the letter
of dismissal amount, more particularly, to an accusation that he assisted an
adult retarded male.resident of Penrose, whom we shall call IM, to have
sexual intercourse with L, and that he himself subsequently had sexual
intercourse with her also. His alleged assistance to M was to act as
lookout during M’s sexual activity with L in a linen room just next to the
upholstery shop; he was then alleged to have taken L into the shop and to
have repeated the sexual contact himself. L is, as we have said, an adult
woman who is very seriously retarded; she was described as “low
functioning ” by one witness, and as capable of communicating only in
simple words and rudimentary sentences by another. She lives at home
with her parents and comes daily to work at Island View Workshop as an
out-patient.
The evidence and arguments advanced by the [Ministry in this case
presented the most difficult challenge imaginable to the fact-finding
function which arbitrators must perform. First, L herself was not called as
a witness and, although there was no real attempt to present evidence of
what she might have said to other people, we ruled early in the hearing
that we-would not admit hearsay evidence of her statements, if any. Given
the evidence we had heard about her mental capacity, we considered that
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hearsay evidence could not have been of any probative value wha?soever;
.Second, the only other eyewitness to whatever had happened was M, and he
was the only direct witness called by the Employer. i&l is a man in his 40’s
who has resided in hospitals and group homes since childhood. He was
described by witnesses as “much higher functioning” than L, a moderately
retarded person capable of working and caring for himself. He was at all
material times a resident of Ongwanada Hospital and employed at Island
View Workshop.
Mr. Goudge objected at the outset to &I being sworn or giving
testimony. i-le took the position that 3 was, as a resident of a centre for
retarded .adults, presumptively of diininished mental capacity, and urged
that we conduct a voir dire to determine his capacity to be sworn and to
give evidence. He proposed that all medical evidence as to his mental
capacity ought to be procured and reviewed by this Board, and that the
Union ought to be provided with time to seek its own medical opinions on
his ability to testify. Following a review of what little jurisprudence is to
be found on this issue, we concluded that the capacity of a retarded adult
to be sworn ought to be determined by an approach similar to that used in
respect of a child who is offered as a witness: see Reina v. Hawke (1974),
3 O.R. (Zd) 210, and see generally Lederman and Sopinka, The Law of
Evidence in Civil Cases (1974), pp. 450 - 456.
Consequently, we proceeded m conduct a voir dire during the --
course of which the Vice-Chairman and both counsel put questions to :?A to
determine whether he understood the nature of an oath and whether he
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appreciated the surcharge that the administration of an oath places on the
duty to tell the truth. Following this exercise, we were of the view that .M
should be sworn and was competent to give evidence in the imatter before
us, but that his mental capacity and the resultant difficulty for counsel in
effective examination and cross-examination could be the subject of
argument about his credibility. As it transpired, the essence of the entire
.case against the .grievor revolved around M’s credibility, and we shall
examine that issue at length. First, however, it seems appropriate to set
out in full the story which IM related during his testimony, supplemented as
necessary from the evidence given by other witnesses about the
surrounding circumstances. While we would ordinarily prefer to gloss over
the details of these allegations, they are necessary in this case to illustrate
the issues of credibility which we shall canvass later in this award.
The incidents alleged to have occurred are said to have taken
‘place on (Monday, February 25, 1980, but the estimate of the date had to
come from sources other than :?A, who thought he remembered a Monday in
September. The routine in Island View Workshop on that day began at 8:30
a.m. with the arrival of patients. ~The lunch break ran from 11:30 to I:00
p.m., and work ended for the day at 3:45 p.m. During the lunch break,
patients ate in shifts at the cafeteria in Rockwood; L was in the first s’hift
and ate at Jl:30, while ivi was in the second shift at 12 noon. After lunch,
the patients would be free to wander around the building until I:00 p.m.
The attendance sheets show that both L and M were at work that day and,
indeed, all that week.
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M’s story is that on that day, L had finished her iunch before ;him
and had left the cafeteria before he had eaten. When he had finished, he
also left and, at some unspecified piace on the upper floor, met L.
According to IM, L told him that “Joe wanted to talk m her”; it is common
ground that the griever’s nickname was “Joe”. She then went downstairs,
and M followed shortly after because he wanted “to see what was going to
go on”. For reasons which he could not elaborate, M said that he thought
that sexual activity wouid take place and, he says, he wanted m see what
would happen.
When he got downstairs, he found Joe and L near the linen room. 2.Y
L and Jce went inside, and Joe then returned and told !M. that the linen
room would be “a good place to do it” , that is, have sexual intercourse with
L. Joe also promised to watch and see if anyone was coming. M says that.
he then had sexual intercourse with L, but he took pains to minimize his
own fault. .He insisted that he did not want m do it, and only did so at
Joe’s urging. He also said that he did not undress but only unzipped his
trousers while L took down her slacks, that the sexual contact was very
brief and that he did not ejaculate.
Next, M testified, he went with L to the upholstery shop next
door. Here L removed her slacks and sat on a chair with her knees up while
Joe had intercourse with her, anal intercourse according to IM. He says
that she cried out twice that “it hurt” , and was in tears afterwards when
she came upstairs. He, M, had meanwhile left the upholstery shop while
the intercourse was proceeding, and in fact heard the second cry of pain
from the top of the stairs leading up from the shop.
During the course of his testimony, IM identified the griever as
“Joe”, and said that the griever had often asked. him to bring “girls”,
especially out-patients, down to the upholstery shop for sexual contact.’
He insisted that he had always refused, but said that the griever had
somehow got at least one other patient to go to the shop for sexual
intercourse, for which he paid her. He did not expiain how he knew about
this other incident, nor when it had happened. In contrast to this further
implication of the grievor, he said that he himself did not engage in such
behaviour, that he had never had sexual intercourse with the patients
before this incident, and that he had ‘only done ‘%this time because the
griever had asked him to.
Although this story has been presented in a straightforward way
for. the purpose of understanding the allegations made by ,&I, it is important
to observe that the Board did not receive it in such a clear form, and some
of the details were either given in a confused, erratic and contradictory
way, or were rendered doubtful by the evidence available about the
surrounding circumstances. The entirety of M’s testimony was vague and
confused, interspersed with long , ~rambling statements on tangential
matters not relevant to the issues under discussion. More particularly,
there were occasions when M directly conaadicted his own testimony. For
example, when cross-examined on his statement that L had told him that
Joe wanted to see her, he finally said that she had not used a name at all,
that she did not know Joe’s name, and that L had only been told Joe’s
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name later. He finally simply stopped answering questions about this and
said he didn’t know. His story about the sexual intercourse between L and
the griever was equally confused, and he put himself, was observer, in
different places as he retold the story. There is, on this point, an inherent
contradiction as well. If the door to the upholstery shop had been open, as
he stated at one point, the griever and L would have been exposed to
anyone who came along the.corridor. If it had been closed and if IM had
been at the top of the stairs. (where there is also a busy kitchen) as he
stated later, he would surely (as confirmed by other witnesses) have been
unable to hear any cry of pain from L.
There are also external contradictions which reduce the value of
M’s testimony. David Hagerman, an Occupational Instructor at Island View
Workshop, checked IM and L back into the Workshop on the day in question,
and recalls no indication that L had been crying or that she was upset. The
two patients were on time for work, and so arrived promptly at I:00 p.m.
In addition, Mr. Hagerman and other witnesses dispute M’s claim that this
was the only occasion on which he had sexual intercourse with another
patient. There were claims that LM had a reputaticn for promiscuity,
particularly with “low-functioning” female patients, but we think it best to
ignore this kind of generalized evidence based on hearsay. There are,
however, two separate eyewitness accounts of sexual involvement between
M and a female resident, in places less than completely secluded, on the
hospital property. We accept these accounts in preference to I&I’S own
protestations of chastity until the events in question, with the consequent
obvious effect on his own credibility.
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In addition to these internal and external contradictions, there is
also evidence that M’s story changed over time, once in’ respect of the
fundamental issue of the griever’s involvement, which we shall deal with at
length below, but also in respect of certain details. M’s alteration of his
statement that .L had told him that “Joe wanted to see her”, already
discussed above, was prompted by the assertion M cross-exami,n,ation that
he had told the story differently before. On another issue, how the sexual
contact between L and the griever had taken place, he refused to retreat
.fiom his sworn testimony. There is evidence, however, that the details of
this story had varied considerably over time. At a meeting convened on
March 12, 1980 M said that the intercourse had taken place on the floor of
the upholstery shop, and that the floor was bare at the time. On April 3,
1980, at a meeting chaired by Mr:R. 8. Thompson, Hospital Administrator,
the following exchange r&k place during the questioning of M by Mr. E. R.
Allardyce, Assistant Administrator:
Q- “Was it on the table,~beside the table?”
A. “On the floor.”
Q- “On the floor? What%, on the floor there, do you
redI what’s on the floor?”
A. “A blanket.”
Q- ‘IThere was a blanket on the floor? Did you see
anyone put that blanket on the floor?-.” . ._
A. “Was there when I came in.”
BefoR us, as recorded above, M described the sexual contact as taking
place with L sitting on a chair with her. knees drawn up. :
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Another conWadiction arises even in respect of .the actual room in
~.. which the griever is alleged to have had inter.course with L. In a statement .: :-;.:
to a residential counsellor on Xarch 7, 1580, (Exhibit 2) ivl had said that
both acts of intercourse took place in the linen room. As we have seen, all
of his subsequent statements, including his sworn testimony, placed the
alleged offence by the griever in the upholstery room.
All of this contradiction, however, pales in comparison with the
circumstances of CM’S first accusation of the griever as his accomphce and
co-offender. For reasons which are not clear, the first occasion on which
the incidents of February 25 came to the attention of the K.P.H.
managelnent was on Friday, February.29 when L reported to the Health
Unit at Penrose complaining that her breasts were sore, a condition which
she apparently related to sexual intercourse with M. There was also, it
seems, some indication that the sexual contact had not been entirely.
consensual. As a consequence, a committee chaired by Mr. James Kerr,
Co-ordinator of Residential Services at Ongwanada Hospital, was
established to investigate. On IMarch 3,.. 1980, L and iv1 were both
interviewed; L seems to have implicated ivi. c&l’s own testimony, on this
occasion was read to us verbatim from the committee’s report, and was as
follows:
“We went down to the basement, went into the dirty
linen t-corn and closed the door behind us. She took her
clothes down, not me. I did not do it in front, I did
it in the back. There was no one else there.”
There was no mention whatsoever on this occasion that the grievor played
any part in the events of February 25.
.
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The committee found that, the acts complained of had taken
place, and decided to punish ivl. Sexual relationships between patients are
not forbidden, but there is a conscious effort to ensure that they are
entirely consensual. For that reason, casual relationships between men at
a high developm,ental level and women at a low level are discouraged
because of the possibility of unfair advantage. In addition, stable
relationships are encouraged and promiscuity discouraged. in this case,
however, there was evidence that consent had not been present, and M was
accordingly given two weeks “loss of privileges”. In fact, this was “Group
2” punishment: he was confined to his ward in his pyjamas, and had to eat
his meals there. He was not, at first, allowed to go to work, although
eventuaily he was escorted to and from the Workshop.
iM made it clear to us that he.did not like this penalty. He liked
to w.ork, but was not allowed to. He had to eat on the ward with the
residents who rarely left the ward area, in some cases because their level
of functioning was just too low. He found their personal and eating habits
distasteful, and the entire experience caused him emotional distress even
at the time of the hearing. From Monday March 3 to Wednesday March 5,
!&I did~not get off the ward. On March 6, he was escorted to work. At ~.
noon, he was returned to the ward for lunch, escorted by Barry Slater, the
Assistant Supervisor of M’S ward. ,Mr. Slater tried to engage M in a
conversation about the incident. As a counseilor, he particularly wanted to
discuss the reasons for IV’S involvement with a low-functioning patient and
the apparent assault he had engaged in. In the course of the discussion, M
told him “I wasn’t in on it alone”, but refused to elaborate on the grounds I.
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that he tiuld get into trouble. Despite being pressed by Mr. Slater, who :
told him that “honesty is the best policy”, M did not go any further on this
occasion.
On the next day, however, when Mr. Slater again escorted M to
lunch, he asked him who else had been involved in the incident. After a
long pause, M said “Joe, the upholstery man.” He then continued to give an
account implicating the griever in sexual intercourse with L but locating
this act, as noted earlier, in the linen room (Exhibit 2).
Although, the. evidence is a little confused, M was apparently
interviewed twice by police officers at’around this time. Mr. Allardyce
recalls that the interviews were on March 5 and March7.s: Mr. Slater did
not learn of the March 5,interview until after the March 7 interview, which
he attended. No witnesses could give details in respect of the March 5
interview. Although Mi. Kerr had taken M to the interview, he did not
actually hear it and couldn’t be sure if anyone else had. As to the March 7
interview, however, Mr. Kerr, Mr. Slater and M all agree that the police
interview frightened M very badly. M distinctly recalls that the officers
had told him that he could go to penitentiary if it were repeated.
On the basis of the evidence available, it is impossible to be
certain that the police had been harsh with M on March 5 as on March 7;
we simply do not know what occurred on the earlier occasion. By the time
. of the March 7 police interview, however (2:30 p.m.); M had already
implicated the griever. But at least one hint exists that the griever had
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been frightened even by the March 5 police interview: ,in his statement to
Mr; Slater on March 7, before the police arrived that day, he had said that
‘He was afraid of going to ‘Penetang’ and wouldn’t do such again.” (Exhibit
~2). This obvious reference to the institution for the criminally insane at
Penetanguishene, fear of which may have been planted by the police on
March 5 or, may have been a part of M’s own knowledge, is clear evidence
that before M implicated the grievor, he was labouring under fears about
incarceration in very grim surroundings indeed.
Thus M came to his first meeting with Mr:Slater on March 7 after
spending three days on his ward in pyjamas, in the middle of his first day of
being escorted back for lunch with fellow residents whose manners he
deplored. He had been interviewed by the police in circumstances at best
intimidating and possibly even frightening, and had somehow concluded
that he was in jeopardy of “Penetang”. Mr. Slater denies offering any
inducements to M to make a clean breast of .the matter, and we do not
think that he did, but M himself dearly stated that he thought that he had
been told that “things would go better for him” if he told who else was
involved. To someone of M’s intelligence and personality, this could have
constituted an invitation to spread the blame for the incident around~and to
minimize his own culpability.
Some evidence of M’s character was adduced before us, in
particular to the effect that .he was generally known in Penrose as “The
Weasel” and that the nickname was intended to refer to his sneakiness and
his propensity to try to shift blame onto others. Whether or not such
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evidence would be admissible, we think it is entirely overshadowed by
the evidence. contradicting or qualifying M’s own testimony, which
reveals him to have been lying about. his .own sexual activity and to
have had good reason to try to shift the, blame in the present matter.
In our view, the evidence of general character is simply unnecessary
to our conclusion.
Finally, there is circumstantial evidence about the grievor’s
own movements on the day in question. The grievor distinctly recalls
that he had lunch that day with Mr. E. J. Kearney, a maintenance
mechanic at K.P.H. and a friend of the grievor’s for many years. He
insists that the specifically checked the date when he was first
accused, and knows, absolutely that he Andre Mr. Kearney were
together in the upholstery shop from 11:45 a.m. until just before
12:30 p.m. on that day. Mr. Kearney confirms the timing of their
customary lunch arra,ngements, but could not’be absolutely sure that
they had met that day. On the other hand, he says he had lunch there
at least three or four times per week, and he would only miss the
lunch in extraordinary circumstances.
On the other hand; Mr. Melville~ Clark, the griever’s
supervisor, gave evidence of an invariable practice which he is
~. certain took place on February 25. Since a prior disciplinary
incident, the griever had been required to report regularly to Mr.
Clark at starting and quitting time, and before or after breaks. Thus,
every day after lunch, the grievw would report to the foreman’s
office across the hall from the upholstery shop at 12:30 p.m. for
instructions, work requisitions and a brief discussion. This could have
taken from five to ten minutes, after which the griever would have
returned .to the upholstery shop. When this evidence is compared with ~1s
movements, it appears that IM left for lunch at.~about 12:OO noon, walked
the short distance to the cafeteria, ate, was approached by L and engaged
her in conversation and went downstairs-with her. By 1:00 p.m. they were
both aback at the Workshop in apparently calm condition. Even.if ,Mr. :
Kearney did not eat lunch ~with the grievor, there would only have been two
brief beriods, neither more than twenty minutes long, during one of which .
the alleged incidents could have occurred. \I
Mr. Freedman argued quite convincingly that we should not judge
the evidence or timing on the basis of’a prolonged dalliance, and we agree
that the two furtive acts of sexual contact described by M could have been
accomplished in the period of time available. The circumstantial evidence -
of timing does not, therefore, provide the grievor with an “alibi”. It does,
however, go to the whole issue of probability, and in our view reduces the
likelihood that M’s story is lrue. .
There remains, finally, only the evidence of the gri’evor himself to
be discussed. Mr. Dobler flatly denied the allegations against him, .and
spoke with considerable feeling about the personal cost to him of defending
himself against them. He could recall only one unpleasant encounter with
M, although he admitted he did not like him very much. He could offer no
substantial explanation why M should have singled him out to share the
blame for the alleged incident. Although credibility issues are difficult to
resolve, and can never be determined absolutely, we far prefer Mr. Dobler’s
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~evidence to that of M. It is internally consistent, and accords with the
objective evidence of surrounding circumstances; M’s, as we have
demonstrated above, manifestly lacks these qualities.
F6r the above reasons, we had no hesitation in allowing the
grievance, and ordering the griever’s reins&ement forthwith, with full
compensation for time lost due to the dismissal. Although we expect that
all issues of compensation are resolved, we shall remain seized for the
purpose of settling any issues which may remain.
The very special contribution of Mr. Freedman and Mr. Goudge,
who were of particular assistance to us in this matter, must be _’
acknowledged. Without their sensitivity and unfailing courteSy, this
difficult and harrowing case would have been nearly intractable. We
extend our thanks to them. ~..
DATED at Toronto this 30th day of June, .1981.
&
Prof. K. ,P. Swan Vice-Chairman
1 concur
Mr. A. M. McCuaig (Member
I concur
Mr. J. K. Hayes Member