Loading...
HomeMy WebLinkAbout1983-0572.Cabon.85-06-26Between: OPSEU (Pierre Cabon) . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Grievor . and - The Crown in Right of Ontario, (Ministry of Correctional Services) I '~' Employer Before: R:J. Roberts Vice Chairman L. Robinson Member L: Foreman Member For the Griex: P. A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: P. A. Radley Staff Relations Officer Personnel Branch Ministry of Correcti-onal Services Hearings: April 17,1984 August 16, 1984 November 5, 1984 December 1984 7, 2. : In the present case, the grievor, who was a male Nurse at the Mimic0 Correctional Centre, was suspended for one day for allegedly' issuing a number of capsules of an antibiotic called Cloxacillin to an inmate without a Doctor's authorization. Through- out the grievance procedure and at arbitration, the grievor denied the allegation, and thereby raised a substantial issue of fact for the determination of the Board. For reasons which follow, the Board concludes that 'upon the evidence, the grievor did issue the capsules in question and that,.in the circumstances, a one-day suspension was well within the range of reasonable disciplinary responses. Accordingly, the grievance must be dismissed. On March 24, lgB3, the grievor and another Registered Nurse, Patricia Hoag, were working on the afternoon shift (from 3:00 p.m. to 11:OO p.m.1 in the Health Care Unit of the Mimic0 Correctional Centre. This Unit essentially is divided into three parts: first, there is an office area which included a doctor's office, a stor- age area, and an outer office that serves as a waiting room for inmates: Located next to this area, and separated from it by a steel door for security, is a Treatment Centre. In addition to sinks and counters for use in preparing medication for inmates, this area also-contains a medical storage room, where drugs and other medi- cations are kept under lock and key. Finally, immediately to the right of the Treatment Centre .is the sick bay, which contains a number of beds for inmates who are recuperating or who require some sort of bed treatment. Again, for purposes of security, the sick bay is separated from the Treatment Centre by a metal : door which always is kept locked. . 3. Around about B:OO p.m. on that day, the only person in the Health Care Unit was.the grievor. Ms. Hoag had left the Unit to begin the process of handing out the B:30 medications. This was a regular part of the routine, in which a Nurse accompanied by a Correctional Officer would make the rounds within the facility in order to administer medication which certain inmates required before bed time. While Ms. Hoag was away, the grievor busied himself with a number of duties around the Health Care Unit, in- cluding making out the Doctor's List for the following day. It was at about this time that Mr. B. Ross, an inmate who had just completed a shift in the'kitchen, came to the Health Care Unit for medical attention. It seems that at about 6:00 p.m., Mr. Ross had cut his finger on a broken bowl. Although the cut was deep and there was a fair amount of bleeding from it, Mr. Ross simply wrapped it up and continued working until his shift was over. The grievor brought Mr. Ross into the Treatment Centre of the Health Care Unit so that the wound could be thoroughly cleansed at the sink. As to what happened next, however, there was a marked divergence in the evidence. Mr. Ross, who was under subpoena, testified that after the grievor cleaned and dressed the wound, he asked him if he had a tetanus shot. Mr. Ross replied that he thought he had. The grievor then responded that he would nive Mr- Rnsc cnmpthinn in C~CP of infection. HP then asked if : 4. - Mr. Ross was allergic to penicillin. Mr. Ross confirmed that he was no<. Upon hearing this, the grievor gave Mr. Ross four capsules and directed him to swallow them immediately. After Mr. Ross did so, he gave him four more to take back with him to his dormitory and instructed Mr. Ross to take them on the following day. When asked whether the grievor identified the capsules to him, Mr. Ross stated that the grievor told him that they were "Anacillan"~,a derivative of Penicillin that would not give rise to an allergic reaction. Mr. Ross added that hehad never taken-such pills before. He testified that he was aware, however, that the only value of antibiotics is to cure sickness. They were not useful for purposes of gaining pleasure, but strictly for health reasons. According to Mr. Ross, the grievor gave him the four pills that he was to take back to his dormitory in a small white paper cup. When he arrived at his bunk, he put the paper cup upbn one of the shelves of his locker, which was located behind the bed. In his testimony, the grjevor flatly denied this sequence of events. According to the qrievor, he was irritated with Mr. Ross for waiting so long to come to the Health Care Unit after having cut his hand, and he told him so. Then, after cleaning. Mr . Ross' wound and applying a pressure bandage, he asked Mr. Ross if he had had a tetanus shot. When Mr. Ross said yes, chn n-i PVOT tnld him tin corneLba& on the next day, and sent him 5. back to his dormitory. The whole sequence of events, the grievor testified, took only five to six minutes. The grievor further testified to the existence of a set of circumstances that would support the theory that when the qrievor was not looking, Mr. Ross grabbed a handful of capsules from a bottle of Cloxacillin sitting on a medication tray not more than four to five feet away from the sink. It seems that earlier in the shift, the grievor had been required to make a special trip back to the Health Care Unit inorder to provide to a new arrival, Mr. S. Xubis, an authorized dosage of Cloxacillin. The grievor stated that when he entered the medical supply room to get the Cloxacillin, he found the room to be so hot and stuffy that he brought the bottle out to the medication cart and counted out the required dosage of capsules there. He then forgot to return the bottle to the supply room, thereby accidentally placing it withineasy reach of Mr. Ross during the time that hue was at the sink. One matter upon which all of the evidence was in agreement was that subsequent to Mr. Ross' departure from the Health Care Unit, a bottle of Cloxacillin was found on the medication cart. At about 8:00 a.m. on the following day, March 25, a spot check for contraband was performed in Mr. Ross' dormitory. Apparently, at the time the spot check commenced, Mr. Ross was at the Realth Care Unit getting his bandage checked: however, he returned in time to be confronted by Correctional Officers with the four capsules which had been found in his locker. 6. : . When Mr. I. A. Kruzynski, the Correctional Officer who found the capsules, asked Mr. Ross where he got them, Mr. Ross stated ‘that he received eight of'these capsules on the previous. evening from the Duty Nurse in the Health Care Unit. Mr. Kruzynski then proceeded to the Health Care' Unit where, at 8~25 a.m., the Nurses on the day shift identified the capsules as Cloxacillin. ~-Therea'fter, at 9:30 a.m., Mr. Ross made out an Occurrence Report which described as follows the way in which the capsules came into his possession: - at 600 pm I cut my thumb on a broken bowl in the kitchen. (on 24 March 83) - At 8:00 pm I proceed,ed to the nurses to have it looked after. The nurse mended it. He then asked me to think back and, see or remember whether I had a tetuis shot in the last two years. I confirmed that .I had and that I couldn't be sure when exactly. He said he would give me something for a protection from an inf'ection. He gave me four penicilin pills to eat right then and four to take the following day. I did not question his actions since he is the nurse and should know whats best. I then went back to my dorm for the night. The report stated that in order to protect Mr. Ross from infection, the grievor qave him four"Penicillin"pills to eat right away and four to take the following day., This was just one and one-half hours-after Mr. Ross had been confronted with the pills. At the timeJ Mr. Ross was 19 years old. At the hearing, it was suggested to Mr. Ross in cross- examination that the reason why he made out the above report, which essentially exculpated him from all responsibility for possessing contraband, was that at about the same time he had a parole hearinq coming up and he knew that if his record showed that he had been : 7. . caught in possession of contraband, it might have adversely affected his chances. Despite the fact that at the time he testi- fied, his sentence was completely finished, and so he was free from the jeopardy that existed then, Mr. Ross confirmed that his report was accurate. That Mr. Ross recognized the signifi- cance of this freedom was underscbred in further testimony that he gave. Mr. Ross readily admitted that at the time the pills were found he knew that he was not supposed to have them in the ,dormitory. He stated that the grievor had warned. him of this fact. He said, 'I knew I had contraband and I knew I was up for a parole hearing. I didn't let on.that. I knew. I played that I didn't know it was contraband." With no implicit threat of denial of parole looming on the horizon, this was the only essential .~ : respect in,which Mr. Ross changed his story. The Board also heard testimony from Mr. J. Dougdean, the Staff Training Officer at the Mimic0 Correctional Centre. Mr. Douqdean stated that at about 7~45 a.m. on Monday, March 28, 1983, the qrievor came into the Staff Training Office to speak to him about a CPR course he was supposedto take on April 8. According to Mr. Dougdean, in the course of their conversation, he asked the-grievor how things were going. The qrievor replied that there had been a search.in No. 2 Unit and some capsules were found and that the Head Shift Officer was making a big fuss over it. IMr . Dougdean also stated that the griever told him that he gave the inmate four capsules for his injury and an additional four capsules which they found. The inmate stated that it was given to him h" n-0 nF +hn h,TllTCPC~ or. nn~~oti.~an added that he asked the : 8. f grievor what he was going to do about it and the grievor replied, "they are making a big fuss over it and if questioned I will deny the whole thing",. A matter of minutes after the grievor made this statement, Mr. Dougdean testified, he.attended the usual meeting for all senior~management staff. This meeting lasted from 8:45 a.m. to 10:00 a.m. In the course of the meeting, the Assistant Deputy Superintendent, Mr. K. Farquhar, handed to the Security Officer, Mr. M. Doherty , a pile of papers,which he stated related to the investigation of the medication problem. As Mr. Doherty walked out of the meeting with the material in hand, Mr. Dougdean' told him that just that morning, the grievor admitted to Mr. Dougdean that he gave the inmate the capsules. i ~. When Mr. Doherty testified, he confirmed that the above conversation had taken place. He added that he advised Mr. Dougdean to put this information in writing. He also stated that he had no reason whatever to disbelieve Mr. Dougdean. He had information from him regarding other incidents in the past and the information had always heen reliable. Subsequently, Mr. Dougdean submitted the requested report. In his own testimony, the grievor denied that he made any such statements to Mr. Dougdean. The grievor also challenged Mr. Dougdean's recollection that the conversation during which the admission alledgedly was made, took place on the Monday morning. He stated that the only conversation that he had with Mr. Dougdean in the relevant period of time occurred at 2:15 p.m. on the Friday sre.raar?i nn thi c Mr,nri~,r I,lhi In thic conversation was about. a CPR : . 9. course, the grievor stated, he never admitted in the conversation that he had given Mr. Ross the capsules which were found in his locker. According to the grievor, Mr. Dougdean asked, "ROW are your Pierre?" I said I was alright except that there was an alle- gation against me. I said, "I denied it." The qrievor then added that he didn't know whether or not Mr. Dougdean had misunderstood him. The Board also heard testimony from Mr. D. Graves, a Correct- ional Officer 2 and Chief Steward of the Union Local at Mimico. Mr. Graves testified to an incident which occurred in 1981. According to Mr. Graves, this incident involved the credibility of Mr. Dougdean. According to Mr. Graves, Mr. Dougdean instructed him by telephone to fill an opening in the Institution's community programs. This was regarded as a premium job because it involved no shift work. A few days later, however, when the Assistant Super- intendant questioned this work assignment, Mr. Dougdean denied making the telephone call. Despite these developments, Mr. Graves remained on the program for 13 months. We now proceed to consider the matter of finding,the facts in light of the divergent evidence which has been set fdrth above. In his argument, counsel for the Union aptly put this question to the Board as a matter of deciding whether the evidence of Messrs. Ross and Dougdean is to be believed when faced with the consistent denial of the grievor. On balance, the Board is led to the conclusion that the evidence of the former must be preferred. 10. : . Accordingly, it must be found as a fact that the capsules which were found in Mr. Ross' locker had been given to him by the grievor when he visited the Health Care Unit on the previous evening. a At the hearing, it generally was agreed that ordinarily, the statements of Correctional Officers and other staff members are preferred over the statements of inmates. The present case might be said to exemplify the soundness of such a preference. .There can be little doubt that to avoid jeopardizing his chances -for parole, Mr. Ross withheld from the authorities the fact that he knew that he was notsupposed to have the capsules in his dormitory. In other words, he withheld information that he knew the- capsules were contraband. In a very real sense, at the time of the incident,, :: Mr. Ross' credibility had to be questioned because he had a stake in the outcome of the case. For this reason, it would have been inappropriate for the Institution to take disciplinary action against the grievor solely upon the basis of Mr. Ross's statement. At the time that Mr. Ross testified, however, this impediment to his credibility no longer existed. He did not have any stake in the outcome of the case. Because his sentence had ~been com- pleted and, accordingly, parole could not have been revoked, Mr. Ross comfortably could have retracted his entire statement and admitted that he took th-e pills. There was nothing to stop him. On the evidence, he had no reason to dislike the grievor. He recognized that he was not in any jeopa,rdy. He did not stubbornly cling to his story through some misdirected desire to remain consistent. V^.- +I.- F:r.-+ +;me hn canrii rilv AdAi tted t~hat at the time the i 11. : . capsules were discovered, he knew they were contraband. At the same time, he confirmed that they had been given to him by the grievor. It also.appears that the credibility of this aspect of Mr. ROSS' story is enhanced by the improbability of his knowing the nature and use of the capsules if he had simply snatched them from the bottle on the medication cart. At the time Mr. Ross made out- his Occurrence Report, just one and one-half hours after the capsules were discovered, he stated that he thought, they were Penicillin for use in preventing infection. This information would have been unavailable to an inmate engaged in a surrepitious act of stealing. Moreover, the evidence made it clear that if he did know, there would not have been'any incentive to steal the capsules. It was undisputed in the evidence that it wou.ld be impossible to use Cloxacillin as a "recreational" drug. It does not possess any mood altering or hallucogenic qualities. When these factors are combined with Mr. Dougdean's testimony of the'grievor's admission of responsibility, they -lead irresistibly to the conclusion that the grievor gave the capsules to Mr. Ross. Again, Mr. Dougdean was not a stake- holder in the outcome of the case. Neither the grievor nor'Mr. Douqdean gave any indication of the existence of an animosity between them. There was no indication that Mr. Douqdean had any- thing to gain by bringing this admission to the attention of :Yr. 12. : I Doherty. The testimony of Mr. Graves solely related to a single incident, and feil far short of establishing any general reputation for lack of credibility. It does not seem that the grievor's denial of responsibility is sufficient to outweigh the contrary inference to be derived from the above considerations. The grievor had a direct stake in the outcome of the case. Other than the fact that a bottle of Cloxacillin undoubtedly had been left on the medication cart, there was no evidence to corroborate his version of events. The bottle of Cloxacillin might as easily had been left on the medication cart after the grievor had given the pills to Mr. Ross as after the grievor finished counting out the dosages for Mr. Kubis. In light of these and the above factors;' it must be found as a fact that Mr. Ross did not steal the capsules which were found in his locker; they were given to him by the grievor. There is no doubt that in so doing, the grievor knowingly contravened the requirement that administration of an antibiotic medication such as Cloxacillin must be authorized by a doctor. The existence of this requirement, and-the grievor's knowledge thereof, was not'disputed in the evidence. The evidence also supported an inference that in taking it upon himself to administer Cloxacillin to Mr. Ross, the qrievor was'in violation of his pro- fessional rules df conduct. In light of these considerations, it cannot be said that the decision of Mr. G. G. Simmons, the Superintendent of the Institution, to suspend the qrievor for one dav was unreasonable. In the view of the Board, the one-day .' 13. . 1985. suspension was well within the range of reasonable disciplinary responses to such conduct. The grievance is dismissed. DATED at London, Ontario, this 26th day of June, Vice Chairman L. Robinson,~Member (see addendum attached) L. Foreman, Member : . ADDENDUM re: 5?2/83 ---------- I concur with the Majority Award There is a puzzle in this case not deal with. It is that allegedly gave to Mr. ROSS, from his injury. The Majority Award thus concludes that the griever not only gave Mr. Ross an unauthorized drug, but also t?.c -.:rcr.q O'C. It zcczc ir...rc'--51c t&t he ,y:Q.llc! h>.k *c?.e t.h.i: .._ . - deliberately. My hunch is that the grievor may have got mixed up and inadvertently given Mr. Ross the wrong drug. When the grievor was told of the search having found Mr. ROSS in possession of the capsules which he should not have had, he would then have realized his mistake and, to cover himself, he then denied having given them to Mr. Ross. It fo:llowed from this denial that Mr. Ross must himself have taken the capsules from the medication tray. Inadvertence is of course not the same as knowingly dispensing the wrong drug, but in either case a one-day suspension does not seem to be excessive.