GSB#2003-1461

UNION#2003-0329-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Press)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ed Holmes Counsel Ryder Wright Blair & Holmes

FOR THE EMPLOYER

Suneel Bahal Counsel Ministry of Government Services

HEARING

December 15, 16, 2004 September 13, 28, 29, October 25, 26, November 7, 8, 2005 March 23, April 19, June 14, August 16, 2006.

Decision

The grievor, Keith Press is employed as a Registered Nurse at the Mental Health Centre Penetanguishene at the Oak Ridges Division. On January 24, 2003 he was suspended with pay pending investigation of allegations of patient abuse on Ward 7, the admissions ward. Ultimately he was cleared of all allegations and returned to work. However, it is his claim that, as a result of the deliberate failure on the Employer’s part to follow its own policy and procedure respecting the preliminary stage of the investigation into these allegations, he has suffered public humiliation, emotional distress and irreparable damage to his life, including the enjoyment and fulfillment he had enjoyed as a nurse. He has grieved the suspension on those grounds and asks for damages to compensate him for the harm that was done.

His grievance alleges a violation of article 9.1 of the collective agreement

The Employer shall continue to make reasonable provision for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of its employees.

FACTS

Oak Ridge Psychiatric Hospital is a maximum security facility operated by the Ministry of Health and Long-Term Care, which has the capacity for 125 patients, although in more recent years that occupancy rate has decreased. The wards are divided into programs. Ward 01 and 02 are included in the Active Socialization Program. Ward 1 contains volatile patients who are ready for therapy, including group therapy, and discharge planning. Wards 4 and 5 are located side-by-side and are part of the Independent Living Program for clients who are considered to be model clients and who have greater privileges. They are stable on medication. Generally, they have been diagnosed with some form of personality disorder and were described by the grievor as being challenging. Wards 5 and 8 are designated for the Structured Intervention Program for the cognitively impaired patients. These patients are often self-abusive and require structure and direction. The last unit, Ward 7, is part of the Forensic Assessment Program, or the admission ward. All new clients are admitted to this award and can be classified as NCR (Not Criminally Responsible) or D. O. (Dangerous offender). They have been admitted involuntarily because it is feared they will be a risk to themselves or to others or they are unable to take care of themselves. Sometimes clients are unable to give instructions to counsel during court proceedings and they are admitted for assessment. The average stay on Ward 7 depends on the reason for the admission, available beds and a general reluctance to discharge a client who has nowhere to go.

The grievor began working for the Ministry of Health in 1979 as an unclassified correctional officer. In 1980 the Employer sponsored him in the Nursing Assistant program offered within the facility and in the spring of 1981 he won a competition for a classified position as a Registered Nursing Assistant on Ward 07. He worked in that position until 1987 when the Employer paid his full wages while he attended Georgian College to receive a nursing diploma. While he was attending school he worked at the facility during the summer months and during the school breaks. In 1990 he graduated as a Registered Nurse and worked in that capacity until the events giving rise to this grievance. As a registered nurse his level of responsibility increased considerably over time and included assessing, evaluating, treating and maintaining patient care plans for each patient. As an R.N he was responsible for administering all medications and treatments, consulting with physicians as part of a multidisciplinary team, acting as a patient advocate and fulfilling a security role. R.N.s were designated Team Leaders or Charge Nurses and at times would be designated Nurse Managers when the Nurse Manager was absent. The grievor was highly regarded as a registered nurse and fulfilled all of these roles during his employment. He explained that there was no extra pay for the added responsibilities and therefore it was not regarded as a coveted role by most of the other registered nurses.

With respect to his security duties, it was often necessary to put patients into restraints. When that happened the staff was required to fill out an incident report, note what had happened in the patient's file and report the event to the shift Nurse Manager. The Nurse Manager then was responsible for interviewing the client to assess whether he had sustained any injuries and interviewing the staff involved. When the versions of the participants and the staff members involved seemed to be inconsistent or in conflict, the Nurse Manager was responsible for investigating those inconsistencies. The incident report would then be forwarded to the Ward Supervisor, to the Unit Coordinator, the Chief Nursing Officer, and, finally, to the Clinical Director, Dr. Jones.

As far as the grievor was aware, the Employer held him in high regard. He was a good nurse and had fulfilled a number of administration roles over the years. His evaluations had been exceptional and it had been noted that he was efficient, effective and skilled in dealing with unmanageable clients. He was known to be a leader. In fact, an evaluation done six months before this incident had noted that the grievor was respectful maintained a safe environment and was capable of applying restraints without injury.

He became aware of rumours circulating about an investigation over allegations of patient abuse. His name was one of the names being mentioned in these rumours. Sometime in December of 2002 he was told that Mr. Michael Fournier, the Ward Manager, and Ms. Donna McLaughlin, the Director of the Forensic Assessment Program, would be conducting the investigation into these rumours and would be interviewing all of the staff on the Forensic Unit. He was told by Mr. Fournier that this would be a preliminary investigation.

Rumours continued to circulate but now they included specific mention of the grievor. Three staff people told him that Diane Desjardin, another RN on the Unit, had reported some staff in the Forensic Unit to management and that he was one of the staff she had named. He did not know whether it was as a suspect or a witness.

Those rumours caused him great concern and he approached Mr. Fournier to ask whether they wanted any clarification from him about these rumours. He offered to be available to answer any questions they might have that could help their investigation. He also reminded Mr. Fournier about the need for confidentiality and told him that if he had concerns about him, he should speak to him directly and not be influenced by the rumours.

Mr. Fournier looked uncomfortable. He acknowledged that the grievor’s name had come up during the investigation but refused to tell him what had been said and by whom. Mr. Fournier also tried to raise some long-standing performance issues but, when the grievor asked why these concerns had never been raised during his performance appraisals, Mr. Fournier refused to elaborate.

On January 7, 2003 the grievor met with Mr. Fournier and Ms. McLaughlin as well as Mr. Bill Playton, a Union Steward. At the request of the Union the Employer had provided those being interviewed with the following questions in advance of the meeting

The College of Nurses professional standards and ethical framework states it is our responsibility to create an environment that promotes and supports safe, effective and ethical practice.

It has come to my attention that there are areas of concern regarding the nursing practice on 07.

1. Can you describe the (your) work environment on 07. Do you have any concerns regarding the nursing practice on 07.

2. You are familiar with P-9 Aggressive Behaviour Management. Do you have any knowledge or have witnessed excessive force when restraining a patient. (sic)

3. Do you have any knowledge or have witnessed teasing or goading of patients. (sic)

The grievor responded as follows:

1. I work in a cooperative environment. I have no concerns at this time. Any concerns have been in the past. I spoke directly to you about them. No concerns about nursing practice.

2. I have not witnessed any excessive force being used.

3. No, I have not.

No other questions were asked and no other information was exchanged during the meeting. The grievor was not told the subject of the investigation nor the reason he was being questioned specifically. At the conclusion of the meeting the grievor was concerned about the vagueness of the questions but did not believe they pertained to him. He had done nothing wrong and believed he was being interviewed only as part of the process.

The grievor left the meeting alarmed that Mr. Fournier had not given him any information and disheartened by his refusal to be forthright. On January 20, 2003 he had a conversation with Dr. Jones in which he asked him for information about the investigation. Dr. Jones would not comment on the investigation but told the grievor that he knew he was a nurse in good standing and he should not worry because they were only collecting data. He felt somewhat relieved but told Dr. Jones that he was disheartened about the way he had been treated. He thought they had valued his service in the past and his willingness to work extra shifts when asked. He repeated his offer to be available to answer any questions.

After the meeting he tried to piece together the significance of the meeting and the next day he wrote a letter to Mr. Fournier and Dr. Jones, dated January 21, in which he stated as follows:

I spoke with you on January 20, 2003 to express how disturbing and stressful it is with rumors and information circulating about the building from reasonably reliable sources. I expressed my concern about the confidentiality of these matters. You indicated that my name had been mentioned but that the process was clearly data collection at this point. I mentioned that I would address openly any concerns if given the opportunity. I have always been approachable with my colleagues and supervisors. I expressed concern at your suggestion that some issues are longstanding, however if any pertain to me I have never been informed or given the opportunity to address same. I expressed my concern that it seems unjust to be unaware and unable to address matters when they have been held from your awareness. You claimed you would keep me up-dated as you are able to. I have demonstrated my dedication to this organization on countless occasions over my 22 years of employment (ie: leadership roles, team leading, acting nurse manager, acting shift manager). I find these matters disheartening, a discredit, and have real concerns about how this hidden agenda is being managed.

My intention for our discussion today initially was to request to be placed on Team A, that schedule would allow me to meet some family commitments in the future. As in the past, I would be willing to work split shifts, day shifts with evenings next day (vice, versa) in order to help you balance the counts. Please give me you response in writing.

Four days after that meeting, on January 24^th he was escorted from the premises. At about 1500 hours, Mr. Fournier asked him to come to Dr. Jones’ office. He was shocked and asked if he could bring a Union Steward. Mr. Fournier did not respond and the grievor told him he would not go to any meeting without a Union representative. Mr. Fournier said that was his problem, but then agreed and the grievor followed him to Dr. Jones office and joined John Lenio and Ray Walton, two nurses from the Forensic Unit who had also been accused of patient abuse. They were led to the Board Room and, one at a time, were escorted to Dr. Jones office, beginning with Walton, then Lenio and finally the grievor. While he was waiting, he asked Ms. McLaughlin if he could have legal representation. She said no, that this time they were going to do it this way. He saw Mr. Walton leave and was alarmed by his facial expression. He knew something significant had happened.

Present in Dr. Jones’ office were Martha McDonald and Al Donaldson, Union Stewards, Joan Duncan and Dr. Jones. Dr. Jones told the grievor that he was being suspended with pay pending formal investigation of the allegations. He told him that the police had been notified and would be contacting him for questioning. He told him that the College of Nurses had also been notified but not what had been relayed to it. He was told that the families of the clients who had been involved had been notified but he was not told who they were or what they had been told. He was asked to surrender his name tag and told that he was not permitted to enter the facility or the grounds while under suspension. He was told not to have any contact with any staff members of the forensic unit. The grievor asked whether he could ask some questions. At first Dr. Jones refused but then he consented and the grievor asked him what the actual allegations were against him. He was told they were not prepared to give them to him at that time. He then asked whether, after he had been cleared, this suspension would be removed from his file. He was told they would wait and see. Finally, he asked what they would do to restore his reputation when this was all over. He was told they would do the best they could. He was given the following letter:

Re Allegations of patient abuse

Serious allegations have been made regarding the nature of your interactions with some patients on Ward 07 at Oak Ridge. These allegations of patient abuse have been subject to a preliminary investigation.

I have directed that a comprehensive investigation into these matters begin immediately.

Effective immediately, you are suspended with full pay, from your duties at the Mental Health Centre. You are directed to surrender all Mental Health Centre keys and identification tags in your possession. Excepting with the express consent of a Senior Manager, you are not permitted on the grounds of the Mental Health Centre until further notice.

This suspension and all directions associated with it, will continue until the completion of the comprehensive investigation.

I am seriously concerned at the potential for intimidation of individuals involved in this investigation. Accordingly, I am directing that you not have any contact, direct or indirect, with any member of the Forensic Assessment Program staff, or with any patient of this facility. Any failure to comply with this directive will be dealt with in the most serious manner.

Thank you for your anticipated cooperation with this investigation. You will be contacted in due course regarding further developments.

During this meeting he was not given any specifics about the allegations, the clients involved or the people who had filed the complaint. Mr. Donaldson met with all three employees but could give them no further information since he had not been told any more than they had been told. After that meeting they were escorted by Dr. Jones to an area outside the Forensic Unit and told to gather their belongings. The grievor asked him to unlock the closed area of the Unit so he could collect his things and was told he could not go in and that Dr. Jones would get them for him. The three employees were then escorted to the main entrance, past two gates and past 2 or 3 managers. The grievor was told they were there in case they refused to leave. The grievor felt insulted. He walked out the front door to his car in shock. He was embarrassed and ashamed. It was clear to anyone who had seen him escorted from the building that something significant had happened. He knew that within an hour, everyone in the facility would know. He stood by his car in disbelief. He was frightened and almost physically ill. He felt an overwhelming feeling of anxiety as he drove home. The following days were very uncomfortable. He had to try to explain to his wife what had happened. He tried to carry on as usual in front of his children. He was stressed and had trouble eating and sleeping. He felt overwhelmed and powerless. He spent the weekend trying to remember whether he had done anything to warrant the treatment he had received. He had been at this facility for 22 years and had never seen anyone escorted from the building. He felt he had nowhere to turn and went to see his family physician, Dr. Zwicker, who prescribed medication for his nerves. He discovered after he had left the facility that Dr. Jones and Ms. Duncan had told the staff on the forensic unit that the three employees had been escorted from the building pending investigation.

The grievor had no further contact with the Employer except for a letter dated January 28, which he received some time in February and which read as follows:

Re: Preliminary investigation into allegations of patient abuse on Ward 07

On January 24^th I received a report of the preliminary investigation into allegations of patient abuse involving several patients on Ward 07. This investigation was conducted by Mr. Mike Fournier, Ward Nurse Manager, and Mrs. Donna McLaughlin, Coordinator, Forensic Assessment Program.

Based upon the findings of the preliminary investigation it is my opinion that a further investigation should be undertaken.

In summary, the allegations are:

1. That you were one of a group of individuals that assaulted MW, and that you falsified the record of these events.

2. That you were one of a group of individuals that assaulted patient AS

3. That you were one of a group of individuals that assaulted patient MS.

These allegations arise as the result of the direct observation of these events by staff of the Mental Health Centre.

These allegations are extremely serious patient abuse, and they have been made by credible witnesses. A comprehensive investigation into these allegations, and any other related issues that may arise during the investigation, is warranted and will begin shortly. You will be advised when your participation in these events is required.

I appreciate that being involved in an investigation of this nature may be very disturbing. We will attempt to complete this investigation as quickly as possible given the issues at hand.

This was the first time the grievor was given any details about the specific allegations against him and the first time he was told the results of the preliminary investigation. He read the allegations and tried to remember, without success, any involvement in the incidents outlined in the letter. He was alarmed at the use of the word “assault”, which had never been used before in any discussions with the Employer. Patient abuse could consist of yelling or not responding promptly to a patient’s request. It can and usually is verbal. Assault, on the other hand, suggested physical harm, which is never warranted in any situation. He was concerned that criminal charges might follow and decided to consult a criminal lawyer. He and his spouse tried to explain to his 5 children what had happened but he was unable to understand what was happening himself. He spoke of the events in general terms and told them everything would be fine. There was nothing more he could do. Then he contacted the Union to ask it to obtain disclosure of the allegations and witness statements.

On February 19th the grievor received a copy of the preliminary investigation. In fact, he received 2 copies, the first erroneously containing the names of the witnesses, the second, edited to remove those names. Accompanying the report was a letter from Dr. Jones extending his suspension with pay for another 4 weeks.

The report itself contained details about the alleged abuse including names and dates. I am only including references to these allegations as they relate to the grievor and have decided to refer to the patients by initials to protect their right to confidentiality.

The first one concerned an alleged assault on MW and stated, in part, as follows:

…John, Rob and Keith jumped him and pinned him up against the wall, choking him. Dave W was there but did not get involved in the incident. The record is falsified and does not reflect what actually happened. M was kept in seclusion and they made it a point to keep him in seclusion.

M was kicked and punched and put into seclusion because they did not like how long he was taking in the dining room. Rob, Keith and John were all in on it and M didn’t do anything.

Another allegation involved AS and stated as follows:

Rob, Keith and John teased AS to the point that he threw a pillow out of frustration. They pinned him to a chair to the point of breaking the chair, throttled him, kicked him in the testicles and secluded him.

AS was beaten and kicked. How do you think he got that burn behind his ear, and his ribs. Keith and Rob beat him. ML was witnessed (sic) and he will tell you. Poor AS was taunted, teased and harassed. They pick on the lower functioning patients, the ones that can’t defend themselves. They would feed AS to the point of vomiting.

AS was jumped and roughed up. He was sent to his room with a punch to his back. I do not remember who gave the punch.

There were several additional complaints that did not directly name the grievor and I have not included those details in this award. There were notations from staff members about the poor morale on the Unit, criticisms from staff members about other staff members, failure to recognize some staff members, personality clashes and negative attitudes. The report, however, concluded with the following comments:

Twenty-four (24) nursing staff and six (6) clinical staff were interviewed. Six (6) of the nursing staff approached Mike Fournier outlined in the anecdotal notes. The above is a summary of content, quotations are used where possible.

We feel the events described above are highly suspected to be true and recommend further investigation.

The grievor was somewhat relieved when he read this report. He was not at work on some of the days these incidents were alleged to have occurred. For example, on October 24, 2002, he had worked earlier in the day but had left before the alleged incident. When asked how the Employer would know that, he replied that there are several documents that would have shown his absence at that time. There is a sign-in sheet at the front office that all employees entering the building are required to complete. There is a Daily Activity Sheet that showed he was off duty at 1500 hours. The Shift Supervisor has the master schedule and the Nurse Manager has a copy of the workload measurement that contains the number and names of the staff at work. Mr. Fournier would have had access to all of these documents. It was also comforting to the grievor to know that he was on vacation when another incident was alleged to have occurred.

That comfort was soon shattered when an article in the local newspaper reported the events at the Mental Health Centre. Although the grievor was not mentioned by name he was approached by many people, including staff from the Centre, about the newspaper article. He had been told not to discuss the matter and was worried about what he could or should say. He began screening his phone calls because so many people were asking for details. He and his family were well known in the community and he was concerned that the damage to his reputation would be permanent.

Attending the meeting on February 25^th, were the grievor’s criminal counsel, Mr. Peter Hart, Al Donaldson and Martha McDonald and Mr. Burke Thompson and Mr. Dave Hunter. The latter two had been called in to conduct the independent inquiry into the allegations. Mr. Thompson had been an employee of the Centre as a part-time Shift Supervisor and part of the management team. Mr. Hunter was an RN from another facility. Initially they met as a group at the Huronia District Hospital and were given a general review of the reasons for the meeting. They were given an hour to peruse the files and incident reports to help them prepare. The grievor noted that there was no incident report for the October 24th incident and, when he asked for it, was given no explanation for its absence. He explained that incident reports were required whenever anything unusual or untoward happened in the facility. It was extremely unusual to find one missing regarding an incident so serious. The patients’ files also contained no information about the allegations.

The grievor then met with Mr. Hunter and Mr. Thompson. He asked them if they were aware that he had not been in the building when some of the events were said to have occurred. He showed them his work schedule noting his time off. He was told they knew he had not been there during some of the incidents. When the grievor asked why the allegations were still on his record, he was told it was part of the process. The meeting was short and no further interviews or meetings were held to discuss the allegations or his suspension.

The grievor was upset because he had reviewed the Operational Policy regarding the Investigation of Allegations of Patient Abuse and was certain that, had they followed their own policy, specifically the portion of the policy related to the preliminary investigation, he would have been exonerated immediately and would not have been subjected to the suspension and the public humiliation that followed.

That policy is dated August 2000 and, because the grievor relies heavily on the Employer’s failure to adhere to its own process as grounds for his claim for damages, it is necessary to reproduce that portion of its policy in detail:

REASONS FOR POLICY

To ensure that alleged incidents of patient(s)/consumer(s) abuse are investigated in a consistent and timely fashion, and that the rights of patient(s)/consumer(s) and staff are protected during the investigative process.

APPLICIABILITY

Applicable to all staff and patient(s)/consumer(s).

POLICY STATEMENT

Mental Health Centre Penetanguishene does not tolerate patient/consumer abuse. Allegations of patient/consumer abuse in any form are taken seriously and will be investigated. The following procedure will be initiated, acknowledging that staff are entitled to due process.(sic)

PROCEDURE

The procedure is divided into three major sections:

1. Reporting

2. Preliminary investigation.

3. Formal investigation

I REPORTING

Any person observing patient/consumer abuse will report it to the immediate supervisor. The responsible Department Head/Program Director will notify the Administrator/Associate Administrator (or delegate) immediately that an allegation has been made. Accused staff will be notified as soon as possible of the full allegation. It is imperative that notification be given verbally and in writing even when staff are off duty and that this occur before the preliminary investigation is begun/initiated.(sic)

Where an allegation of abuse is received after six months since the alleged incident occurred, such an allegation must also be reported to the Administrator/Assistant Administrator (or delegate) directly.

II PRELIMINARY INVESTIGATION

The Administrator/Associate Administrator (or delegate) is notified and ensures that a preliminary investigation is initiated and completed as soon as possible. The purpose of the preliminary investigation is to gather facts and obtain objective information, not to make a decision. The first appropriate level of supervision above the accused staff shall carry out the preliminary investigation.

A INVESTIGATION

The investigator will inform any involved/relevant staff that he/she may have union and or legal representation throughout the investigation procedure. These staff may waive in writing the right to representation.

The clinical team and/or physician need to be consulted about the patient/consumer’s mental condition throughout the entire process.

The investigator will follow these steps in conducting the preliminary investigation:

1. Ensure that in all cases of physical and/or sexual abuse, a medical exam is conducted immediately by a physician and that photographs are taken as necessary. The physician will make the report of the physical exam available to the investigator.

2. Inform the patient/consumer that he/she may have the Patient Advocate and/or the Police present.

3. Interview the patient/consumer in the presence of another staff.

4. Interview staff involved and acquire written statements within 24 hours. It is expected that staff will cooperate.

5. Interview other patients/consumers and staff witnesses.

6. Consult all available records including patient/consumer’s file (obtaining Form 14 to review), timetables, charts, incident reports concerning the date, time and place of the alleged incident.

7. The investigator will use the least intrusive means to ensure identification of accused staff. Under no circumstances are staff to be subjected to line-ups. (sic)

B PRELIMINARY REPORT

The investigator will provide the Department Head/Program Director involved with a written preliminary report. The Department Head/Program Director will hand deliver this report to the Hospital Administrator/Associate Administrator (or delegate). The Hospital Administrator/Associate Administrator (or delegate) will provide summary reports to the staff involved, the union/legal representative, the patient/consumer and his/her representative.

The preliminary report will include:

1. A description of the allegation (who, what, when, where).

2. Information used to positively identify staff involved.

3. Written statements from patient/consumer and staff witnesses if provided.

4. Statements indicating if any witnesses chose not to provide verbal or written information.

5. Photographs, if appropriate, record of physical exam and any other records that are relevant.

6. A summary statement of the investigation that does not include a decision.

The Administrator’s/ Associate Administrator’s (or delegate’s) report will include Items 1,2,4 and 6 as described above.

C DECISION RE: PRELIMINARY INVESTIGATION

Based on the findings of the preliminary report, the Administrator/Associate Administrator (or designate) will decide:

1. Whether sufficient evidence exists to substantiate an allegation of abuse; and or,

2. Whether further investigation is necessary and appropriate:

3. Whether to involve the Police in further investigation, thereby providing the patient/consumer with the protection afforded under such Acts as the Criminal Code.

Where allegations of abuse are investigated, the relatives, personal representatives or guardians should be notified of the allegations, where, in the judgment of the Administrator/Associate Administrator (or delegate), it seems appropriate to do so and in accordance with the patient/consumer’s wishes.

The Administrator/Associate Administrator (or delegate) will inform the patient/consumer(s) and staff involved of the results of the preliminary investigation in writing (provided a summary report). At this time, the Administrator/Associate Administrator (or delegate) will tell both patient/consumer and staff if there will be a formal investigation.

D FILING OF THE PRELIMINARY REPORT

The Administrator/Associate Administrator (or delegate) will not place any information on the staff’s corporate file until all investigations are completed and decisions made.

If the investigation stops at the preliminary stage because insufficient evidence precludes calling for a formal investigation, the preliminary report and all of the information included will become part of the Administrator’s confidential file only.

E ADMINISTATIVE ACTION RE: PRELIMINARY INVESTIGATION FINDINGS

1. The Program Director and Department Head involved (or delegates) shall take immediate temporary action to minimize the contact between patient/consumer and accused staff. The least intrusive method appropriate under the circumstances will be used.

2. The Administrator/Associate Administrator (or delegate) may suspend the employee(s) without pay. (Refer to Public Services Act, Section 22 (1).

3. Any employee under investigation must not discuss the incident with the patient/consumer or other staff.

4. The Administrator/Associate Administrator (or delegate) may report to the Police at any time. This should be done based on the gravity of the situation and the available evidence.

The remainder of the policy pertains to the formal investigation and, for purposes of this hearing, is not relevant to the grievor’s claim for damages.

It was the grievor’s position that the Employer failed to follow its own policy with respect to the preliminary investigation. He was not notified of the full allegations against him before the preliminary investigation, either verbally or in writing. He believed a physician interviewed everyone involved but he was never told about these interviews or medical exams, if any. He was never asked to provide a written statement within 24 hours as required under the policy. He was not told whether there had been any review of time schedules or work assignments that would have established who was on duty at the time of the alleged incidents. He was not given the incident reports that he had been told had been completed concerning these alleged acts. During the meeting on February 25^th, Mr. Walton told him that he had filed an incident report but that report was never produced, then or during this arbitration proceeding. He was not given any alternative with respect to less intrusive action the Employer could have taken at the time. He believes he could have been assigned to duties not involving patients, such as the front office. The Employer had, as part of the policy, an Investigation Complaint Check List which, in addition to listing the date, nature, patient and staff involved in the complaint, sets out the following guidelines for the person conducting the investigation:

Patient/ Staff’s safety is Assured

Advised appropriate persons

Consulted with appropriate persons

Started necessary paperwork

Determined nature and length of time needed to complete any investigation

Follow-up with persons who brought complaint forward to advice of status of actions begin (sic) taken.

Advise all relevant staff/persons of who is conducting any investigation.

Review issue and consult with others to determine if others should be advised.

Follow-up to ensure that investigation is being completed within established time frames. If not, consult with managers and re-negotiate deadlines. May require additional notice to persons who brought complaint forward.

Review all material, including any investigation to determine if others need to be involved or if other material/information is needed.

Consult with manager etc. to determine what action should be taken.

Advise complainant and where appropriate and others of outcome.

Ensure outcome is communicated and implemented.

The grievor was familiar with this checklist from past experience as a Nurse Manager. He believes that, had the Employer followed this checklist, they would have realized at the outset of the preliminary investigation that he was not involved in the alleged incidents.

The grievor also spoke to an Ontario Provincial Police constable, Dave Falls, who told him that there were no grounds upon which criminal charges could be laid and that there had been credibility issues concerning the witnesses. He was given a summary of the OPP investigation verifying what he had been told. In that report, it was noted that the grievor had not been on duty when the incident of October 24^th had taken place and that, with respect to the other alleged incidents, there were problems in the accounts of the witnesses that had to be reconciled before they could be deemed credible.

The process of a preliminary investigation requires the person doing the investigation to review all incident reports on file concerning the allegations. In all of the cases of alleged patient abuse, an incident report would have been mandatory but the grievor was not given any copies of any incident reports. He saw an incident report about the AS incident but did not know whether a doctor had been called. He was not told whether an investigation had been conducted following the incident report.

The next communication between he and the Employer came in the form of a letter dated March 13, 2003 from Dr. Jones informing the grievor that he had, the previous day, received the report of the formal investigation and, after consultation with the Chief Nursing Officer had concluded as follows:

…it is my opinion that there is not sufficient evidence, in relation to the specific allegations made against you as contained in my letter to you of January 28, to warrant a disciplinary hearing. However, I do find sufficient evidence to conclude that you have failed to comply with hospital policy, and to maintain acceptable standards of practice in specific areas and, in relation to these findings you should expect remedial action to follow.

Accordingly by way of this letter, I am directing that you return to full-time duties at the Oak Ridge facility beginning Tuesday, March 18, 2003. Pending further discussion with you regarding work assignment, you have been scheduled to the “B” team on Ward 6. I have directed that you be off count for two days in order to ensure that you are able to orient yourself to this assignment.

I am pleased that this phase of the investigative process is over, and that the outcome is that you are once again in the workplace. I realize, however, that you are likely to have mixed feelings, pleased on the one hand that you have been substantially vindicated, but angry at what you have had to endure these past several weeks. I hope, in due course, that you are able to understand why keeping you away from the workplace was the best course of action throughout.

The grievor did return to the facility on March 18^th and met with Dr. Jones. He asked for examples of his failure to comply with hospital policy and to maintain acceptable standards of practice. Dr. Jones did not answer. He asked why he was being assigned to Ward 06 instead of going back to Ward 07. Again, no explanation was given. The grievor was also uncomfortable with the phrases “insufficient evidence” and “substantially vindicated” and did not feel as if he had been vindicated at all. The grievor felt the transfer had been disciplinary. As a result of the grievor’s concerns, it was Dr. Jones decision to place the grievor on paid administrative leave until these matters could be resolved.

The grievor wrote a letter to Dr. Jones that day in which he stressed that the outcome of the investigation had provided him with only a modicum of relief. His letter stated, in part, as follows:

As a regulated health professional, I can appreciate that you had an obligation to conduct an investigation into this matter. What cannot be understood, however, is the adverse and traumatic affect this ordeal has had on my family, colleagues, friends and, most obviously, myself. The irrevocable damage to my professional reputation and credibility that has resulted from these vexatious allegations has left me at a loss in terms of how best to deal with some of the unresolved issues bring closure to the matter and effectively reintegrate myself into the workplace.

He then asked for the correspondence and notes regarding the investigations conducted by Thompson and Hunter, a copy of the Administrator/Associate Administrator’s explanation of the results of the Formal investigation, full disclosure of the evidence that he failed to comply with hospital policy and maintain acceptable standards of practice, an explanation of why he received no support or contact by or with the Employer during his suspension, an explanation of why the Union received no response to its repeated requests for information, an explanation for the arbitrary assignment to Ward 06 and details of the obligation the Employer had to deal with the individuals who had made false accusations against him. In addition he wanted assurances that all references and correspondence related to the investigation be removed from his corporate file, that all information forwarded to the College of Nurses be rescinded with a written retraction and that the entire facility be notified of his absolution of the false allegations. Finally, he reminded Dr. Jones of his question about what they intended to do to restore the damage to his reputation.

Dr. Jones responded to that letter on January 24^th by acknowledging that they had agreed the grievor would not return to work until the specifics of the reference to hospital policy and standards of practice had been provided to him, but went on to advise the grievor that, while some practices with respect to seclusion/restraint and documentation required review and educational intervention, there was no indication in the grievor’s practice that would identify the grievor as requiring specific remediation. He then instructed the grievor to return to Ward 06 on March 27, 2003. With reference to the grievor’s specific requests, Dr. Jones stated a copy of the formal investigation was attached to the letter, that the explanation of the results of the formal investigation had been provided in the letter of March 14, that no reference to the investigation would be placed on his corporate file and that no information had been placed before the College of Nurses. With respect to the lack of support, Dr. Jones stated that he had only received one other letter besides the one he was responding to and was unaware of any other memos or letters that had been ignored. He acknowledged that he had made no effort to maintain an ongoing dialogue during the grievor’s suspension however, at the initial meeting in which the grievor had been suspended; he had expressed his concern and support and recommended the EAP. Whenever he did communicate with the grievor he tried to be supportive and concerned while maintaining a business-like demeanour. His assessment at the time was that the grievor would not be comforted by contact with the Employer while he was under investigation.

With respect to the grievor’s query about his assignment to Ward 06, Dr. Jones stated that the decision to do so had been made after consultation with line and senior managers and in consideration of affording the grievor a smooth return to work and in support of efforts to return Ward 07 to normal operation with a minimum potential for conflict and distraction. Finally, with respect to the grievor’s concerns about his reputation, Dr. Jones stated that, although he had met with the staff on Ward 07 to advise them that some staff had been excused from work pending an investigation into patient abuse, he did not mention any names except to the management people necessary to conduct the investigation. He acknowledged, however, that the names of those who had been suspended had become public knowledge very quickly. Similarly, his return to work had become public knowledge and a meeting to announce his return would serve no purpose. His letter concluded with the following:

Keith, I regret that this investigation was necessary and that it has, indirectly, caused you and your family such distress. Certainly, my intention in conducting this investigation in the manner I have was to ensure the rights and safety of everyone involved; those against whom allegations were made, those who made them, the patients who allegedly victimized, and all the patients at Oak Ridge who require continuing care while this all goes on. I hope that, in time, you will agree that this was accomplished to the extent possible, and that you put this behind you.

The grievor responded to that letter on March 27^th acknowledging Dr. Jones directive to return to work but advised him that, on the advice of his family physician, he would be applying for the WSIB for additional time off to deal with the adverse effects the ordeal had taken on his health. He also acknowledged that Dr. Jones letter of March 24^th had gone” a long way” toward responding to his questions, and while he was heartened by Dr. Jones gesture to meet with the grievor, he disagreed with his comments about announcing his return to work. He maintained that his return was shrouded in misinformation about his alleged culpability. He was convinced that the allegations could have been vindicated at the preliminary investigation stage had it been carried out according to policy. If it had, he would not have had to endure the public embarrassment of being escorted out of the building. He stated he had other concerns about the manner in which the preliminary investigation had been conducted and suggested he meet with Dr. Jones to discuss those concerns.

It should be explained at this time the reason for these references to his damaged reputation and health issues. The grievor has lived in Penetanguishene, a community of 8,000 people, for all of his life. He was 43 at the time of the events giving rise to this grievance. He was very active in the community; he curled, played hockey and coached two basketball teams. He had been involved in the local police commission and was considering running for local council. His stepfather had been the Mayor and the grievor was often seen at his side during his four terms. His father was also well known in the area. The Town Clerk had approached the grievor about running for council but the grievor felt his candidacy would be sidetracked by the allegations against him. About 900 of the people in Penetanguishene work at the facility and his suspension was public knowledge. For the same reason he did not coach basketball that year. Many of the parents of the children on the team worked at Oak Ridge and the grievor was concerned about the questions he would have to face when he met with them. People were very direct in posing their questions and the grievor had been instructed by Dr. Jones not to discuss the matter. The grievor felt he could give no details and chose to avoid being put in the position of having to respond. The grievor and his family were also regular attendees at his church and he was known as the father of 5 children. It was his opinion that, as a result of the Employer’s actions in escorting him from the building and suspending him pending investigation, his reputation in the community had suffered irreparable damage, damage that could and should have been avoided if the Employer had followed its own policy properly.

It was also the grievor’s position that as a direct result of the Employer’s actions, he suffered emotional damage that resulted in serious health issues for him and for his family. Those health issues began in 2002 when his father, after a lengthy and difficult fight with depression, committed suicide. The details of his death are not necessary except to note that after his passing, the grievor sought medical intervention to help him deal with the aftermath. At first he saw his family physician, Dr. Zwicker, who prescribed an antidepressant and a sleeping pill. The grievor, however, was not happy taking the medications and was referred to Dr. Hector, a psychiatrist, for psychotherapy, who recommended that he be off work from March to September for treatment. After one month of counselling, the grievor decided he would prefer to be back at work rather than sitting home in isolation. While he had been off on sick leave, the members of the bargaining unit had entered into a strike. When the grievor returned to work the strike was ongoing but he was designated an essential worker and allowed to return immediately.

Dr. Hector testified for the grievor. He began his practice as a psychiatrist in 1966 and worked as the senior staff psychiatrist and then Psychiatrist-in-Chief at the Wellesley Hospital from then until 2000. From 1993 to 2000 he was also the Staff Psychiatrist and Clinical Director of the Oak Ridge facility. From 2000 to 2004 he was the Psychiatrist-in-Chief at the Royal Victoria Hospital in Barrie. He first met the grievor as a member of the nursing staff at Oak Ridge. He described him as an exceptional nurse with excellent relationships with the patients and his peers. He had also treated the grievor’s father during his illness, including the period just before his suicide. He stated that, because of his familiarity with mental disorders, the grievor was the primary family contact and he provided support and direction to his father and his family during the lengthy illness. His suicide was a shock to the grievor, especially since he was the one who discovered his father and who tried to shelter his family from the details. He went to work very quickly after his father’s death but continued to suffer emotional distress trying to determine what had driven his father to this final act.

Dr. Hector first saw the grievor in relation to these events on November 6, 2003. He described the events of the 10 months previous and, in particular his humiliation and devastation at being escorted out of the building. He told Dr. Hector that he had been vindicated eventually but on the advice of his family physician he had not returned to work in March as requested. Dr. Zwicker had referred him to Dr. Desjardins, a physician who was employed by the Mental Health Centre. She saw the grievor from March until late fall when she referred him to Dr. Hector. At the time the grievor had been off work without pay and was in financial distress. Dr Hector observed that he was in a major depression with a marked lowering of mood, pronounced lassitude, lacking energy, impairment of sleep pattern, absence of motivation, loss of interest in things he had enjoyed and a marked loss of weight. Even though Dr. Hector advised him to stay off work the grievor told him that he had returned to work four days previously for financial reasons. His return was subject to restrictions. He was to have no patient contact and was not to be involved in any restraint procedures. He was situated in an office beside the office of the Clinical director, which he found distressing because he was working around the people who had put him through hell. He stated that he intended to sue the Employer for damages to his reputation and his family over these allegations. He said the only reason they thought he was involved was because he was always with the other two suspected abusers. The Employer refused to acknowledge that they owed him anything but he was determined to restore his good name.

Dr. Hector next saw the grievor on December 3, 2003. It was apparent to him that the grievor’s grief at the loss of his work and reputation was equivalent to and exacerbated by the unresolved grief at the death of his father. Dr. Hector prescribed some antipsychotic and antidepressant drugs, which the grievor reported a month later, had not been effective in resolving his state of mind. He reported at that time that the Employer had suggested that he had come in on his day off, which he stated was ludicrous. He raised concerns about his relationship with his spouse and acknowledged the impact his exhaustion, irritability, depression and emotional withdrawal had and was having on his children. He spoke about the College of Nurses and the fact that he could do nothing to stop their investigation and the fact that the WSIB had denied his claim for benefits. He repeated his concern about the effect this had had on his spouse.

He was next seen on March 22, 2004. He told Dr. Hector that he had been reassigned to the Regional Division of the Mental Health Centre and that, while things had settled down, he continued to feel frustrated and impotent. He was unable to support his increasingly critical spouse. He complained that some of his friends’ attitudes had changed during this process. He lamented the loss of his friends and the fact that he had to give up his social activities, like curling. He resented the fact that the Employer expected him to return to work as if the past months had never occurred. At his next appointment on July 27, 2004, the grievor stated that there had been no change. However, his lassitude and inertia had diminished due to an opportunity to apply for the Employee Health Nurse position. He seemed unable to sustain that improvement for long. On August 19^th, Dr. Hector recommended the grievor return to work in a nursing capacity.

His last visit with the grievor occurred in September at which time the grievor advised him that he would be starting a new position of Occupational Nurse and Infection Control Nurse. He was excited and thrilled with the opportunity to be educated for this new job. Dr. Hector concluded his treatment with the provisional and working Axis I diagnosis of Major Depression, secondary to loss of reputation as well as an Axis II diagnosis of Obsessive Personality.

In cross-examination he was asked about obsessive personality disorder. He explained that is a descriptive term and that there was no acceptable measurement to identify type. Persons diagnosed with this are usually perfectionists, wanting everything in its place. They tend to be very correct socially and are durable people who complete their tasks. However, or as a result, they cope poorly with stress and react with depression or anxiety. They often have difficulty adapting to change, especially in stressful situations. All of those descriptions were apparent in the grievor. It was a pre-existing condition that predated the events giving rise to this grievance. It was not surprising that he reacted so emotionally and personally to being escorted out of the building. Dr. Hector acknowledged that someone with obsessive personality disorder would tend to be introspective and perplexed by the actions of the Employer. They could be inflexible and refuse to accept anyone else’s view of the facts.

The grievor testified that the effects of this ordeal continue. He still feels resentment towards the Employer for the unnecessary pain and suffering he experienced at the time and today. He feels he must do everything perfectly otherwise someone will criticize his work or his nursing practices. He continues to feel victimized and persecuted. His relationship with his spouse has not returned to its previous state and he continues to mourn the loss of some of his friends as a result of the Employer’s actions. He maintains the Employer’s decision to return him to Ward 6 instead of Ward 7 was punitive and was a clear signal to the other staff that he had done something wrong. He filed this grievance because he wants his name to be publicly cleared. He wants it to be made public that he did nothing wrong. He wants punitive damages for the suffering he endures and continues to endure. He wants reimbursement for his legal fees and compensation for lost wages, specifically lost vacation credits. He wants his professional credibility restored. Finally, he wants a gratifying result so that he can put this incident behind him and go forward with his life. He also asked that Mr. Fournier be discharged for incompetence and for acting in an unprofessional manner. He believes he should be held accountable for the damage done by his improper investigation and should be disciplined accordingly.

In cross-examination the grievor acknowledged that he had been at work during two of the alleged incidents. He denied the suggestion that that fact explained why he could not be eliminated immediately from the investigation, stating that had they checked the time sheets, and satisfied themselves that he had been off the premises when some of the incidents were alleged to have taken place, they would have realized the unreliability of the accusers. He also acknowledged that complaints of patient abuse are serious and must be investigated thoroughly and that it was particularly so when the complaints come from senior nursing staff, but he insisted that a proper preliminary investigation would have cleared his name. He asserted that the preliminary investigation should have shown that the allegations were not credible and, in his view, should have shown that further investigation was unnecessary. He also disagreed that during an investigation into patient abuse, the alleged abusers should not be allowed in the building. He insisted that he could have been assigned to non-patient duties until he was cleared. When it was suggested to him that in the face of two eyewitness accounts from two experienced nurses, Dr. Jones had no alternative but to take action to protect the patients, the grievor stated that the two experienced nurses were new to Oak Ridge. He maintained that had the Employer conducted the preliminary investigation according to protocol, done a thorough investigation, interviewed staff and examined the patients it would have been clear to them that no credible basis existed to proceed to a formal investigation.

Dr. Zwicker is the grievor’s family physician and began seeing him in March of 2002 for a respiratory condition. In January of 2003 the grievor presented at his office exhibiting signs of extreme emotional distress. He was placed on an antidepressant but continued to do poorly. He diagnosed the grievor as suffering from Adjustment Reaction with significant depressive and anxiety symptomatology and possible major affective disorder. He noted that the grievor also had an obsessive personality, which caused the grievor to believe the unsubstantiated allegations were an attack on his character. Dr. Zwicker prescribed some medication to deal with those feelings, with poor results. Dr. Zwicker referred him to Dr. Hector but continued to see him for various physical problems. His notes of the office visits do not indicate any concerns about depression. The grievor seemed to be acting in an appropriate manner with no apparent signs of mental or emotional illness. He resumed seeing him for his psychological and emotional problems after Dr. Hector’s discharge and continues to see him on a monthly basis. The grievor is still taking an anti-depressant and anti-psychotic to relieve anxiety. It was Dr. Zwicker’s opinion that the grievor’s condition is a direct result of the conflict at the workplace and, since it is ongoing, might need medical intervention well into the future.

There is no need for me to chronicle the various signs and symptoms displayed by the grievor during this period of time. Dr. Zwicker gave a very detailed account of the grievor’s treatment and I accept without question his comments about his emotional and mental state. The grievor was not responding to medication and required increasing dosages after his suspension. He was obviously extremely affected by the events at the workplace and continues to be affected to this day.

Dr. Zwicker did comment on the grievor’s pre-existing disposition to Obsessive Compulsive Disorder. He stated that, given his personality and history, he would have interpreted the actions of the Employer as a personal attack on him and his standing as a nurse. He put everything he had into his work and performed his duties above and beyond what was required. He checked and rechecked everything he did and, as a result, when he was wrongly accused of acting improperly, he suffered severe emotional distress. When he was asked if the grievor might have exaggerated the circumstances, Dr. Zwicker replied he might have, but not intentionally. His symptoms were real. He truly felt anger, sadness and frustration at what he saw as an injustice.

Mr. Michael Fournier, like the grievor, began working at the mental health centre as a registered nursing assistant, graduated from the registered nursing course in 1991 and was hired to work as a psychiatric registered nurse on Ward 07 from 1991 until 1999. He was then assigned the duties of Nurse Manager on Ward 08 until 2001 when he was transferred back to Ward 07. He remained there until September of 2003 when he was reassigned to Ward 08. As Ward Manager he did not provide direct nursing care but rather supervised the work of 25 nursing staff, including RNs, RPNs and attendants. He was responsible for health and safety and labour relations matters on the ward as well for as monitoring ongoing education and in-service programs. With respect to complaints from one patient about another, it was his role to act as a patient advocate, interview other patients and staff, gather information and report his findings to the program coordinator. After discussion with him a report, with recommendations, would be generated and forwarded to Dr. Jones. Staff complaints generally involved personality clashes and/or performance issues and were also his responsibility.

He first became aware of the allegations against the grievor and two other staff nurses on December 30, 2002. Although the usual course of action would have been for an incident report to be completed concerning the incidents described in the allegations, in this case no incident reports were filed until after the investigation had commenced. Instead, on December 30^th, three different staff members approached Mr. Fournier about allegations of patient abuse. He was told by Diane Pouw, Ernie Reed and Mike Lauren that patient abuse was common on Ward 07, that the patients were constantly being teased, became overwrought and then were being placed in seclusion. Mr. Lauren stated the patients were being roughed up and that if Mr. Fournier did not do something about it he would be forced to seek a transfer since he had a responsibility as a registered nurse to report patient abuse to the College of Nurses and he could not work there and place his license in jeopardy. Mr. Reed told Mr. Fournier that patients were verbally and physically abused and unnecessarily restrained with excessive force. They were “set up” for seclusion and kept there for longer than was necessary. He stated that staff members had told him they were frightened and intimidated and did not want to become involved. He then met with Ms. Duncan, the Chief Nursing Officer and Ms. McLaughlin, the Program Coordinator to consider these serious allegations. It was decided that it was necessary to initiate a preliminary investigation into them but that, since many of the staff were not scheduled to work over the Christmas holidays, it was decided to begin interviews after the New Year. These interviews began on January 6, 2003 but in the interval Mr. Fournier had spoken to another staff member, Diane Desjardins, on December 31^st, after her night shift. She was distraught and tearful over what she described as the patients’ suffering. She told Mr. Fournier that she was afraid to chart what she had seen. The rumours continued to circulate and people were upset and worried. Mr. Fournier was concerned about property damage to the facility. He spoke to the grievor during this time, who asked several questions about the allegations. Mr. Fournier told him that the environment was “not good”.

Mr. Fournier had another meeting with Ms. Duncan and Ms. McLaughlin to report this discussion and, on January 2 and 3, 2003 arranged interviews for the staff on Ward 07. It was a difficult process because staff members had been scheduled off for the holidays. They are divided into two teams who work totally opposite shifts. In this case because the three people involved in the allegations worked with all of the staff members at some time, it was necessary to interview all 25 of them. On January 2nd all staff members received a letter advising them of the interviews and, in total, 24 nursing staff and six clerical staff were interviewed. The Union was present for all of these interviews. On January 3 they interviewed Ms. Desjardins and Ms. Pouw. Both were very upset and stated that if the employer did not do something about these allegations the College of Nurses would have to be contacted as well as the Ontario Provincial Police. They expressed concerns about damage to the property and to their vehicles. Ms. Pouw stated that she did not think she could work in the building any longer. People were placing pieces of cheese in her mailbox, indicating their opinion of her as a “rat’.

Mr. Fournier was directed to the policy regarding the investigation into allegations of patient abuse. He knowledge frankly that he had not followed the policy precisely and that he might have been done a better job knowing what he now knows. However, the circumstances were unique. Normally he would have been advised of the allegations and he would have had the opportunity to sit with the accused staff member to discuss them. In this case there were numerous allegations concerning numerous patients by numerous staff members. It was much more complex. The rumors began circulating before he could begin his investigation and continued to circulate throughout the investigation. He had concerns about who was involved and to what extent they were involved. For that reason it was decided that all staff should be interviewed and that it was necessary to involve the Union at every step of the process. Mr. Fournier developed the three questions reproduced above in the hopes of encouraging open discussion. He wanted those interviewed to comment on the environment on the ward, including their ability to work together as a team to maintain proper nursing standards. In retrospect he conceded they could have been more specific with respect to the subject of patient abuse. The second and third questions were designed to encourage the interviewees to come forward with examples of excessive force, goading or teasing. When the interviewees entered the room, they were asked these questions and their answers were recorded. The grievor’s responses have been set out earlier in this award but, of the nine sets of notes provided to me, four voiced concerns about the stress on the ward, personality clashes amongst the staff and poor morale. Three of them set out in some detail examples of incidents of physical and psychological abuse of patients and challenged the Employer to act on their complaints or face consequences in other forums. A few employees related stories they had heard about excessive force but had no personal observations to contribute.

After the interviews had been concluded, Mr. Fournier and Ms. McLaughlin produced a report containing the concerns and comments of the staff that were relevant to the question of patient abuse. Their report concluded as follows:

We feel the events described are highly suspected to be true and recommend further investigation.

They reached that conclusion based on several factors. There were so many allegations based on specific acts of specific staff concerning specific patients. There were too many consistencies in their stories to be ignored. For example, at the time of the October 24^th incident, there had been a number of visible minorities in the unit and the racist comments alleged to have been made were not inconsistent with the individual accused having made the comments. As well, they considered the source of the comments. Ms. Pouw and Ms. Desjardins had been nurses for 25 and 27 years respectively. They had worked under contract for years and had enjoyed a good relationship with staff and patients over that time. Mr. Ernie Reed had been employed since 1980 or 1981 as an RN and RNA. Mr. Redman had been a full-time Nurse Manager for 1-1/2 years and had been a ward nurse for 10 years before that. Mr. Ward had been employed at Oak Ridge for 26 years and Mr. Lauren for approximately 10 years. Mr. Lauren had come to Mr. Fournier with his concerns and, as upset and angry he was, did not want to speak up publicly. He felt it was Mr. Fournier’s responsibility to deal with these issues. These were all credible witnesses who could not be ignored.

The grievor had claimed that, had the Employer checked the time schedules, it would have been able to determine at the outset of the preliminary investigation that he was not even in the building during the incidents cited. Mr. Fournier agreed that there is a daily or day sheet on the front desk of the nursing station on the ward. That sheet notes the activity of the staff for the day including vacation, sick leave and time off. That form, however, could not be relied on for accuracy. Pre-approved time off would be noted on the form but any request for time off during the shift might not be noted. With respect to the time schedules themselves, Mr. Fournier prepares and checks these schedules. They go to the front office and changes are noted. The office keeps one copy and another is sent back to the ward. Frequently there are errors on the sheets. If Mr. Fournier wanted to determine whether an employee was at work on a certain shift, he would first check the day sheet. Then he would also have to check other records to be sure they were accurate. These sheets would not tell Mr. Fournier whether the grievor was in the building before or after his scheduled shift. Mr. Fournier referred to the sign-in sheet. It was his evidence that neither he, nor to his knowledge, have any other managers, used the sign in sheet. They operate on the honor system. Nursing staff are expected to fill in the time their shift begins. That however would not necessarily mean the time that they entered or left the building. The sign in sheets are not monitored and cannot be relied on as an accurate reflection of any employee’s presence in the building. Mr. Fournier testified that there is a dress code and that employees are issued nametags. However it is not uncommon for an employee to enter the building without either since they are known personally by those in the offices. In order to access the building an employee must announce themselves to a security officer who will then open the door to allow them to enter. There are cameras in the entrance but to Mr. Fournier's knowledge there is no method of taping or preserving this information.

Mr. Fournier testified that he did consider these various schedules and forms during his preliminary investigation but did not consider them to be a reliable source. For example, even though the time sheet indicated that they grievor had completed his shift at 1500 hours, Mr. Fournier did not consider that as proof that he had left the building. He was personally aware of times when the grievor had been in the building without signing in and after his shift was over. As well, it was not uncommon for nursing staff to exchange shifts without a notation on the time schedule. Mr. Fournier had to weigh the reliability of these times sheets and schedules against the direct evidence of witnesses who placed the grievor on the ward during these incidents.

On January 24, Mr. Fournier was told to bring the grievor, Mr. Lenio and Mr. Walton to meeting in the boardroom with Dr. Jones, Ms. McLaughlin and Ms. Duncan. The grievor told Mr. Fournier that he would not attend any meeting without Union representation and Mr. Fournier assured him that Ms. Martha Donaldson would be there. He had no further contact with the grievor until the following Monday when he phoned all three to offer support and to advise them of their right to access the services of the Employee Assistance Program.

In cross-examination Mr. Fournier was asked why he did not make any inquiries about any incident reports about the alleged abuse. He agreed that they might have been helpful in his investigation if they were accurate, which he did not feel he could have confirmed at the time. He also acknowledged that he had not seen the preliminary investigation check list or the actual policy itself until after the interviews with the staff. He conceded he would have done things differently had he realized this was to be a preliminary investigation and not simply a fact finding exercise. He agreed that, contrary to the policy, the grievor was not informed verbally or in writing of the allegations against him. He also agreed that the preliminary investigation was intended to gather the facts of the allegation and not make any decisions. However, he stated that he had been asked for his recommendations. He did not make any decisions but set out the facts and his recommendations. He allowed that he did not physically examine the patients or contact a patient advocate about the alleged abuse. He did not collect all of the documentation that was available, such as the time schedules, sign-in sheets or incident reports during his investigation, which he conceded, might have influenced his conclusions. However, he did not believe the results would have been any different. There was enough information to warrant a formal investigation and the allegations from the eyewitnesses were too serious to allow them to eliminate any nursing staff accused of the alleged abuses. When it was suggested to him that he could have discovered inconsistencies in the witnesses’ accounts of the events which, would have raised questions of credibility, he agreed but stated that those inconsistencies would have led him to conclude further investigation was required. He would not have made any decisions about credibility at that stage of the process.

Dr. Jones was the final witness for the Employer. He began doing research into violent behavior and first went to Penetanguishene as a Unit Director in 1987. In 1992 he became a member of the faculty of Queens University in Kingston, Ontario, and served on the Board of Directors of the Regional Centre of the Kingston Penitentiary. In 2000, he returned to the Mental Health Center as Chief of the Forensic Division of the Mental Health Centre. He is responsible for all operational aspects of five clinical forensic programs comprising of approximately 160 occupied beds with the Oak Ridge and the regional forensic facilities served by approximately 450 staff members. The responsibilities include human resources, recruiting, labour relations, as well as the administration, organization and management of clinical resources. The Oak Ridge facility is Ontario’s only maximum-security psychiatric facility and accepts referrals from throughout the province. The Regional Forensic Services Program provides medium/minimum security services only within the catchment area. The Oak Ridge institution also specializes in the treatment of acute behavior disturbance in men suffering from major mental disorder and/or organic impairments, and in the long-term security of high-risk men who are poor candidates for community reintegration. Dr. Jones is a member of the Ontario Review Board which reviews cases of persons previously found Not Criminally Responsible on Account of Mental Disorder or Unfit to Stand Trial and creates Dispositions that provide authority to detain or release and/or to impose such supervisory restrictions as appropriate in the circumstances. Dr. Jones also holds academic appointment as assistant professor of psychiatry at McMaster University in Hamilton and the University of Toronto.

He was responsible for the operational line management that existed during the relevant time. He was also the decision maker for the bureaucratic structure and reported directly to the administrator of the hospital. He was unaware of any complaints of patient abuse until he received the report of the preliminary investigation on the morning of January 24, 2004. He reviewed the report and conferred with Ms. McLaughlin about the content of the document, the origin of the complaints, the staff involved and the patients alleged to have been abused. He spoke with Ms. Duncan and placed a call to the administrator of the hospital, Mr. George Kytayko, to arrange an immediate meeting. They met over lunch to review the report and, after seeking Mr. Kytayko’s advice, Dr. Jones concluded that it would be necessary to conduct a full investigation into the allegations and to suspend those accused of abuse until the investigation could be completed. When he returned to his office he drafted letters for Mr. Lenio, Mr. Walton and the grievor, contacted Mr. Fournier and Ms. McLaughlin about setting up a meeting and contacted the Union Stewards from the two bargaining unit's involved. Dr. Jones testified that, while they have conducted many investigations over the years, few have resulted in suspensions. There were factors however in this case that influenced his decision. The allegations involved multiple staff members, multiple patients and multiple locations. The allegations had been reported and/or confirmed by multiple staff members. The alleged conduct was violent and could have resulted in criminal charges of assault. The patients named in the allegations were vulnerable and could not defend themselves. Dr. Jones stated their paramount duty was to provide safety for the patients. They are in a secure facility, incapable of making decisions regarding their own care and defenseless against the staff that are supposed to care for them. Until he could verify and/or dismiss the allegations of the eyewitnesses, the only way he could protect the patients was to remove the staff accused of abusing them. Dr. Jones was also concerned that the investigation might be compromised because of intimidation by the accused staff members towards those who had made the allegations. Indeed, one of the witnesses stated that she was intimidated and afraid to chart what she had seen. The potential for staff conflict would not have been in the best interest of the patients. Dr. Jones felt his choices were to leave them on Ward 07, transfer them to another Ward or suspended them. He decided suspension would be appropriate because of the severity and seriousness of the allegations. Allegations of abuse often involve complaints of derogatory comments and neglect, such as failing to feed a patient. The allegations made in this complaint spoke of actual physical abuse. As well, Dr. Jones had to consider the source of the complaints. He concluded that they had been made my experienced caregivers and had been corroborated. On their face they appeared credible. He concluded that it would not be safe to allow the alleged abusers to continue to work in the facility during the investigation. He acknowledged that all three alleged abusers were capable nurses who were well regarded by management and their colleagues. However, he could not substitute his own professional opinion for the first hand report of the eyewitnesses. His general impression could not override what he considered to be direct evidence of abuse.

In coming to the conclusion that suspensions were appropriate, Dr. Jones realized that unless he acted quickly, one or more of the accused abusers would be working over the weekend. He decided that it would be in the best interests of the patients to suspend the three immediately. He arranged to meet with these nurses in the boardroom with the appropriate union representation. He met separately with each of them, gave them a letter of suspension, explained the reason for the suspension and asked them to wait in another boardroom across the hall. He asked them to return any hospital property, asked them not to return the building without consent and asked them not to discuss the events with anyone until the investigation was completed. Dr. Jones testified that the meeting was very traumatic for the grievor. He tried to conduct the meeting in a professional, businesslike and courteous manner. He was aware of how difficult this would be for Mr. Press. Dr. Jones and Ms. McLaughlin accompanied him to the staff room to clean out his locker. He was then escorted directly to the front door of the facility by the most direct route, away from patient care areas or the office. After the grievor had left, Dr. Jones assembled the staff on Ward 07 to reassure them that patient care would continue to be their prime concern. It was obvious to them that something had occurred but Dr. Jones made no reference to the allegations or the suspensions that had just taken place.

On January 28, 2003, Dr. Jones sent a letter to the grievor setting out the three allegations of abuse that had been the subject of the preliminary investigation. The letter stated that there was sufficient evidence to substantiate the allegations that had been made by credible witnesses. The letter concluded by acknowledging the disturbing nature of the allegations and promising a prompt completion of the investigation.

The final report of that investigation was dated March 12, 2003 and found, in respect of the grievor, that there had been 5 allegations in total. Of those 5, it was determined that he had not been involved in 3. It was not determined that he had physically assaulted a patient on two occasions in October of 2002. Dr. Jones reviewed that report and wrote to the grievor advising him that there was insufficient evidence to warrant discipline but enough to conclude that he had failed to comply with hospital policy and maintain acceptable standards of practice. His letter acknowledged the traumatic nature of the events, recognized the mixed feelings remaining and expressed hope that he would, in time, understand that the Employer had acted in the best interests of the patients and staff involved.

With respect to the issue of confidentiality, Dr. Jones testified that the Centre deals with a large number of allegations and complaints against the staff. The patients are being kept against their will and the nursing staff is perceived as jailers. It is an adversarial environment and they have had hundreds of complaints and hundreds of investigations, each one treated with confidentiality. Only those directly involved are given any information about a complaint and only those directly involved are made aware of the substance of the allegations. Dr. Jones did not disclose or discuss the results of the investigation with anyone except the three nurses named in the complaint.

In his letter of March 13, 2003, Dr. Jones had instructed the grievor to return to work on March 18. He met with the grievor that day to discuss the return to work and was told that the grievor required a clearer understanding of Dr. Jones concerns before he could return to work. He was not happy with the suggestion that he had been” substantially vindicated” and stated that he was at risk for repeating his improper conduct unless the employer's concerns were clarified. Dr. Jones explained that he discussed the matter with Ms. Duncan and that they had agreed that there had been some “slippage” in the institution and that many of the policies had to be renewed and reviewed. He told the grievor he was not the only one who was not complying with the rules and that it was his opinion that reorientation and further education was necessary for all of the staff. It was clear to him from the investigation that a complete review of policies regarding restraint and seclusion were necessary. Dr. Jones assured the grievor that he was not being disciplined but the grievor objected to a return to work until the comments about his failure to comply with hospital policy had been resolved.

By letter dated March 24, 2003, Dr. Jones confirmed their agreement that the grievor would not be required to return to work until the specific details of Dr. Jones concerns had been made available to him. Dr. Jones later advised the grievor that he had decided to withdraw any implication of noncompliance with policies and standards. He directed the grievor to return to work March 27^th. Instead, on that day, the grievor provided a letter to Dr. Jones in which he stated that, on the recommendation of his family physician, he would be applying for time off on WSIB leave to deal with the adverse effects of these events on his health. Ultimately, after discussions regarding accommodation and return to work protocols, the grievor did return to work. He now works as an Infection Control Nurse in another division and no longer reports to Dr. Jones.

In cross-examination, Dr. Jones agreed that the policy promulgated with respect to investigating complaints was intended to protect the rights of patients and staff equally and consistently. There is no hierarchy of rights and there is no provision in the policy for discretion. He also agreed that the policy is mandatory in its procedures and that it acknowledges the importance of due process for staff because of the serious nature of the allegations and the potential impact on a nurse's reputation. While he agreed that the policy is designed to give an employee full disclosure of the allegations against him/her so that he/she could respond in a reflective and complete manner, he disagreed with the suggestion that had not happened in the instant case. He understood that Mr. Fournier and Ms. McLaughlin had notified the grievor about the allegations as soon as they became aware of them. They commenced their investigation as soon as they could, given the holiday season and scheduling problems. He did not recall any conversation with the grievor at that time about legal representation. He disagreed with the suggestion that, had the grievor been fully informed about the allegations, he might have been able to demonstrate that he was absent during some of the alleged incidents and therefore allay their fears. Dr. Jones pointed out that the grievor had not been present during some of the events but had been for others. It would not have been enough to eliminate him totally.

When asked about the possibility of the other staff on Ward 07 knowing what had transpired, Dr. Jones conceded that they might have been able to conclude that 3 RNs had been called off the floor and did not report back to work that day or on following days. However, he maintained they did everything they could to preserve the grievor’s privacy in the circumstances.

Dr. Jones was questioned about his letter to the grievor in which he alleged a failure to adhere to policies and standards and his comment that the grievor had been substantially vindicated. With respect to the former, he stated that he believed at the time that the grievor had failed to document incidents on the clinical record but acknowledged that they withdrew the criticism because they could find nothing to corroborate their accusations. With respect to the latter comment, Dr. Jones agreed that there had been no evidence to prove that the grievor had been involved in any patient abuse and stated that the choice of words used was simply a “turn of phrase”. He was aware at the time of the grievor’s concerns about his reputation in and outside of the Centre but testified that it was not the Centre’s practice to publicize the results of an investigation and that the grievor could advise his peers of his exoneration. He knew the grievor was distressed over the events but was not aware he had sought medical intervention to deal with his mental and emotional state. He understood that the last several months had had a very significant impact on the grievor and that the grievor’s perception was that they had altered his life forever. Dr. Jones asserted that the reassignment to another ward was not intended to be disciplinary. He had concerns about returning the grievor to Ward 07 because he held animosity towards those who had given statements during the investigation. It would have been difficult for him to reestablish a good working relationship and Dr. Jones’ primary concern was for the well being of the patients on the ward.

Mr. Rob Walton was called in reply to give evidence about the incident report he filed regarding the October 24, 2002 incident. He stated that he had completed the form as required and placed it under Mr. Fournier’s office door. He could not verify that Mr. Fournier actually received the report but he did say that Mr. Fournier’s office door is locked and only Mr. Fournier and the other shift supervisors and nurse managers have a key. It was his evidence that the grievor was not included in the incident report and, had it been found, would have cleared him of any allegations regarding that incident.

SUBMISSIONS OF THE PARTIES

Mr. Ed Holmes, counsel for the Union, took the position that these proceedings have proven that the Employer breached its obligations under article 9.1 to protect the safety and health of its employees. The evidence was clear and supports the assertion that the grievor has suffered an illness as a direct result of the Employer's actions against him. The grievor's evidence, supported by that of his physicians, was that he had recovered from his father's death and had experienced the normal grieving process. Those issues had been resolved months before the suspension and were not a factor in the symptoms he displayed after the suspension. The Employer's actions and inaction caused severe distress to the grievor. He suffered humiliation and emotional pain that continues today.

The Employer directly affected the grievor's reputation in the community and in the workplace. The fact that he was assigned to a different ward following the suspension exacerbated the harm done. The use of the words “substantially vindicated” does not signify to his colleagues that there was no evidence upon which the employer had cause to accuse him of abuse. In fact, his return to a different ward sent the opposite message to his colleagues.

Dr. Hector testified that the grievor was a very proud individual who attempted to be a perfectionist in his work. He felt these accusations were a personal attack on his character. Being publicly exonerated was very important to him. The Employer must be held responsible for the harm that was done to the grievor. The grievor is seeking a declaration that the employer breached its obligations under the collective agreement, including article 9.1, and damages in the amount of $5,000 for that breach.

The grievor is also seeking a declaration that his transfer to Ward 08 was disciplinary nature. No explanation was given for the transfer and the only conclusion this Board can reach is that it was punitive in nature. The Union and the grievor are seeking an order that the grievor the return to Ward 07 if he chooses and when he is medically fit to do so.

The grievor is also seeking general damages in the amount of $25,000 in accordance with the principles outlined in Re Toronto Transit Commission and Amalgamated Transit Union (2004), 2004 CanLII 55086 (ON LA), 132 L.A.C. (4^th) 225 (O. Shime). He asks for an order regarding special damages which would include loss of sick time, top-up for the difference in regular pay and sick pay, reimbursement for any vacation or holiday credits used during this period, compensation for loss of overtime and $1000 for legal fees he was forced to pay in respect of the potential criminal charges. The claim for damages also includes tort damages for distress, humiliation and loss of reputation. It was said that the Employer must compensate the grievor for the intentional infliction of mental distress that could have been avoided. These damages include a claim for defamation. Even though the grievor was completely vindicated at the end of the investigation, the Employer refused to acknowledge his innocence publicly, inside or outside the facility. Despite this lack of evidence, the Employer was unwilling to accept the findings of the preliminary or final report insofar as it exonerated the grievor. It refused to accept his innocence, characterizing the findings as a substantial but not complete vindication and assigning some measure of blame by suggesting misconduct on the grievor’s part. That letter and its negative inferences remain on the grievor’s file and can only be characterized as defamatory. It is proof of the Employer's negligence in respect of its duty to protect the health and safety of its employees. The grievor is seeking $85,000 in damages.

The grievor is also asking this Board for punitive damages in the amount of $10,000. Punitive damages are awarded in cases where the conduct is so egregious that it warrants punishment. It is also a component of the rehabilitative aspect of an award and is designed to ensure that such conduct is not repeated.

It was submitted by the Union that the evidence bears out its contention that there has been a flagrant disregard of the Employer's policy. Mr. Fournier candidly admitted that it did not follow the policy to the letter, he did not have or review the checklist before he started the preliminary investigation and that he would now do things differently. We did not hear from Ms. McLaughlin or Ms. Duncan about their role in the preliminary investigation and the evidence from Dr. Jones was in relation to his actions after the preliminary investigation. The Employer's evidence with respect to the grievor was consistent and complementary. It was acknowledged that he was a long-standing employee with a reputation for being thorough, caring, competent and professional in his interaction with his patients and colleagues. He reviewed the Employer's policy very carefully and pointed to this Board in clear terms the portions of the policy he believes the Employer had ignored. He is convinced that the Employer would have eliminated him as a suspect had it reviewed, as required by the policy, all of the time sheets, assignment sheets, sign-in sheets and incident reports. He maintains, and his evidence is uncontradicted, that he offered to assist the Employer in its investigation and, had he been informed of the specifics of the allegations in a timely fashion in accordance with the policy, he would have been able to allay their concerns about his performance as a nurse and persuade it that he was innocent of the allegations.

The evidence regarding the effect of the Employer's decision to suspend the grievor is also uncontradicted. He testified about the tension it created within his family and the strain it caused on his relationship with his spouse. He told the Board that because of the rumors in the community and the questions that were constantly directed at him about the events at Oak Ridge, he was forced to curtail most of his social activities. He stopped curling and playing hockey and he no longer coaches basketball. This Board has evidence of the person he used to be and the person he is now as a direct result of the Employer's misconduct.

In December of 2002 Mr. Fournier became aware of staff concerns about patient abuse. By December 31^st he had clarified those issues and there is no doubt that, by the time he met with Ms. McLaughlin and Ms. Duncan at the beginning of January of 2003, he knew the substance of the specific allegations. Notwithstanding that knowledge, and the fact that the grievor had approached him about the rumors, he did not speak to the grievor until January 7^th. Even at that stage all Mr. Fournier did was ask the grievor three vague questions that did not provide the grievor with any information about the allegations, including whether they pertained to him. The grievor was never given an opportunity to defend himself or to prove his innocence, despite his repeated offers to do so. Instead he was suspended with the resulting adverse effects on his health, family and reputation. Instead he was escorted to the front door in full view of his colleagues in a manner he felt was humiliating. He walked to his car in a state of shock and disbelief, ashamed and physically ill. He did not become aware of the actual allegations against him until he received a copy of the preliminary investigation on February 19^th.

The Employer's flagrant disregard for the policy, it was asserted, is staggering. Notwithstanding Dr. Jones’ agreement that, because of the seriousness of the allegations and the potential impact on a nurse's career, due process was vital, the Employer did not take steps to insure that it’s staff members accused of abuse were treated in a manner consistent with the policy. The policy is clear: there is no hierarchy. Staff is to be afforded the same protection as the patients. In this case the only one who suffered as a result of the preliminary investigation was the grievor. The policy clearly states that staff will be notified as soon as possible of the allegations against him before the preliminary investigation begins. Had the Employer done that in this case the grievor could have defended and possibly cleared himself before the decision was made to suspend him. The OPP felt there were credibility issues with two of the major witnesses and the grievor should have been given an opportunity to address those issues. Had the grievor been informed of the actual allegations against him in a manner consistent with the policy, he could have had time to reflect on the incidents cited in the complaints. He would have been able to clear himself totally from some of the allegations, which would have cast some doubt on the others.

Mr. Suneel Bahal, counsel for the Employer, agreed that article 9.1 is intended to protect workers from danger and requires an employer to take reasonable steps to protect the health and well-being of its employees. That obligation, it was said, cannot be interpreted as a fetter on the right of an employer to suspend an employee pending investigation. Section 22 of the Public Service Act 1990 R.S.O. states as follows:

Suspension, removal, dismissal and release

Suspension hearing investigation

22. (1) A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during the suspension may withhold the salary of the public servant.

The only fetter on the employer's rights under the Act is its obligation to comply with the requirements under the Act. In this case the employer properly delegated authority to Dr. Jones and the grievor was clearly a public servant under the Act. The appropriate and only standard for review of the actions taken under this Act is one of bad faith.

The Employer conceded that errors were made during the process of the investigation. However, the situation was unusual. The allegations were not presented in the traditional manner. There were multiple allegations of patient abuse and these allegations had been made by credible witnesses. They included complaints of low morale, intimidation and professional vulnerability. The Employer's decision to investigate these complaints cannot be faulted. There was no bad faith, no malice and no intent to harm. The employer's actions were an honest effort to deal with serious allegations of physical abuse against the most vulnerable patients. The Employer had a fiduciary responsibility to protect these patients. It is important, it was said, that the Board consider the context and content of these events in deciding whether the employer acted in a reasonable manner.

The Employer agreed that the phrase “substantially vindicated” used in its letter to the grievor advising them of the results of the formal investigation was unfortunate but there is no evidence for this Board to conclude that it was done in bad faith or with malice.

Much has been said about what the Employer knew or ought to have known before and during the primary investigation. The Employer knew that the grievor's father had passed away and it knew that he had been off work for a period of time. Nevertheless, the grievor had returned to work without restrictions. The Employer did not know that the grievor's family physician had recommended antidepressants, which the grievor declined. The Employer did not know about the grievor’s obsessive personality disorder, his father's suicide or the emotional distress and stress he had been experiencing. The grievor's physicians testified that these pre-existing conditions probably affected the grievor's reaction to the accusations and suspension. He would have perceived these allegations as a personal attack on his integrity. However, while acknowledging the Employer’s responsibility to consider reasonable and foreseeable consequences in deciding how to proceed, the Employer could not have predicted the extent of the grievor's reaction. It had to balance the patient's rights to security and safety against the employees’ rights to be protected from unwarranted and unproven accusations. In order to do so it was obliged to investigate.

With respect to the Union's argument about the manner in which the grievor was removed from the premises, Mr. Bahal reminded the Board that all three of the accused were treated in this same manner. Dr. Jones was protecting the staff on Ward 07 and the grievor. Some of the staff had stated they felt intimidated and Dr. Jones wanted to insure that they did not have to face the grievor. He also wanted to ensure that the grievor was not asked or did not respond to any questions concerning his removal from the workplace. He attempted a deal with the grievor in a professional manner at all times. Once the decision had been made to suspend the grievor, Dr. Jones did what he could to avoid making it a public display. He acknowledged that the grievor’s removal from the facility became known very quickly. It was asserted that Dr. Jones did all that he could to avoid embarrassment to the grievor.

The grievor is also seeking a declaration that the Employer should have issued a public retraction and apology after the formal investigation. Dr. Jones testified that no one referred to the grievor by name except those within the institution directly involved in the investigation. In the circumstances it is not surprising that he did not feel it necessary to publicly proclaim the grievor's innocence.

Mr. Bahal reviewed the grievor’s allegations that his offers to assist the Employer before the preliminary investigation had been rebuffed. He asserts that had the Employer given him an opportunity to defend himself at that stage, he could have eliminated himself as a suspect. He also maintains that had the Employer had regard to the time schedules and sign-in sheets, it would have proven that he was not even in the building at the time of some of the allegations and thereby would have thrown suspicion on the credibility of the accusers. Even if the grievor was correct, Mr. Bahal stated that it would not have been enough to eliminate him from the preliminary investigation. By his own admission he was present during two of the alleged incidents. His personal denials would not have been enough to exonerate him from the charges in the face of eyewitness accounts. Mr. Fournier's evidence was that the time schedules and sign in sheets could not be relied on as proof of someone's presence in the workplace. They could not, on their face, provide an alibi.

With respect to the remedial issues raised by the Union, the Employer took the position that this Board cannot issue an order allowing the grievor to decide at some time in the future whether or not he wants to return to Ward 07. If the Board decides that, as part of a make whole remedy, he should be returned to his previous duties, that order cannot be left open to some future date when and if the grievor decides he is ready. The Employer also submitted that the damages requested in the grievance are excessive and are not related to the actual facts giving rise to the grievance. As to the tort damages the grievor is seeking for his emotional distress, pain and humiliation based on the Employer's alleged negligence with respect to its duty of care, this Board does not have the jurisdiction to make such an award, and, even if it did, the facts did not support such an award in this case. There's no evidence of a loss of reputation or any other losses in this regard. The grievor claims the primary investigation caused him humiliation in the community. The form and substance of the investigation was not intended to cause the grievor any humiliation or shame.

If this Board should find there has been a breach in this regard, the Employer submitted that it should issue a “make whole” award to allow for compensation for loss of vacation, sick leave and overtime opportunities. Finally, it was asserted that this Board does not have the jurisdiction under the collective agreement or the relevant statutes to award punitive or aggravated damages. It was further submitted that even if the Board should take that jurisdiction, the facts in this case do not meet the test that has been applied and approved by the courts.

In reply, Mr. Holmes referred the Board to previous GSB decisions, which stand for the proposition that there should be no remedial gap when a board of arbitration is attempting to remedy a wrong under collective agreement.

Mr. Holmes stated that while he and Mr. Bahal agree that context is a primary consideration in determining the facts of the case, they disagree on the interpretation to be given the facts in the instant case. There has been no dispute that the grievor had experienced the normal grieving process after the death of his father and had recovered and returned to work. His present health condition began in January as a direct result of the rumors and subsequent preliminary investigation.

The Employer, it was stated, relies on the PSA for its authority to suspend the grievor pending investigation. A review of the case law will show that, in none of those cases, had the Employer fettered its own discretion in its investigation by promulgating a policy such as the one in this case, a policy which provides greater rights and protections to the employees under investigation. This policy was intended to protect employees in the exact situation the grievor found himself in as a result of false accusations. The Employer was not free to fashion an investigation that did not conform to the process set out in the policy. The reasons, it was stated, are obvious: it is a small community, the allegations are serious and the potential consequences to a professional could be severe. That policy was completely ignored and the resulting impact on the grievor has been proven.

Article 9.1 requires the Employer to take reasonable caution to protect the safety and well being of its employees. It does not require malice or bad faith to breach the obligations under that provision. When it has been proven that an employer’s action or inaction has caused harm to an employee, it must be held responsible for the consequences. The Employer has said there was no evidence of damage to the grievor’s reputation. The grievor testified about the questions he was constantly being asked by his friends, his children and members of his community. He testified that he lost some friends as a result of the rumours and suspicions and that he was forced to forgo sports to avoid the scandal that was attached to his name.

In considering the amount of damages this Board should award, it must have regard to the context of the claim. The grievor has provided it with ample evidence of the pain and suffering he has endured as a direct result of the Employer's actions. The grievor deserves not only to be made whole, but also to be awarded punitive damages for the employer's flagrant and intentional failure to follow its own policy with respect to the preliminary investigation.

In the arguments advanced by both sides the jurisprudence relied on was extensive. In some cases, each party urged me to accept the same case to bolster their case and/or weaken the other side’s position. Those cases are as follows: Re Tyee Village and Hotel, Restaurant, Culinary Employees and Bartenders’ Union (1999), 1999 CanLII 35983 (BC LA), 81 L.A.C. (4^th) 365 (Albertini); Re K.A. & M. L. and the City of Ottawa and Luc Gauthier and OC Transpo (Ontario Court of Appeal) January 21, 2005; Re Seneca College and OPSEU (Olivo) (December 4, 2001) unreported (P. Picher); Ontario Divisional Court (November 1, 2004); 2006 CanLII 14236 (ON CA), [2006] O.J. No.1756 Ontario Court of Appeal; Jack Wallace and United Grain Growers Limited 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 (Supreme Court of Canada); Downham v. Lennox and Addington County 2005 CanLII 45197 (ON SC), [2005] O.J. No. 5227 (Ontario Superior Court of Justice); Re CVC Services and I.W.A.-Canada, Local 1-71 (Jackson) 1997 CanLII 25111 (BC LA), 65 L.A.C. (4^th) 54 (S. Lanyon); Re Bear Creek Lodge and Hospital Employees Union (2002), 2002 CanLII 79139 (BC LA), 106 L.A.C. (4^th) 254 (J.J. McEwen); Re OPSEU and Ministry of Community and Family Services (July 19, 2004) GSB #2006-0447 (D. Leighton); Re OPSEU (Keeso) and Ministry of Correctional Services ( January 27, 1989) GSB #0009/88; Re Pacific Press and C.E.P., Local 115-M 1998 CanLII 30129 (BC LA), 73 L.A.C. (4^th) 35 (C. Bruce); Re Treasury Board (Department of justice) and Bedirian (2006), 2006 PSLRB 4, 149 L.A.C. (4^th) 164 (S. Matteau); Re OPSEU (Witherow) and Ministry of Labour (December 4, 2000) GSB # 0912/98 (B. Herlich); Re OPSEU (Willis) and Ministry of Correctional Services (March 16, 1995) GSB #2755/91 (S. Stewart); Re OPSEU (Sammy et al) and Ministry of Correctional Services (October 9, 2001) GSB # 0224/01 (D. Harris); Re Air Canada and International Association of Machinists, Lodge 148 (1989), 1989 CanLII 9362 (CA LA), 7 L.A.C. (4^th) 194 (H. Hope); Re Blake and Amalgamated Transit Union and Toronto Area Transit Operating Authority (May 3, 1988) GSB #1276/87 (O. Shime); Re OPSEU ( Latimer) and Ministry of Community Safety and Correctional Services (March 5, 2004) GSB #1995-0131 (S. Kaufman); Re OPSEU (Gibbon) and Ministry of Correctional Services (November 26, 2002) GSB #0687/00 (B. Kirkwood); Re OPSEU (Stockwell) and Ministry of Correctional Services (February 10, 1989) GSB #1764/87 (T. Wilson) (Application for Judicial Review dismissed November 2, 1989);Re OPSEU (Wilson) (May 23, 1996) GSB #2855/91 (O. Gray); Re OPSEU (McKinnon) and Ministry of Solicitor General and Correctional Services (October 11, 1996) GSB #1276/94 (R. Roberts); Re OPSEU and Ministry of Correctional Services (May 19, 1005) GSB #2002-0161 (O. Gray); Re OPSEU (Watts/King) and Ministry of Correctional Services (April 12, 1991) GSB #1376/90 (W. Kaplan);; Re OPSEU and Ministry of Correctional Services (August 24, 1990) GSB #826/88 (D. Kates); Re OPSEU (Arnold/Zozzolotto) and Ministry of Correctional Services ( March 27, 1991) GSB #862/89 (R. Verity); OPSEU and Ministry of Correctional Services (April 28, 1997) GSB #1252/85 (E.B. Joliffe);Re OPSEU (Myszko) and Ministry of Health (September 16, 1987) GSB #2511/87 (J. Emrich); Re OPSEU (Leeanan) and Ministry of Correctional Services (August 22, 1990) GSB #1268/88 (J. Roberts); Re OPSEU (Baron et al) and Ministry of Community and Social Services (June 28, 1995) GSB #2968/91 (W. Kaplan); Re OPSEU (Sager) and Ministry of Transport (October 6, 2004) GSB #2000-0377 (L. Mikus); Re OPSEU (Chan) and Ministry of Education (June 12, 1996) GSB #1990/90 (N. Dissanayake); Re OPSEU (Franboise) and Ministry of Community and Social Services (March 24, 1997) GSB # 2268/95 (J. Roberts); Re OPSEU and Ministry of Correctional Services (August 24, 1984) GSB #69/84 (J. Samuels); Re OPSEU (Bain/Kennedy/Klonowski) and Ministry of Correctional Services (February 24, 1990) GSB #1102/87 (SE. Ratushny); Re OPSEU (Welsh) and Ministry of Correctional Services July 4, 1990) GSB # 1277/89 (M. Watters) and Re OPSEU (Bousquet) and Ministry of Natural Resources (March 31, 1991) GSB #541/90 (M. Gorsky).

REASONS FOR DECISION

The Grievance Settlement Board has long recognized that damages are an appropriate remedy for a breach of article 9.1. (Howe, Dalton, Loach and Ministry of Correctional Services (November 5, 1997) GSB #3155/92 (Dissanayake). Where there is a right under a collective agreement there must be a remedy for a breach of that right. The Union argued that that was especially significant in light of the ruling of the Supreme Court of Canada in Re Weber and Ontario Hydro {1995} 1995 CanLII 108 (SCC), 2 S.C.R. 929 and the trend towards increasing deference to arbitration boards. From the cases relied on by the parties, certain principles have been accepted and applied by numerous panels of the GSB that are binding on this panel.

Section 9.1 places an onus on the Employer to make reasonable provisions for the safety and health of its employees and requires both parties to cooperate to the fullest extent to prevent accidents and promote safety and health in the workplace. Once the Union has demonstrated a degree of risk, the Employer must show that it has taken reasonable steps to avoid that risk. An assessment of the degree of risk is central to determining what is reasonable. The obligation is not to protect against every possible risk but to engage in reasonable precautions. What constitutes a reasonable precaution is to be determined by a fact-finding review of the circumstances, which will require a balancing of the safety interests of the individual and the operational interests of the Employer. While the balance is to be struck in favor of safety, the Union must demonstrate that the balance has been inappropriately struck by exposure to an unnecessary risk. Where an individual grievor is claiming harm, as in the instant case, he must establish direct causation, supported by medical evidence, between the employee’s symptoms and employer's practices.

The cases provided to the Board are illustrative of situations in which the employer's obligations under article 9.1 have been examined, most often in the field of corrections. In the Myszko case, (supra), a nurse suffered a car accident that she claimed was the result of the employer's negligent plowing of the roadway into the psychiatric facility. The employer had a policy that dictated when snow removal was to be done. It was the union's position that it had not conducted itself in conformance with its own policy. The Board found insufficient evidence of the road conditions to allow the grievance but noted at page 16;

Under article 18.1, the Employer is not an insurer against employee accidents. Liability for damages will be incurred in circumstances where the employer has failed to take reasonable precautions to protect the health and safety of its employees.

I note here that the cases refer to article 18.1, which is identical to article 9.1 of the current collective agreement.

In the case of Bolton (supra), the issue was reimbursement for anti-glare glasses for work on the visual display terminals. The cost of these glasses was more than the limit allowed under the insurance plan and the employer took the position it was not obliged to pay the difference. The grievance was framed as a violation of the health and safety provisions of the collective agreement. The Board said, at page 18;

… However in assessing whether reasonable provision has been made for the safety and health of employees at work, regard should be had to all of the relevant circumstances.

The Willis case (supra) is of some assistance. In that case a correctional officer grieved that the employer had failed to take reasonable provisions for his health and safety while he was assigned to the female area of the institution. He was concerned about the stress associated with the possibility of unfounded allegations of sexual assault. His concern was based on previous unfounded complaints of sexual assault that had resulted in police investigations. He asked for an order that the employer assign another correctional officer, preferably a woman, to corroborate their innocence if necessary, or, in the alternative, that cameras be installed to monitor the area. The Board, at page 12, stated as follows:

… We have no hesitation in accepting Mr. DiRuzza’s evidence that being the subject of a criminal investigation was stressful and that Mr. Willis experiences stress associated with his concerns about such a situation arising when he is assigned to the female unit. Whether or not the evidence before us is sufficient for a finding that the grievor objectively faces the risk or danger to his health and safety by virtue of stress is not a matter that need be specifically addressed, as it is our view that any such risk or danger is one he is reasonably required to assume as a correctional officer.

The job of a correctional officer requires him or her to deal with inmates, a situation that will inevitably present challenges and difficulties. In the environment of a correctional institution it is not surprising that unfounded allegations against correctional officers arise. When such allegations are made, they must be investigated and serious allegations are appropriately dealt with by the police in accordance with Ministry policy, as they were in the allegation involving Mr. DiRuzzia.

The Board in that case allowed that the remedy requested by the grievor might alleviate any risks to correctional officers in these situations but went on to state that optimum safety was not the test under article 18.1.

The Board referred to the case of Taylor-Bapiste and Ministry of Correctional Services (Dissanayake) that was considering an allegation that the employer had failed to make reasonable provisions for the health and safety of its employees because of the feeding procedures employed in the institution. It was ultimately concluded, on page 10 of the decision, as follows:

There is no question that from the grievor’s point of view, the proposed slot system is safer than the existing procedure. However, as the Board observed in Re Moulton, 230/88 (Watters) at p. 12, “… It is not enough to show that the granting of the remedy might improve safety within the workplace. Rather the union must establish that the working conditions suggest a real or serious possibility of harm”. One might be able to come up with a number of proposals, which this Board may be convinced will make a CO’s job safer than it is. However, optimum safety is not the test of article 18.1.

In a similar vein, the Board in the Samuels case (supra) stated at page 14:

It is generally conceded that a CO’s job is inherently more hazardous in most other jobs in the Ontario Public Service. That is a relevant factor because what is it reasonable precaution for a clerk working in a government office will not be the same for CO.

Another review of the obligations under what was then article 18.1 is found in the Leeanan case (supra). In an effort to prohibit contraband from being brought into the institution the employer instituted a stringent program of searching inmates and their quarters. In addition, correctional staff was forbidden to carry personal bags and lunch pails to areas where inmates were housed. The grievor, a diabetic, grieved that rule prohibited him from carrying with him a bag containing items vital to the treatment of his diabetes. The employer, on the advice of a physician, advised the grievor that only small items such as candies, packages of artificial sugar and snacks could be carried to the floor and that those items did not need to be in a bag. All of the other items on his list could be stored in his locker. The grievor did not agree with the steps taken by the employer for the maintenance of his health. The Board concluded that the ministry had fully discharged its responsibilities regarding the first sentence of article 18.1. It found, however, that the employer had failed to meet its obligations under the second portion of article 18.1, that is, to cooperate to the fullest extent possible in the promotion of the safety and health of its employees. Its failure to meet with the union and the grievor before deciding which items were necessary and which items were not was a breach of article 18.1 but that breach did not warrant of remedial order from the Board.

In Union Grievance (Kates) (supra), the issue was whether the employer had breached article 18.1 by failing to assign an adequate number of correctional officers as escorts during transport. The Board allowed that assigning additional correctional officers in those circumstances might result in a safer and more secure trip but went on to say, at page 11;

What appears to be the important question to ask is whether the employer in deviating from the desired norm or ratios caused an unnecessary or an acceptable risk to the safety and security of the members of the bargaining unit involved be they correctional officers or professional staff.

It referred to the comments of the Samuels Board (supra), where it was said “It is necessary to balance the safety of employees” in adopting appropriate measures for compliance with the collective agreement. He then went on, at page 12, as follows:

And in our view so long as the employer maintains the aforesaid process of addressing the attendant risks in balancing the necessity for the safety of its employees against the care and custody of the inmates involved, then it will be incumbent on the trade union to demonstrate that the balance, having regard to that was risks, has been improperly placed.

It is clear from a review of the cases provided to me by the parties that the first step in dealing with the allegations of a breach of article 9.1 in the instant case is to determine whether the Employer’s decision to suspend the grievor during the preliminary investigation can be characterized as a breach of its obligations to take reasonable precautions for the health and safety of the grievor. The onus is on the Union to establish the degree of risk and to prove the causal link between the actions of the Employer and the harm done to the grievor as a result of those actions.

There is very little dispute about the actual events giving rise to the Employer’s decision to suspend the grievor. Mr. Fournier became aware of rumours circulating within Ward 07 about patient abuse sometime in December 2002. By the end of the month the rumours had been confirmed by several staff members and, in consultation with Ms. Duncan and Ms. McLaughlin, it was determined that an investigation was warranted. He acknowledged that he had not reviewed the policy before he began the investigation and agreed that he had not followed it in its strictest terms. However, in his view the circumstances were unique. Usually single allegations of wrongdoing are reported in an incident report and recorded in the patient’s chart. From that incident report a decision is made concerning the action to be taken, if any. The staff person involved would be interviewed, the allegations reviewed with him/her and any other people involved would be consulted. In this case, there was no incident report to initiate that process. The allegations were vague in the beginning but took shape as time progressed. There was no reason to doubt the credibility of those reporting the abuse and there was a consistency to the stories that caused Mr. Fournier concern. When he interviewed the staff, he posed open-ended questions in the hopes of encouraging discussion. In retrospect, he agreed that the questions could and should have been more focused on the actual allegations. In any event, based on his inquiries, he concluded that further investigation was warranted.

It is this stage of the process that the grievor believes should have been handled differently and that, had it been done properly, he would have been exonerated immediately. He considers the Employer’s breach of the policy to be a breach of its obligations under the collective agreement. First, the policy is not contained in the collective agreement. It is a unilateral rule, promulgated by the Employer without consultation with the Union. A failure to follow the policy cannot be a violation of the collective agreement in and of itself any more than Employer policies are unilaterally enforceable against bargaining unit members absent a breach of the collective agreement. It can be evidence of bad faith, malice, unreasonableness and many other grounds upon which the Union might argue led to a breach of the collective agreement. The question for this Board is to determine is whether, in the circumstances of this case, the Employer’s deviation from its own policy resulted in an unacceptable risk to the grievor’s health and safety.

With respect to that policy, he believes that had he been told the details of the allegations at the onset of the investigation he would have had time to reflect on the incidents raised and to persuade the Employer that he was innocent of the charges. He relies on the fact that he was never given the opportunity to prove he was not even at work during two of the specific alleged incidents of abuse. He believes that, had he been able to show the Employer these absences, he would have been able to cast doubt on the other accusations relating to him. He believes that the Employer had access to all the evidence it needed to exonerate him but chose to ignore it and accept the evidence of others.

The evidence does not support the grievor’s beliefs. Even if the grievor had been told the specifics of the complaints against him, it is the Employer’s evidence it would have felt compelled to investigate further given the number of allegations and the detailed accounts of the eyewitnesses. Three health care professionals specifically identified the grievor and Lenio and Walton as abusers and the grievor’s protestations of innocence would not have satisfied the Employer that no further inquiries were needed. All of the witnesses, including the grievor, agreed that these allegations, if true, were very serious. They involved physical assaults on some of the patients that raised the possibility of criminal charges. Dr. Jones testified that it was their responsibility to ensure a safe and healthy environment for the patients in their custody. In view of the extent and nature of the alleged abuse, it is unlikely he would have agreed to dismiss the accounts of the eyewitnesses solely on the basis of the denial of one of those accused.

The grievor relies on the time schedules and sign-in sheets as proof of his innocence in respect of two of the alleged incidents and believes the failure of the Employer to consider those sources a major factor in the consequences that followed his suspension. Mr. Fournier did consider those documents. He did not consider them to be reliable and decided to ignore them for purposes of his investigation. He testified that not all employees signed in on arrival, that not all employees signed out or left the facility at the end of their shift, the time sheets were often altered before and during a shift and shift changes were common and not always noted on the time sheets. In view of the specific allegations against three named nurses it is not surprising that he did not consider these documents as proof of an employee’s presence or absence from the building. Even if he had noticed that the grievor was absent for two of the alleged incidents and even if he had been prepared to accept those time sheets as accurate, the fact is the grievor was working during other alleged incidents and the Employer had a duty to investigate further.

The grievor contends that the Employer was obligated under its policy to use the least obtrusive means possible during its investigation and it could have taken less drastic steps than suspension during the investigation. It could have assigned him to duties not involving patient contact. That would have protected the safety concerns for the patient and the health of its employee. I disagree. Obviously, and the grievor does not disagree, it would have been impossible to allow the grievor back on Ward 07 while he was being investigated for patient abuse. Some of the witnesses had stated they felt intimidated and had been afraid to chart what they had seen. The continued presence in the building of those accused of abuse would have exacerbated these concerns and could have had a negative effect on the investigation. It was not unreasonable for the Employer to decide that the most suitable course of action would be to send these employees home until the allegations could be disproved or substantiated.

The cases refer to a balancing of the interests of the employee in a safe and healthy workplace against the operational requirements of the Employer. Those operational requirements involve the care and custody of the patients. The Union asserts that the Employer’s own policy does not contain a hierarchy of rights but rather contemplates an equal protection of rights. In this case the Employer had to consider, on the one hand, the physical protection of the patients in its care and custody and, on the other hand, the right of its employees to be protected from baseless and vicious allegations. The environment of this facility is similar to that of any correctional institution. The patients are being detained involuntarily and consider the nurses to be their guards. It is not unusual to have complaints from patients about their keepers. The employee, when he/she becomes the subject of these complaints, should expect a fair and thorough investigation of these allegations so that he/she can be vindicated. The Employer decided the only way to ensure an objective and impartial investigation was to suspend with pay the alleged abusers. When the formal investigation was completed, it was hoped they would be able to return to work without doubt or guilt. In the circumstances the Employer’s decision was not arbitrary or discriminatory. It was arrived at after consideration of the circumstances at the time. There is no evidence there was any bad faith or malice in the decision-making. All three accused were treated in the same manner. The Employer’s action was, in my view, a reasoned and reasonable attempt to provide a safe and healthy environment for all involved.

Another example of what the grievor claims was a violation of the policy relates to the fact that Mr. Fournier recommended further investigation even though the policy clearly stated he was only to be a fact-finder and was not to make any decisions. And yet, the grievor is challenging the preliminary investigation process because he should have been exonerated at the outset. That would have required Mr. Fournier to make a determination about the truth and accuracy of the eyewitness reports, something he was clearly prohibited from doing under the policy.

I have stated earlier in the award that I accept the medical evidence supporting the effect this suspension has had on the grievor and the consequences he has suffered and continues to endure. However, before I can do anything to remedy those effects, I must find there has been a violation of the Employer’s obligations under article 9.1 and I am unable to do so. The Employer took reasonable steps to ensure the safety and health of its patients. In doing so he suspended the grievor with pay. The Employer could not have foreseen the grievor’s reaction to these events. There was no reason for him to believe that he would react so strongly to the suspension. He was unaware of the grievor’s fragile emotional state at the time or that, as an individual with an obsessive personality, he would see this as a personal attack against his professional status as a nurse.

In this day and age the public expect professionals to be accountable for their actions. Allegations of this nature must be investigated thoroughly and promptly and, sometimes, there is a cost involved, a cost that is most often borne by the professionals involved in caring for the accusers. While it is important to balance the interests of the staff and the patients in dealing with these situations, it is inevitable that one of the burdens of being a professional caregiver in this environment is the acceptance that allegations of this nature must be examined independently and impartially without the assistance or interference of the accused.

In the instant case, the Employer had no alternative but to investigate the allegations and, in my view, did so in a logical and practical manner having regard to the nature and severity of the allegations. Therefore, the grievance is dismissed.

The parties have presented comprehensive and thoughtful submissions about my jurisdiction to award special, punitive and tort damages and have provided me with numerous cases to support their position. In view of my decision on the merits of the grievance, I do not have to comment on those submissions.

Dated at Toronto, this 9^th day of October, 2007.