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HomeMy WebLinkAbout1985-0312.Cabon.86-09-30312185, 698185 Between Before: - . For the Grievor: For the Employer: IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Hearing: OPSEU (Pierre Cabon) - and - The Crown in Right of Ontario (Ministry of Correctional Services) R.J. Delisle R. Russell A. Reistetter J. Hayes, Counsel T. Hadwen, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors J.F. Benedict Manager Staff Relations & Compensation Ministry of Correctional Services February 12, 1986 Grievor Employer Vice-Chairman Member Member DECISION The grievor was employed as a registered nurse at Mimic0 Correctional Centre beginning May 10, 1976. The grievor was terminated by letter dated July 11, 1985 (Exhibit 1: 1). The decision was taken by G.G. Simmons, Superintendent, Mimic0 Correctional Centre, following a meeting with the grievor where various allegations of wrongdoing were discussed. The allegations were found to be proven to the satisfaction of the superintendent and the actions of the grievor were held to "constitute a serious breach of institution security and severely damage the fidelity and trust essential to any employer employee relationship". The grievor was advised by letter dated May 24 (Exhibit 1) of the results of an investigation. conducted. by Inspector R. V. Smith and by Mimic0 staff, The allegations contained in that letter were: 1) That on the weekend beginning February 8, 1985, and on subsequent occasions until March 9, 1985, you: a) informed inmate DYAS that Mr. Commeford had the inmate's medical files in his possession and that Mr. Commeford had no right ordering him to report to the institution after you had told him to stay home. b) counselled the inmate to write to the Ministry and the Ombudsman's office to complain about Mr. Commeford. C) informed inmate DYAS that Mr. Commeford got access to the inmate's medical information through his wife, who was the nurse that treated him at the Scarborough General Hospital, while on duty when the inmate reported there. d) counselled inmate DYAS to file a lawsuit against unspecified Ministry personnel because the inmate was required to report to the institution on February 8, 1985. 2 . ‘, ; 2 e) counselled inmate DYAS to fake a seizure so that he could be excused from reporting for his weekend sentence. 2) That on March 12, 1985, YOU had a telephone conversation with inmate DYAS during which you: a) informed inmate DYAS that you had written a letter of complaint to the Deputy Minister regarding DYAS' medical problem. b) questioned the inmate about whether Mr. Doherty had interviewed him on March 9, 1985. c) counselled inmate DYAS to "put pressure on Mr. Commeford's wife". d) informed inmate DYAS that you were going to cause Mr. Commeford and his wife some trouble. The grievor grieves that the employer's action was unjustified. Another grievance, of harassment, set down for hearing at the same time as the instant grievance, was abandoned at the outset of this hearing. The history which culminates in the grievor I s termination begins February 15, 1985. The Correctional Centre regularly receives on Friday evenings a large number of offenders who have been sentenced to a term of imprisonment to be served on an intermittent basis. Such a prisoner will arrive on a Friday evening between 6 - 9:OO p.m. and be released Monday morning between 6 - 9:00 a.m. with a credit of four days of their sentence served. This technique enables the offender to maintain his employment while serving a prison term. If the prisoner fails to arrive on time he may face a charge under the Criminal Code of being at large without lawful excuse. A lawful excuse would exist if the prisoner was granted a temporary absence. A ,-, 3 temporary absence to be properly authorized requires the signature of either the Superintendent or his Deputy. A temporary absence might be granted as the result of an illness. At Mimic0 Correctional Centre there is a Health Care Unit, well equipped, with a 10 bed infirmary. The unit has 5 full-time registered nurses, 2 part-time, and a supervisor. It operates with two shifts providing coverage from 6:30 a.m. to 11:OO p.m. The unit can deal with most situations which do not require the regular attendance of a physician. If an inmate serving an intermittent sentence requests a temporary absence for health reasons the practice is to refer the request to the Health Care Unit. The nurse on duty would contact the inmate's doctor to confirm the illness. More often than not, when the doctor is advised of the health care facilities available, the doctor will advise that the inmate should report. The nurse is called on to make a judgment call based on his assessment of the situation and he makes a recommendation to the Superintendent or Deputy. The Superintendent or Deputy could refuse to follow the recommendation but, according to Superintendent Simmons, this has happened only once, which is the instant case. On February 15, 1985, at 6:50 p.m., the grievor was contacted by the wife of an inmate, one Wayne Dyas. She advised that she was taking her husband to Scarborough General Hospital Emergency Department because his right eye was injured. The grievor contacted the hospital, spoke with one of the nurses, and was told he was under the care of Dr. Danylak who had advised I 4 Dyas to have.a quiet night at home. The grievor telephoned Mrs. Dyas and told her to have her husband report to the Correctional Centre in the morning. On the evening of February 15, Deputy Superintendent Commeford was off duty and at home. He received a call from his wife, a nurse at Scarborough General, who advised him of Dyas' presence. Dyas was well known to Commeford as a person who persistently sought to avoid his incarceration and he telephoned the institution to determine the situation. Commeford was advised that the grievor had granted a medical temporary absence for the weekend. Commeford contacted the hospital and satisfied himself that Dyas was able to attend the institution. Commeford contacted the grievor and told him to contact Dyas and have him report that evening. The grievor followed this instruction and Dyas reported at 11:00 p.m. The grievor was counselled (Exhibit 10) by K. D'Arcey, Health Care Coordinator concerning the proper procedure to be followed in the future. The grievor had failed to obtain the name of the nurse to whom he spoke. This incident is related only as background and does not figure in the decision of the Ministry to discipline the grievor. It is the alleged action of the grievor following this incident which prompted the discipline. The allegations of misconduct set out above stem from an investigation by M. Doherty, Security Officer at Mimic0 Correctional Centre and by Inspector R. V. Smith concerning the grievor's conduct and actions in connection with inmate Wayne Dyas. 5 Inspector Smith described his investigation. He interviewed Deputy Superintendent Commeford and took a sworn statement from him (Exhibit 13). In that statement Commeford says that Dyas told him in a phone call that the grievor had told Dyas of Commeford's wife's giving out confidential medical information and that the grievor was encouraging Dyas to write to the Ministry and to the ombudsman. The hearsay nature of this report renders it of no value. Inspector Smith intentiewed M. Doherty and took a sworn statement (Exhibit 14). Neither statement, Exhibit 13 or 14, are in their original handwritten form and Inspector Smith could not account for their absence. This statement, Exhibit 14, is a statement by Doherty of conversat,ions with Dyas about conversations with Dyas and the grievor and the multiple hearsay renders the statement of no value. Inspector Smith interviewed the grievor and took a statement from him (Exhibit 15). After relating his appreciation of the incident on the evening Dyas was scheduled to report the grievor goes on to deny any suggestion of wrongdoing on his part. There is nothing in this statement of any worth in supporting the allegations of misconduct. Inspector Smith did not interview Dyas though he testified that he "tried unsuccessfully to contact Dyas”. Inspector Smith was surprised to learn, on cross- examination, that Dyas had not yet finished his sentence and could easily have been found on week-ends at the Correctional Centre. Inspector Smith's evidence and the statements taken by him do nothing to advance the Ministry's case of justification. 6 M. Doherty, a Security Officer at Mimic0 for 9 years, described his invektigation. Doherty interviewed Dyas on March 9, 1985, and reduced to writing the results of the interview (Exhibit 11). Doherty testified that he wrote the statement because Dyas was on heavy medication and his hand was shaking. Dyas signed the statement. According to Doherty, Dyas told him that Cabon and Dyas had numerous conversations in which Cabon had advised that Commeford had Dyas' medical files, that Commeford had no right to order him to report to the institution, that Commeford got access to inmate's medical information through his wife who was a nurse at Scarborough General. According to Doherty, Dyas said that the grievor "instructed'* the inmate to write to the Ministry and the. Ombudsman and "instructed" the inmate to sue. In cross-examination, Doherty allowed that he, Doherty, may have chosen the word "instructed" when reducing the matter to writing. Again this evidence of the grievor's actions is~ all based on the .hearsay statement of Dyas. On March 12 Doherty attended on Dyas at his home. In Doherty's presence Dyas telephoned the grievor at the Correctional Centre. Unknown to the grievor the phone used by Dyas was a speaker phone and Doherty was able to monitor the conversation. A statement describing the phone conversation was prepared by Doherty and signed by Dyas as true. According to Doherty the grievor told Dyas that he, Dyas, should put pressure on Commeford's wife and that he, Cabon, would cause trouble for Commeford and for Commeford's wife. Doherty testified that he assumed "trouble" 7 meant legal pressure or complaints to the College of Nurses and to the Ministry. According to Doherty, Dyas told the grievor that he was unable to fake a seizure as suggested by the grievor and that the grievor did not acknowledge nor deny this statement but rather made a noise, like a "grunt". Doherty was adamant that no promises of favourable treatment were made to Dyas to encourage him to implicate the grievor in any wrongdoing. Rather he advised Dyas that no advantages would be forthcoming as the result of his co-operation. He did testify however that Dyas had phoned him on March 11 with the promise of further information ,and to set up the meeting on March 12. When asked on cross- examination why Dyas would contact him in this way Doherty said he, Doherty, "may have said I'd do what I could, but that was based on institutional performance". When asked how he, Doherty, could assist he said he "could add favourable or unfavourable comments.11 It is clear that the only favourable comment that Doherty could make would relate to his cooperation in the investigation of the grievor. Doherty testified that Exhibit 12 was a transcript of the phone call and that he'd left nothing out, "everything I heard is in Exhibit 12". This seems incredible when he described the phone call as lasting 5-10 minutes and Exhibit 12's description of it is one short paragraph. Doherty professed that he was "forthright with the Board" but that appears very doubtful. Deputy Superintendent Commeford testified. He had a phone conversation with Dyas in which he advised Dyas that Dyas 8 was making serious allegations concerning his wife and that it was wrong to involve Commeford's wife in dealing with any of his difficulties. He testified that Dyas said it was not his idea but that it was Cabon who supplied him with the information that Commeford's wife had given out medical information on Dyas. Finally we come to the evidence of Wayne Dyas, the one person who does know what the grievor did and said following the incident of Commeford reversing the grievor's decision to grant a Medical Temporary Absence. Dyas came into the institution January 18, 1985 with three convictions: conceal weapon, weapon dangerous, and dangerous driving. He was sentenced to a term of 90 days to be served on week-ends from Friday evening at 8:00 p.m. to Monday morning at 6:00 a.m. Dyas was a businessman with his own company. This was his first incarceration and clearly he found it most difficult to do the time; The evidence of Simmons, Commeford and Dyas is that Dyas was continually seeking a way to avoid the incarceration. He repeatedly sought release on a Community Work Program as a substitute. Dyas had an alcohol problem and was on prescribed medication. Dyas testified that the grievor told him that when he went to check Dyas's medical files they were missing and that he, the grievor, believed they were improperly in Commeford's possession. Dyas testified that Doherty had called him to his office and questioned him as to whether the grievor had counselled him to sue the Ministry regarding Commeford having the files and Commeford's wife disclosing medical information. Dyas 9 testified: When speaking with Doherty, I was trying to do anything to get out of that institution. I sought the good graces of everyone. I told Doherty I was trying for the Community Work Program and Doherty said he'd see what he could do. Dyas testified that the grievor had told him that Dyas' wife had phoned and threatened to sue the ministry over his treatment and that the grievor had said that was entirely feasible. Dyas testified that he was contacted again by Doherty and asked whether the grievor had counselled him to fake a seizure. He said that Doherty phoned him at home and then came to see him. According to Dyas: "1 went along with everything he said because I figured the he was the best route out of there. I thought he had pull in the institution. I led him to believe Cabon had counselled me to fake a seizure. I phoned Cabon by speaker phone. I talked to him. I tried to get Cabon to incriminate himself. It'd look good for Doherty. Doherty said he'd see what he could do regarding a Community Work Program." Dyas testfied that in response to his statement about a fake seizure the grievor warned him that since they didn't have his medical records they wouldn't know if he was faking or not and therefore it would be dangerous for him. In examination-in-chief Dyas allowed that Exhibit 11 was his statement and to the best of his recollection the statement was true. In cross-examination he testified that on that day he was on heavy medication, was in rough shape and had difficulty thinking about things. He testified: "I didn't read it. I just signed it. All I wanted was to get out. My business was going downhill. I briefly i 10 looked at it and signed it. He said he'd see what he could do regarding a Community Work Program. With respect to the word "instructed the inmate" to sue, Dyas testified: "NO, I wasn't instructed by him to do anything. I said my wife was threatening to sue and he said that was feasible." With respect to Exhibit 12 Dyas said the wording was not right. Dyas testified that the grievor never told him to fake a seizure but rather warned him of the danger. He testified that the grievor never suggested that he, Dyas, should put pressure on Commeford's wife. He testified that the grievor did not say he, Cabon, was going to cause trouble for Commeford and his wife but rather that they could be in trouble for releasing medical information.. When asked why he signed Exhibit 12 he said: It looked good to help Doherty speak to Simmons to get me out - my whole plan was to get out. Counsel for the grievor suggested to Dyas in cross- examination that during the investigation Dyas was "prepared to bend the truth" and Dyas answered "that's putting it mildly". Cabon made a medical judgment as to whether it was advisable for Dyas to report that night. He was overruled. He failed to follow the appropriate procedure of gaining the name of the attending doctor or nurse. He was counselled by K. D'Arcy, Health Care Co-ordinator. She testified that the grievor expressed concern over his responsibility as a nurse should anything happen to the inmate on the way to the institution. We were somewhat surprised by her answers. D'Arcy testified: 11 I told Cabon it was not our responsibility. She was asked: Q. As a professional nurse were his concerns re hazards of transport valid concerns? A: No. It's the inmate's responsibility to get to the institution. The grievor was clearly upset at being overruled and felt humiliated. (See Exhibit 15). He reacted. The Ministry says he over-reacted and have a series of allegations about his actions. Being satisfied that the allegations were substantiated they dismissed him. Was that action justified? At the close of the Ministry's case, counsel for the grievor moved for a non- suit. Counsel indicated he was calling no evidence. Counsel argued that. the Ministry had not produced a case that calls for a response. Counsel argued that the Ministry's own evidence does not support all the allegations on which it acted. We agree. Dyas' earlier statements taken during the course of the investgation have no evidential value save so far as he adopts the same as true while in the stand. At one point in his testimony he did allow their truth but repeatedly he denied them or interpreted them differently. It was clear that his evidence given on oath before us does not support all the allegations set out. Doherty's evidence of the contents of the phone call between Dyas and the grievor is highly suspect and contradicted by the testimony of Dyas. If, on a motion for non-suit, we are not to assess the credibility of the Ministry's witnesses, still, the grievor having called no evidence, and then being constituted . 12 as the triers of fact, wherein credibility can be assessed, we cannot say that all the allegations are proved to our satisfaction. Of the numerous allegations set out in the letter to the grievor, Exhibit 1, the Ministry appears to highlight as most important, l(e), that the grievor l'counselled inmate Dyas to fake a seizure so that he could be excused from reporting for his weekend sentence". The Investigation Report, Exhibit 18, titles the occurrence "Allegation by Inmate John Wayne Dyas that Nurse Cabon counselled him to avoid incarceration". In fact the evidence led goes the other way. It appears that the inmate asked Cabon about faking a seizure and Cabon counselled him against it since it could be dangerous to his health. When Superintendent Simmons was asked which allegation stood out on the list he said he did not rank them at the time but that 2(c), llcounselled inmate Dyas to put pressure on Mr. Commeford's wife" and 2(d) "informed inmate Dyas that you were going to cause Mr. Commeford and his wife some trouble" stood out. The evidence from Dyas was that the grievor "never suggested I put pressure on Commeford's wife" and never said that he was going to cause trouble but only that they could be in trouble in their handling of medical information. In examination-in-chief, Superintendent Simmons, dealing with allegation l(b), distinguished between a correctional officer advisinq an inmate how to communicate a complaint and counsellinq him to do it. On cross-examination Simmons allowed that the word J.J "counselled" was probably not Dyas' word. Allegation l(b), "counselled inmate Dyas to file a law suit", is clearly not in accord with the evidence. Dyas testified that it was Dyas' wife who brought up the thought of suing the Ministry for requiring Dyas to report the night of the eye injury. The grievor's only response, according to Dyas, was that such an action was feasible. Allegations 2(a) and, (b), that the grievor told Dyas that he'd complained to the Deputy Minister and that the grievor asked Dyas whether Doherty had interviewed him may be factual but we fail to see how they could justify dismissal. Allegations l(a) and (c) appear to be substantiated by Dyas' testimony. Dyas was on prescibed medication, librium and dilantin. According to .Dyas the grievor also told him that Commeford's wife worked at Scarborough General and was the source of knowledge about Dyas' medical condition. He was wrong to do this. Two very serious allegations have been made out to our satisfaction. We recognize how serious they are. We recognize that a correctional setting is vastly different from the ordinary work setting. We recognize how vital security is and how confidentiality is necessary. We also recognize that the grievor is an employee of long service with a clear record. From the evidence he appears to have been a caring nurse who perhaps cared too much and then overreacted to his being overruled in his medical judgment. Superintendent Simmons, Deputy Commeford and Health Care Co-ordinator D'Arcy focussed.on the security aspect 14 of the job. A nurse in a correctional setting faces a difficult task. In the Standards of Nursing Practice for Registered Nurses in the Ministry of Correctional Services of Ontario, (Exhibit 21) we read: 1.12 In the provision of health care within a correctional setting there are several important subsystems. Three of these are health care staff, custodial staff, and inmates. The different goals of the three groups provide potential areas for tension and conflict: the main goal of health care staff is to assist the inmate achieving and maintaining izalth: the main goal of custodia?staff is to maintain optimal state of order and security: and the main goal of most inmates is freedom at the earliest possible date, and in the meantime to gain whatever advantages are available under the conditions which prevail. The extent to which the health of inmates can be maintained or improved is influenced by the degree to which these goals are congruent. This case is an example of the tension .among the goals of the three groups who operate within the correctional setting. Nurse Cabon was counselled about his failure to follow procedures, which procedures were instituted out of concern for security and to ensure that inmates served the sentence of the court. He was obviously upset with his judgment being overruled. Such a judgment had never before been reversed. He was concerned with respect to what to him were apparent breaches of medical confidentiality. Nevertheless there were other avenues for him to explore to remedy any believed hurt. He ought not to have confided to an inmate his beliefs of wrongdoing by the Deputy Superintendent and his wife and discipline is necessary to communicate that his action was a serious breach of institution security and damaged the fidelity and trust essential to the employment relationship. 15 Most of the allegations relied on by the Ministry have not been made out and we find the discharge is not justified. On the last day of the hearing, following an executive session, we advised the parties that the grievor should be restored to his position forthwith. We do however find that a penalty is justified and order a suspension without pay for a period of one month. That suspension we take it as served during the month following his wrongful termination. Aside from financial benefits arising out of that period we order that the grievor be compensated for all benefits lost. We will remain seized pending any difficulties in measuring that compensation. Dated this 30th day of September,'l986. Vice-Chairman R. Russell Member A. Reistetter Member