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HomeMy WebLinkAbout1983-0357.Cully.84-03-13IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: -- For the Grievor: For the Employer: Hearings: OPSEU (Fred Cully) Grievor - atid - The Crown in Right of Ontario (Ministry of Health) Employer P.M. Draper Vice Chairman F.D. Collom Member F.T. Collict Member D.W. DeMille Counsel Shone, Pelman Barristers and Solicitors J.P. Zarudny Counsel Crown Law Office Civil Ministry of the Attorney General' July 7, 1983 September 27, 1983 November 17, 1983 December 13, 1983 December 14, 1983 -2- DECISION The Grievor, Fred Cully, grieves that he has been unjustly dismissed and requests that the Board reinstate him to his 'former position or, in the alternative, provide for his employment in a substantially equivalent position. The Grievor ia a Registered Nursing Assistant (R.N.A.) whose classification was Psychiatric Nursing Assistant 2 and who was employed in the Psychiatric Retarded Evaluation Module (P.R.E.M.) unit of the Whitby Psychiatric Hospital at the time of his dismissal. He has been an R.N.A. since 1975, joined the public service in 1978 and was transferred to Whitby in 1979. His age is thirty-eight. The incident that led to the Grievor's dismissal took place on Saturday, March 5, 1983. He was working on the 3:00 p.m. to 11:30 p.m. shift together with three registered nurses (R.N.'s) and another R.N.A., all of them females. There were twenty-six patients in the unit, about three-quarters of them males. Shortly before 6:00 p.m. he became involved in first a verbal and then a physical exchange with a male patient whom we shall refer to as "G". Different stages of the incident were witnessed by other members of the P.R.E.M. unit staff. Diane Mann, R.N., testified that she and the Grievor were in the P.R.E.M. unit office on March 5, 1983, at about 5:45 p.m. when a knock came at the door to the hallway. The door is a split door with two panels of frosted glass in the top half. Recognizing "G", she told the Grievor I 1 I -3- who was at the door. The Grievor said he would "take care of it", opened the full door part way and asked "G" in a loud voice what he wanted. "G" said he wanted a cigarette and the Grievdr replied loudly that he had had his six o'clock cigarette. The request was made a second time and was again refused, the voices louder than before. "G" was partly inside the office and she saw his arms "punching out?, although she saw no physical contact with the Grievor. The Grievor took "G" by both arms and pushed him into the hallway, calling to her to "call for male staff." She thought the Grievor had "G" under control at that point. She closed the door and telephoned for help. As she hung up the telephone she heard the Grievor shout "Don't just stand there, get help." Annis Bishop, R.N.A., came into the office, was told that help had been summoned, and left. She (Mann) went into the hallway and saw the Grievor straddling "G" who was lying on his back on the floor. The Grievor gave two blows with his right fist to the left side of "G's" face and shouted "You son of a bitch, you son of a bitch, I'm going to charge you for this." Moving closer, she told the Grievor to "Stop it" but got no response. There was blood on the left side of "G's" face and he was not moving his arms or legs or speaking. She went back into the office to compose herself and when she returned to the hallway a male hospital staff member had arrived, "G" was in a geriatric chair (a type of restraint chair) and wrist restraints had been placed on him. His left eye was discoloured and swollen shut. Blood was coming from his left nostril and there was some on his shirt. The Grievor said a doctor should be called, which she did. Elaine Thrasher, R.N., testified that she was at supper in the P.R.E.M. unit staff kitchen on March 5, 1983, at about 6~00 p.m. when a patient came to the kitchen to 0, get her. As she approached the scene of the incident she could hear the sound of blows but at first could see nothing because "twelve or so" patients were already there. As she got closer she saw "G" on the floor and the Grievor on top of him with a knee on his neck. The Grievor was cursing about damage to $2,000 of dental work and she saw him punch "G': hard in the left eye which was already discoloured. "G" was gasping and struggling to breathe, his nose was bleeding and blood was runn~ing into his mouth and onto his shirt. He was subdued and not resisting. She shouted to the Grievor to stop, which he did. "G" was placed in a geriatric chair, an ice pack was placed on his left eye, cold compresses Were applied to his nose and the duty doctor was called. "G" said "Fred shouldn't have hit me" and kept asking for a cigarette which was refused him because of his nose bleed. Later in the P.R.E.M. office when she asked the Grievor if he was hurt he replied "After twenty minutes someone finally asked me." In October, 1952, she was involved in a dis- turbance "G" had created at the P.R.E.M. office and was chased by him when she ran away. He choked her, threw her to the floor and had to be pulled off by another nurse. She suffered a permanent injury to her neck and was off work for four months. Because of that attack "G" was sent -5- to the Penetang Mental Health Centre (a facility for the treatment of dangerous patients) for two months. Annis Bishop, R.N.A., testified that she was walking from the patients' kitchen to the staff kitchen rj on March 5, 1983, at about 6:00 p.m. when she heard a patient mention the Grievor and thought there might be a problem with "G". When she reached the hallway she saw the Grievor straddling "G"'s thighs. "G" was lying on his back on the floor. He was lying still and there was blood on his left cheek. The Grievor told her to get help, but she did not think he was in danger and would have stayed to help if she had been asked. She did not see any blows struck. She went to the P.R.E.M. office to telephone but Mann had already done so. .She returned to the staff kitchen to get the staff members who had been there, but they had left. When she returned to the scene of the incident "G" was being placed in a chair. Dr. Neil Maharaj is Director of the P.R.E.M. unit at Whitby Psychiatric Hospital. The hospital is a medium security institution and the unit is a "lock and key" unit. He testified that "G" suffers from acromegaly (a pituitary disorder resulting in excessive body growth) and tubular sclerosis causing mental retardation and epilepsy. He is a psychotic whose psychosis has been left untreated in favour of treatment of his epilepsy, although he is on both heavy anti-psychotic and anti-epileptic medication. He experiences both visual and auditory hallucinations and is largely divorced from his surroundings. His movements are -6- unsteady and often involuntary. If he becomes agitated his thought process becomes "garbled" and his speech slurred. He requires total custodial care. "G" is unpredictable but, _ because of his heavy medication program, his physical strength is greatly reduced and the chance of his becoming violent is "quite low". By 6:00 p.m. on March 5, 1983, he would have received all his medication for the day. There is a cigarette smoking program for patients which is prescribed by him (Dr. Maharaj) but is not part of their medical treatment. It is regulated in the interests of the health of the patient and the safety of the hospital popu- lation. "G" was on a program of one cigarette per hour, but this was not a hard and fast rule. The Grievor had been dealing with "G" for three land one-half years andshould have recognized that he was highly agitate.d at the time of the incident. The Grievor should either have ignored "G"'s presence at the office door or have given him a cigarette to calm him down. It was a matter for the Griever's personal judgement. The Grievor could also have called for help or for emergency medic~ation rather than risking a physical confrontation. It is not acceptable for one person to attempt to subdue an agitated patient. "G" suffered a haematoma around the left eye and swelling of the cheek bone from the incident. He had "G" transferred to Penetang shortly after the incident. The Grievor had been a good R.N.A. and he (Dr. Maharaj) had no complaints about his performance, but had noticed an increasing .tendency to loudness and anger. The Grievor had spoken of leaving the P.R.E.M. unit "to get a break" and he had reconnnended the griever's transfer. The Grievor testified that when on duty he was n responsible for the cigarette program for patients in the P.R.E.M. unit. "G" always wanted a cigarette before he was due to get one and often had to be refused. On March 5, 1983, he gave "G" his first after-supper cigarette at about 5:40 p.m. and shortly afterwards had to remind him that he had had his six o'clock ,cigarette early when he asked for another. When Mann told him that "G" was at the P.R.E.M. office door he told her to step aside and that he would speak to him. He opened the full door and asked "G" what he wanted. "G" asked for a cigarette and he told him he had already had it. "G" kept on asking and he kept on refusing. Without warning, he received a two-fisted punch to the mouth. He was punched again, was grabbed by the neck and his shirt was ripped. Re could not control "G" and called to Mann to get male help. He does not know how he and "G" got out of the office and onto the hallway floor. He punched "G" twice on the jaw while both were lying side by side on their backs. He then straddled "G"'s thighs, put his knee on his chest and struck him twice more, punching as hard as he could. Bishop came along and he asked her to get male help. He does not recall shouting at "G" or hearing anyone tell him to stop. "G" was not under control until the male staff member arrived to help. His (the Grievor's) injuries were diagnosed by his personal physician as a fractured right -8- hand, contusion to lip and teeth, right lumbar muscle strain and contusion to back. He also required dental treatment for sensitivity in teeth abutting his bridgework. In the course of his testimony, the Grievor admitted that he was free to exercise his own judgement about giving cigarettes to patients; that he should have realized how agitated "G" was; that he has been trained to avoid confrontations with agitated psychotic patients; that he knows that no one should try to subdue such a patient alone; and that punching a patient is not a proper form of restraint. He also admitted that he is aware of the Ministry's policy that patient abuse, defined as wilful injury or mistreatment of patient, is grounds for dismissal. Notwithstanding that no one of them witnessed the entire incident;thereis a compatibility in the evidence of Mann, Thrasher and Bishop that makes for a persuasive account of what occurred during the incident in question. Indeed, the Griever's own account is similar to.theirs in many respects. We do not see in the Grievor's actions an attempt to put into practice any accepted procedure for patient restraint. What is left for consideration is the Grievor's claim that he acted out of fear and was defending himself. In our opinion, even if it is assumed that the Grievor initially reacted in fear on being struck by "G", at some stage what might have been seen as self-defence became a punitive assault. We cannot accept that when the Grievor was sitting astride "G" with a knee on his chest, and "G" lying motionless on his back, the Grievor still believed - 9 - it was necessary to deliver two more blows "& hard as he could" in order to protect himself. In short, we find that the force applied to. "G" by the Grievor was more than the minimum necessary for self-defence. The evidence before us supports the conclusion that the Grievor precipitated an incident he should have avoided and later could have escaped, and that he quickly, if only momentarily, lost his self-control. There seems to us to be no other explanation for the Grievor's series of failures to exercise the judge- ment and to apply the training of an experienced R.N.A. In the result., we find that the Grievor's conduct on the occasion of the incident with "G" warranted disci- plinary action. There remains the question whether or not, in the circumstances, dismissal is an excessive penalty. Although we consider that the Grievor's conduct was sufficiently blameworthy to warrant an exemplary penalty, we have concluded that t!le penalty of dismissal is excessive. In restrospect, it appears that the Grievor should have been transferred out of the P.R.E.M. unit some time before the incident. It is likely that his frustration at being unable to leave the unit led to the deterioration in his attitude noted by Dr. Maharaj. In his four and one- half years of service with the Ministry, he was disciplined only once, a written reprimand in 1081 for "questionable behaviour while dealing with a patient." He had come to be highly regarded for his professional competence by Dr. Maharaj and the members of the P.R.E.M. unit staff with whom he worked. We do not have the evidence before us to enable us - 10 - to comment on the staffing of the P.R.E.M. unit. We cannot, however, fail to note that more effective intervention by unit staff members would almost certainly have de-escalated, if not prevented, the incident. We note, as well, that following the incident "G" was transferred from the P.R.E.M. unit to Penetang for a second time and remains there. Becauseof our finding that the Grievor applied more than the minimum force necessary to defend himself from "G", we are governed by the provisions of Section 19(4) of The Crown Employees Colle~ctive' Bargaining Act. Thus, even if we had been disposed to do so, we could not reinstate the Grievor to his former position. Moreover, we cannot provide for his employment in a position that, in the language of the section, involves direct responsibility for, or that provides an opportunity for contact with, residents (as defined) in a facility (as defined), We may, however, provide for his employment in "another substantially equivalent position." In the opinion of the Board it is just and reasonable in all the circumstances and it is accordingly ordered that: (1) The Grievor shall be deemed to have been suspended without compensation from the date of his removal from his former position to the date of this decision; and (2) The Employer shall promptly appoint the Grievor to a position substantially equivalent to the position from which he was removed, such appointment to be effective from the date of this decision. We shall retain jurisdiction in the matter for a period of three months from the date of this decision in order to entertain a request by either party to determine a sub- stantially equivalent position should the parties fail to agree on that question. DATED at Consecon, Ontario this 13th day of March , 1984. P.M. Draper F.D. Collom Member F.T. Collict Member