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HomeMy WebLinkAbout1984-0418.Kulmatycky.87-02-13 Decisionreceived IN THE MATTER OF AN ARBITRATION Under The Crown Employees Collective Bargaining Act Before Human Resources Branch THE GRIEVANCE SETTLEMENT BOARD BETWEEN : Ontario Public Service Employees Union (Jon Kulmatycky) Grievor and The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE : FOR THE GRIEVOR: FOR THE EMPLOYER: HEARING DATES : R.L. Verity, Q.C. E. McVey W.A. Lobraico R. Anand, Esq. R. Stoykewych, esq. Cavalluzzo, Hayes and Lennon Barristers and Solicitors Vice-chairman M: em b e r Member R. McCully, Senior Solicitor E?. Alchuk, Solicitor Legal Services Branch Ministry of Community and Social Services February 11, 12, 1986 March 3, 4, 25, 1986 April 3 4, 1986 June 16, 17, 1986 May 5, 6, 1986 July 2 3 1986 I. DECISION In a Grievance dated April 26., 1984, John Kulmatycky, an Agricultural Worker employed at the Oxford Regional Centre, alleged that he was suspended and discharged without just cause. The grievance requests reinstatement with full remedial redress. Grievor was suspended on April 4, 1984 pursuant to Section 22(1) of The the Public Service Act for 20 days pending a Ministry investigation and subsequently discharged under Section 22(3) of the Public Service Act on April 24, 1984 retroactive to April 4. Oxford Regional Centre is located near Woodstock, Ontario, and is a facility for developmentally handicapped adults. The Centre is operated by the Ministry of Community and Social Services and provides residential accommodation and training programs for some 560 mentally retarded adults, both male and female. The central issue for determination is whether the Grievor was discharged for just cause. The dismissal was for alleged resident abuse. In this matter, the Board has had the advantage of an exhaustive enquiry which consumed 13 days of detailed testimony and argument. witnesses for the Union. In addition, the Board viewed the In all, 12 witnesses testified for the Employer and 5 facility on July 2, 1986. Following a Ministry investigation and a meeting with the Grievor on April 19, 1984, Oxford Regional Centre Administrator R. D. Goodbun wrote the following letter of termination. "Re: Meeting of April 19, 1984 I have reviewed in detail the results of this meeting, and I have thoroughly reviewed again the report of the Ministry investigation. received, I must conclude that two distinct incidents of resident abuse have been established specifically, the 'C' incident of January 31, 1984, and the 'R' incident of January 21, 1983. In addition, the other incidents which we discussed the B incident and the hay field incident represent, to say the least, inappropriate behaviour on your part. employment with this Centre. that you are aware of the Standards of Conduct including Section 10 (Abuse). I have appreciated your admission of a kick in the C incident evidence presented, that you have, on more than one occasion, abused residents of this facility. In so doing, I must exercise my authority, under Section 22.3 of the Public Service Act and the Ministry's policy on delegation of authority, and dismiss you from your employment effective April 4, 1984. From the evidence I have Jon, I note you have 8 years of continuous I further note I must conclude, however, from the The four 'incidents referred to in the termination letter were set out in greater detail in a letter dated April 17, 1984 following completion of the investigation. The allegations in both letters are as follows: "1) Abused resident C on or about January 31, 1984; 2) Abused resident 'R’, pinning him to the floor; 3) Abused resident 'B’ in the potato field; 4) Abused an unidentified resident by pointing a knife at him and kicking him." Subsequently, following an Ontario Provincial Pol ice investigation, the Grievor was charged with common assault under Section 245 of the Criminal Code of Canada for both the incident involving resident "C" on January 31, 1984 and the incident involving resident "R" on January 21, 1983. The Grievor entered a guilty plea to the assault charge involving resident "C" on his admission of kicking the resident in the rear; however, he denied any responsibility for facial injuries sustained by the resident. On January 11, 1985, Oxford County Court Judge C. C. Misener convicted the Grievor and sentenced him to pay a fine of $100.00, -An appeal against sentence was subsequently dismissed by the Ontario Court of Appeal. - 5 However, on May 1, 1985, following a two day trial, Oxford District Court Judge C. C. Misener found the Grievor not guilty of assaulting resident "R" on January 21 1983. The allegations against the Grievor arose as a result of injuries sustained by resident "C" on January 31, 1984. An accident and injury report established the fact that at approximately 9:45 a.m. on January 31, 1984, the resident returned to his ward and was observed with "an abrasion below his right eye", "swelling and discolouration" and "a nose bleed". The resident was given appropriate medical attention. At the Hearing, there was no medical evidence presented regarding the probable cause of the resident's injuries. Shortly thereafter, rumours began to circulate, fanned in no small measure by agricultural workers Ian Hart and Dave Morrow, that the Grievor inflicted the injuries upon resident "C". The Centre's Chaplain Rev. Muriel Carder received a telephone call from the mother of resident "C" expressing concern that she had not been informed of her son's injuries. The matter eventually came to the attention of Administrator Goodbun. Initially, Mr. Goodbun directed Rev. Carder to conduct an informal investigation and file a report. Rev. Carder complied with the request, interviewed numerous staff members, including the Grievor, and filed a four page written report dated March 14 15, 1984. I Upon receipt of that report Administrator Goodbun concluded that there was sufficient evidence to justify a Ministry investigation. Ms. Louise Neilly was assigned to conduct the investigation and arrived at the facility on March 16, 1984. On April 13, Ms. Neilly filed a twenty page written report. BY way of separate attachments, she enclosed her recollection of statements given by the individuals interviewed. Ms. Neilly's report contained some on the part of resident abuse 14 findings which specified unprofessional conduct several staff members, including incidents of by the Grievor. There is no dispute that the Ministry founded its case on the four incidents referred to above. At the Hearing, the Board allowed the Employer to submit additional evidence, alleged to be similar fact evidence, concerning resident abuse. These incidents were known to the Employer in April 1984, but were not relied upon in either the letter of April 17 or the discharge letter of April 24. In our opinion, it would be inappropriate to consider allegations which the Employer was aware of but did not rely upon to ground the dismissal. Accordingly, we make no reference to any incident other than. the four specified. We turn now to outline each allegation. -7 1. January 31, 1984 Farm Office Kitchen Incident Involving Resident "C" The Employer alleged that the Grievor assaulted resident "C" during the morning of January 31, 1984 by confronting him in the kitchen of the farm office in the process of making a cup of instant coffee. The assault took the form of a kick to the resident's rear. In addition, the Employer alleged that there was strong circumstantial evidence that the Grievor inflicted the facial injuries sustained by resident "C" on that date. The Grievor admitted that he had kicked the resident but vigorously denied causing any of the injuries. There is no dispute that resident "C" had a propensity to steal coffee, and on occasions to steal food. All farm staff, with the exception of the Grievor, kept their lunches in either the farm office refrigerator or in individual lockers. For a number of years, the Grievor placed his lunch on the table in the farm office. There is also no dispute that the Grievor's lunch and coffee had been tampered with for several weeks prior to January 31. All farm staff were aware of the fact that resident ''C" was the probable cause of the problem. -8 According to the Grievor's testimony, although he could not recall the exact date, he observed resident "C" climb the outside stairway and enter the second floor farm office one winter morning in 1984 at approximately 9:15 a.m. The Grievor testified that he followed the resident and observed him at the kitchen sink in the process of making a cup of instant coffee. resident had his back to the Grievor at all relevant times. In examination-in-chief the Grievor testified: "I gave him a kick in the seat of his pants...I told him to ‘git’...I stamped my feet", The although he could not recall the sequence of these events. According to the Grievor's testimony, the resident turned and brushed against the Grievor's left shoulder and fled down the staircase. The Grievor testified that he immediately went to the tractor shed and told Foreman Laverne Davis: "I chased resident ‘C' out". Further, the Grievor testified: "I probably said I kicked his ass out of there". According to the Grievor's testimony, "Laverne wasn't concerned". The Grievor admitted the kick incident when he was interviewed by Rev. Muriel Carder on February 29. Farm worker Dave Morrow observed the Grievor running up the stairs "in quite a hurry'', and also observed resident “C" I__ I- -9 shortly thereafter at the bottom of the steps proceeding with dispatch in the direction of Ward C. Morrow testified that he observed blood on the staircase when he went to the farm office for a coffee break at approximately 9:30. In his words: "I thought someone had been cut with a chainsaw". He also testified that he observed "a little bit of blood on the floor beside the door". It was his evidence that the Grievor had said, on numerous occasions prior to this event, if he ever caught him, he would fix him so he wouldn't do it again". Farm worker Ian Hart testified that the Grievor was agitated because coffee had been missing from his thermos for several weeks. According to Hart, the Grievor was alleged to have said sometime in January of 1984 "someone would have to be taught a lesson", and that the Grievor told him that he was going to lay a trap for resident "C". noticed "a large bright red splotch" on about the third step from the bottom and also blood going up to the landing. In addition, he testified that he observed four floor tiles inside the farm office near the door "covered with blood". He also observed Foreman Laverne Davis wiping -something from the tiled floor with a paper towel. Hart's testimony was to the effect that he Farm worker John Thomas recalls seeing a trail of blood "from the bottom of the farm office steps leading toward Ward C, and a splattering of blood on every second or third step". He also observed "two or three splatters of blood" in the farm office doorway. Mr. Thomas testified that he recalled seeing Laverne Davis standing in the doorway with a paper towel in his hand. According to Thomas' evidence, he heard the Grievor mention the incident at 2:30 during coffee break, Thomas also testified that the Grievor told him that he caught resident "C" drinking coffee and startled him, which caused the resident to jump and run into the door frame, Thomas' testified that he examined the door frame but observed "no blood and no dents", However, Thomas could not recall if he spoke to the Grievor about blood on the stairway. 2. January 21, 1983 Farm Implement Shed Incident Involving Resident "R" The Employer alleged that the Grievor assaulted resident "R" on January 21, 1983 in the farm implement shed as a result of the resident's failure to perform assigned work. The Grievor is alleged to have improperly used force in putting the resident to the ground and holding him in that position by sitting on him and bouncing on his chest. Dennis Tong was a Residential Counsellor at Oxford Regional Centre from 1972 to 1985. He is now employed as a case worker with the Oxford County Family and Children's Services. He testified that in February of 1983 he was one of three residential counsellors assigned to work with resident "R". On the day in question, Tong was assigned to ensure that the resident collected branches from a tree trimming operation organized by the Grievor on the Centre's property east of Highway #59. The resident apparently had a reputation for refusing to work and running away from the work area. The men returned to the farm implement shed and the witness Tong recalls that he and the Grievor escorted resident "R" back to the shed. Once inside the shed, Tong testified that the Grievor took the resident "by the lapels of his outer clothing and proceeded to put him on the floor'. In Tong's words, "it was a trip takedown". The Grievor was described as "straddling" the resident and 'bouncing lightly" on the resident's chest. Tong testified that he went out of the shed to have a cigarette where he met another farm worker, Ron Pollock. It was Mr. Tong's testimony that he left the shed because in his words: ''I felt at the time if the situation were to escalate, I didn't want to be a witness to it". The Residential Counsellor's evidence was. that he was outside the shed for some 10 minutes before the Grievor and the resident emerged together. Tong's recollection was that the resident was still objecting to the work assignment. Resident "R" then fled the scene with Counsellor Tong in pursuit. The chase ended when both men slipped on ice and fell. The I. 12 resident injured his hand and Counsellor Tong sustained bruised ribs. A medical report filed established that the incident occurred on January 21, 1983 and not in February as was Tong's evidence. At the Hearing, Counsellor Tong testified that the Grievor used "inappropriate" force on the basis of the Ministry's Standards of Conduct. However, he did not report the incident. Tong testified that management did not encourage the reporting of such incidents and that those who did so were adversely labelled by fellow staff members as "snitch" or "fink" In cross-examination, Mr. Tong stated: "I knew I had to work in a high risk area where I needed assistance from staff I wasn't going to report something borderline in its definition of abuse". In cross-examination Mr. Anand showed the witness the Ministry's definition of Abuse as contained in Exhibit 17. When asked if he regarded the incident as abusive, Mr. Tong replied in the affirmative and stated: "Had I been able to draw on that definition, I would have reported it....I wasn't familiar with emotional abuse or inappropriate restraint. My personal interpretation of abuse only went as far as physical injury" The Grievor testified that he recalled an incident in 1983 in which Residential Counsellor Tong was injured. According to the Grievor's recollection, he together with farm worker Kerry 13 Ellis, Dennis Tong and resident "R" were cutting maple firewood on the east side of Highway #59. The Grievor recalled that the resident refused to work as directed, and in order to avoid a disturbance in a high volume traffic area, the Grievor drove the tractor and the men back to the implement shed. On reaching the shed, the resident fled with Counsellor Tong in pursuit. The short chase ended when the resident and Tong slipped on ice. The Grievor denied any physical altercation with the resident in the implement shed 8 Farm worker Kerry Ellis' recollection of the incident was similar to the Grievor's explanation. When asked in examination-in-chief whether the resident went into the tractor shed, Mr. Ellis replied: "Not that I seen". In cross-examination, when questioned further whether he had seen the Grievor and resident "R" enter the shed, he replied: "No I did not...They may have but I did not see them go in". c 3. Fall of 1981 Potato Field Incident Involving Res id en t " B Counsel for the Employer contended that the Grievor's behaviour towards resident "B" was inappropriate and abusive during an incident in the potato field on the east side of Highway #59 in the fall of 1981. Farm workers John Thomas, Dave Morrow and Ian Hart testified that the Grievor used more force than was necessary in putting the resident to the ground and sitting on him. John Thomas testified that he observed the Grievor give resident "B" a hip toss in which the Grievor landed on top of the resident. The Grievor allegedly sat on the resident for several minutes. testified that he heard the Grievor say in an angry voice: "if you Thomas do that again, I'll kill you". Ian Hart testified that the resident gave the Grievor a nudge in the back. According to Hart, the Grievor over-reacted, threw the Grievor to the ground and banged his head several times into the ground. The Grievor recalled this incident and stated that while on the potato digger he was placed in-a bear hug by the resident. Both allegedly fell to the ground and eventually the Grievor straddled the resident and held him in that position for a minute to a minute and a half. He denied banging the' Grievor's head into the ground or striking him in any fashion. 4. The Fall of 1983 Hayfield Incident Involving Resident 'IT" Counsel for the Employer alleged that the Grievor abused resident "T" by improperly brandishing a knife and kicking the resident in the rear. Farm worker Kurt Hesse testified that in the fall of 1983 he, fellow worker Kelvin Cunningham and the Grievor were stacking hay. resident IT". brandished a three to four inch blade directly in front of the resident's face. The Grievor allegedly stopped the tractor when he observed Allegedly, the Grievor then pulled out his knife and Mr. Hesse testified that the Grievor said "Get I the fuck out of the field or I'll cut your balls off". to Hesse, the resident turned and was kicked in the rear. According The Grievor did not recall this incident. Farm worker Kelvin Cunningham was employed at Oxford Regional Centre from April to September, 1983. kicking over rows of hay in the fall of 1983. that the Grievor stopped his tractor and told the resident to get out of the field or: According to Mr. Cunningham, the resident was no closer than 200 to 300 feet away from the Grievor. Grievor carried a knife, he did not withdraw. the knife. He testified that he recalled a resident He further recalled "I'll kick you in the ass". Mr. Cunningham testified that although the Lengthy submissions were made by both Counsel. makes no attempt to repeat the able arguments presented. it to say that Ms. McCully and Mr. Alchuk contended that the The Board Suffice 16 dismissal was appropriate in all the circumstances. Mr. Anand argued forcefully that the investigation process was so fatally flawed that the grievance must succeed. In this prolonged matter, the Board will not attempt to review all the evidence, except in some salient respects. The standard of proof borne by the Employer in rights arbitrations is the civil burden of proof, namely proof on the balance of probabilities. As a general rule, the civil test is a lesser test that the criminal standard of proof beyond a reasonable doubt. However, where serious or reprehensible misconduct is alleged, arbitration boards generally require that the allegations be established on the balance of probabilities by clear and cogent evidence. Put another way, proof must be established on a reasonable degree of probability which, of course, is a lesser test than required in a criminal case. Lord Justice Denning placed the matter in proper perspective in the frequently quoted passage from his Judgment in Bater v. Bater [1950], 2 All E. R. 458 at p. 459 as follows: "The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is -_I- 17 subject to the qualifications that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great Judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. the case may be proved by the preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal Court, even when it is considering a charge of a criminal nature,' but still it does require a degree of probability which is commensurate with the occasion." In this grievance, credibility determinations are crucial. The Courts have considered the issue of credibility on many occasions. An excellent statement is found in the rationale of Mr. Justice O'Hallaran of the British Columbia Court of Appeal in Faryna v. Chorny [1952] 2 D.L.R. 354 at pp. 356-8 as follows: "If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. On 18 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded experienced and confident witnesses, and of those shrewd persons adept in the half-lie and or long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say 'I believe him because I judge him to be telling the truth', is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the prepondesance of probabilities in the case and, if this view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on 19 one element only to the excluision of others, but is based on all the elements by which it can be tested in the particular case. Mr. Justice Stephen put it another way: He said (General View of the Criminal Law, 2nd ed., p. 191) 'that the utmost result that can in any case be produced by judicial evidence is a very high degree of probability...The highest probability at which a court of justice can, under ordinary circumstances probability that a witness or a set of witnesses tell the truth when they affirm the existence of a fact.'" arrive is the Similarly, in resolving contradictory evidence, Mr. Justice O'Hallaran made the following comments in Weeks v. Weeks [1955], 3 D.L.R. 704 at p. 709: "In such cases a Court must look for the balanced truth in the corroborative evidence if such exists, and in any event measure all the evidence perspectively by the test of its consistency with the preponderence of probabilities in the surrounding circumstances..." The Board applies the above criteria and standards. The Ministry has issued policy statements entitled "Standards of Conduct and Disciplinary Guidelines", which it periodically revises. dated November of 1983, "unacceptable conduct" includes: Under s. 10 of the Standards and Conduct "Use of force in excess of approved methods resulting in injury or abuse to trainee, resident or ward; assault or sexual harrassment of or involvement with employees, clients or visi tors. "Abuse" is defined in the Standards of Conduct as follows: "The unwarranted and/or inappropriate use of physical force psycholog ical stress or sexual involvement, or any unwarranted inappropriate act or omission, -(including action which leaves no physical scars, but results in emotional damage) by staff interacting with residents, wards and trainees." Disciplinary Guidelines for a first infraction of "abuse" reads: "Written reprimand and up to one month's suspension or dismissal depending on seriousness of offence." For a second infraction, the guidelines call for d i smis sal. In reaching .our conclusion, the Board has excluded -consideration of either the Carder report or the Louise Neilly report. Although made exhibits at the Hearing, both reports are hearsay in the form presented and accordingly cannot be relied 21 upon. While hearsay can be received into evidence, as it was in this case, it cannot be relied upon to contradict sworn testimony. The evidence established that Louise Neilly was sent by the Ministry to. investigate a single incident, namely the alleged assault by the Grievor upon resident "C", on January 31, 1984. her own initiative she expanded the scope of the investigation to consider other allegations of alleged misconduct against the On Grievor. She cannot be faulted for so doing. In retrospect, it would have been helpful had investigator Neilly obtained sworn statements from the witnesses interviewed. In particular, Ms. Neilly's group interview of six farm staff on March 28, 1984 was, we think, a serious mistake which understandably lead to the allegation of contamination of the evidence The absence of occurrence reports on any of the allegations against the Grievor causes the Board to consider the evidence with utmost caution. Obviously, the absence of reports took away the opportunity to refresh memories. panel of the Board is with the reliability of evidence, some of which was staledated, and all of which is unrecorded and unreported at the time of occurrence. However, it is evidence that there was an infection of silence on the part of the principal actors at the The concern of this 22 critical times. Indeed, there was no discipline imposed on any employee for failure to file reports on any incident which allegedly took place. The Union takes the position that the Employer's evidence is so flawed by the lack of reports, the inadequacy of investigation procedures, the passage of time and faulty recollections that none of it should be deemed reliable. To that submission the Board cannot give assent. Admittedly, the Grievor's appointments on two separate occasions as acting foreman (March 14, 1983 to May 15, 1983; and March 19, 1984 to April 3, 1984) were not well received by his peers, most of whom were more senior employees. Admittedly, the Grievor's friendship with farm manager Frank Burtch and farm foreman Laverne Davis was resented by at least some of the farm staff. But animus and resentment in fellow employees falls far short of establishing a conspiracy as alleged by the Grievor. On all the evidence adduced, the Board is satisfied that there was no conspiracy among farm staff against the Grievor. It is neither necessary nor useful to overburden a lengthy decision with details of the evidence. Suffice it to say that the Board is unable to accept either the whole of the evidence given by the Grievor and the witnesses called on his behalf or the whole of the evidence presented by the witnesses called by the Ministry. However, a brief summary of some of the principal actors may be helpful In our opinion, John Thomas was a credible witness who testified candidly, objectively and within the limits of his recollection. In sum, his testimony was cogent and compelling. David Morrow was also a forthright witness. We note that Morrow was exposed to the general daily discussions among farm staff and we have made the appropriate reservations in considering his evidence. However, having made that reservation the Board generally found his evidence to be credible. witness Ian Hart tended to exaggerate in respect of certain crucial In our opinion, the events. His demeanor disclosed a dislike for the Grievor and accordingly the Board treats his evidence with grave reservation. The Grievor now age 41, has been employed since 1968 at the Oxford Regional Centre with the exception of a one year period in mid-1970 when he was engaged in private full time farming operations. He was a Residential Counsellor qualified in psychiatric nursing. prior to assuming the farm labourer position in 1979. There was no suggestion that the Grievor was not fully aware at all times of the Ministry's Standards of Conduct prohibiting resident abuse. The Grievor has consistently denied any resident abuse with the exception of the kick to resident 'C" in January 24 1984. However in opposition, considerable evidence was tendered by fellow farm workers Having regard to the Grievor's long and unblemished service has caused the Board to examine very critically the evidence against him. However, having seen and heard the Grievor, and having considered all the evidence at the Hearing, the Board is lead to the conclusion that the Grievor did abuse two residents at Oxford Regional Centre contrary to Section 10 of the Ministry's Standards of Conduct. In summary, we make the following general observations and findings of fact: (1 AS REGARDS THE INCIDENT OF JANUARY 31, 1984: At issue is whether the Grievor's admitted kick to resident "C" and the facial injuries to that resident were part of an assault perpetrated by the Grievor on January 31, 1984. Board is inclined to the view that the two incidents did occur on the same day which was the position taken at the assault trial before Judge Misener. However, the question remains whether it was established before this Board, on the requisite standard of proof, that the Grievor caused the resident's facial injuries on that day. The There is no direct evidence linking the Grievor's kick of resident "C" to the resident's facial injuries. The witnesses, John Thomas and Dave Morrow, observed blood in varying amounts on the steps of the farm office in 1984, but did not testify as to a precise date. the Grievor told him that following the kick, the resident ran out of the kitchen and into the door frame. However, Mrs. Irene Easton, a cleaner with many years experience stated, in uncross-examined evidence, that she observed no blood when she The Board accepts the evidence of Mr. Thomas that climbed the stairway on January 31, 1984 between 9:30 a.m. and 9:45 a.m. In addition, the evidence is contradictory whether or not farm worker Ron Pollock was on duty on the day in question. The Board can only say that if he were a material witness, one would have expected the Ministry to have called upon him to testify. the evidence, the Board is not persuaded that it has been established that the Grievor caused the facial injuries to resident C C" On Therefore, the case is reduced to the Grievor's admission as alleged, that he kicked resident "C" with the side of his foot. The degree of force employed by the Grievor is a matter of dispute. self-defence and, in our view, amounts to resident abuse. It was, nevertheless, an unprovoked assault unrelated to Mr. Anand contends that the Grievor had already been disciplined by way of an oral reprimand for the kick incident. The Grievor's testimony was that he met with farm manager Frank Burtch and foreman Laverne Davis just prior to Burtch's vacation in March of 1984. According to the Grievor, Frank Burtch asked him if he hit resident "C". After hearing the Grievor's denial, Frank Burtch was alleged to have said to the Grievor: "Well I hate to do this, but I have to give you shit". The Grievor testified that he understood this to be a reprimand. On the basis of that evidence, Mr. Anand builds an ingenious argument, based on the rationale of Arbitrator Laskin (as he then was) in Re united Electrical, Radio and Machine Workers, Local 520 and A. H. Talman Bronze Co. Ltd. (1957), 7 L.A.C. 253. In that case, the Grievor was discharged by the Company for refusing to perform work assigned and the use of profanity in rejecting the foreman's request The Grievor subsequently apologized to the foreman in the presence of the chief steward. The foreman accepted that apology and warned that any recurrence of such misconduct by the Grievor would result in termination. The Grievor was reinstated by the Arbitration Board on the basis that the foreman had settled the issue and that a higher echelon of management was precluded from imposing a harsher penalty. This Board is of the opinion that Counsel's argument outruns the evidence and the authority upon which he relies. reasons are these: Our (1) disposition of the incident. We do not see the evidence as a (2) There was no evidence that Frank Burtch resident abuse. (3) insubordinate conduct on the part of an employee in the industrial scene, cited above, and the allegation of resident abuse in this particular setting There is a substantial difference between 2. AS REGARDS THE INCIDENT OF JANUARY 21 1983: The Grievor's evidence was to the effect that the incident in the farm implement shed, already noted above, did not occur. the contrary. sequence of events and who was present both before and after the alleged implement shed incident. Tong's testimony on the ground of prior inconsistencies. The evidence of residential counsellor Dennis Tong is to Admittedly, Mr. Tong was uncertain as to the Counsel for the Grievor attacked It is true that Mr. Tong changed his testimony as to what constituted abuse. Grievor's actions amounted to permissible restraint of the resident. At the assault trial, Tong expressed the opinion that the At the hearing, his opinion was to the effect that the Grievor's actions constituted resident abuse. In fairness to Tong, it should be noted that at the time of the assault trial the Ministry's definition of resident abuse was not placed before him, and his interpretation at that time was limited to physical injury. The Board accepts that explanation. As to the incident itself, Mr. Tong left no uncertainty. Moreover, he presented his evidence fairly and in a straightforward manner. of Kerry Ellis. directly contradict Tong's testimony. testimony does not dispel1 the weight to be accorded to Tong's testimony. The Board accepts Tong's evidence as being totally credible as it relates to his observations of what transpired in the farm implement shed. fabricated or exaggerated his testimony. accept the Grievor's explanation that the farm implement shed incident involving resident "R" did not occur. In weighing that evidence, we do not forget the evidence It should be noted that farm worker Ellis did not In our view, Ellis' There is no reason to suspect that he In a nutshell, we do not -I-._ I.._._____. 29 To return, to the facts of the incident, in our opinion, the resident's refusal to work does not constitute provocation for the Grievor's actions. Similarly, there was no element of self-defence or necessary restraint in the Grievor's favour. One can understand the frustrations experienced by an employee where a resident refuses a work assignment; however, that does not excuse conduct which on the Board's finding of fact amounts to physical abuse. IN our opinion, the Grievor's conduct in the farm implement shed amounts to resident abuse as defined by the Ministry's Standards of Conduct. The Board finds that for no justifiable reason, the Grievor deliberately tripped the resident and sat on him for an extended period, all the while bouncing on his chest. 3. AS REGARDS THE INCIDENT IN THE FALL OF 1981: The Board is satisfied that this incident is so staledated that a reliable accurate account of what took place has been bleached out of memory by the passage of time. Simply stated, we find no sufficient reliable evidence that the Grievor abused resident "B" as alleged. 30 4. AS REGARDS THE INCIDENT IN THE FALL OF 1983: The confident statement concerning the Grievor's brandishing a knife in the face of resident "T" and the subsequent kick to the resident as told by Kurt Hesse is as confidently denied by farm worker Kelvin Cunningham. testimony the evidence was equally balanced and accordingly the Board finds that the incident has not been established in accordance with the requisite standard of proof. At the conclusion of the To sum up, the Board's findings of fact are these: (1) The evidence established that the Grievor did abuse resident "C" on January 31, 1984 by kicking him, in the absence of provocation or self-defence, contrary to Section 10 of the Ministry's Standards of Conduct. (2) The evidence established that the Grievor did abuse resident "R" in the absence of provocation or self-defence, by deliberately tripping him, placing him on the ground, sitting on the resident and bouncing on his chest, contrary to Section 10 of the Ministry's Standards of Conduct. 31 (3) The Board finds that the Ministry did not establish upon the requisite test that the Grievor physically abused other residents as alleged Our task is to determine whether the Grievor has been discharged without just cause. In other words, has the Ministry established that the Grievor has so misconducted himself within the framework of the employment relationship so as to render his continued employment no longer viable? In the instant Grievance, as noted above, we have determined that the Grievor did physically abuse two developmentally handicapped residents contrary to Section 10 of the Ministry's Standards of Conduct and Disciplinary Guidelines. Ministry policy prohibiting resident abuse was at all relevant times known to this Grievor. Unwavering adherence is demanded by that policy. This Board will not consciously lower the standard prescribed by the Ministry's policy. The A final issue remains is this the appropriate case to consider a substituted penalty in lieu of discharge? Under Section 19(3) of the Crown Employees Collective Bargaining Act, the Board is given broad remedial authority to 32 substitute a penalty where the discipline imposed is deemed excessive in all the circumstances. In any consideration of a substituted penalty, the Board is limited by the wording of Section 19(4) of the Crown Employees Collective Bargaining Act. That Section reads" "Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facility, (a) has applied force to a resident in the facility, except the minimum force necessary for. self-defence or the defence of another person or necessary to restrain the resident; The Grievance Settlement Board shall not provide for the employment of the employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of an employee in another substantially equivalent position." In Section 19 (5) (8) "facility" is defined to include, (ii) "a facility under the Developmental Services Act" and in 19(5)(b) a "resident" is defined to include "a resident...in a f acil ity" The Grievor is a long service employee who has been employed on a full time basis for approximately 15 years. these allegations, the Grievor had established an unblemished Prior to 33 employment record. After sustained consideration, the Board cannot agree that on the facts this case warrants a substituted penalty. In the absence of self-defence or provocation, physical abuse of developmentally handicapped' residents has no place in a mental retardation facility. In sum, the Board finds that the Grievor has been discharged for just cause. Accordingly, this grievance must be dismissed. DATE3 at Brantford, Ontario, this 13th day of February, A.D., 1987. R. L. Verity, Q.C. Vice-chairman "I Dissent" E. McVey ! ! W. A. Lobraico