Co-worker’s statement was only evidence employee inflicted pain on shelter resident, but there was no reason not to believe it: Arbitrator
An Ontario homeless shelter worker’s firing was not due to an unfortunate twist of fate, but rather a twist of a finger. A co-worker’s account of the worker using unnecessary force — the aforementioned finger twist — on an unruly resident was sufficient to provide just cause for dismissal, regardless of whether a visible injury on the resident’s hand was caused by the event or a later incident, an Ontario arbitrator has found.
Faizal Azimullah was employed as a client services worker at Seaton House, a homeless shelter in downtown Toronto. Azimullah’s work was in the Annex Harm Reduction Program, a 110-bed unit within Seaton House for chronically homeless who are also mostly alcoholics. The program provided a measured amount of alcohol for its residents rather than completely denying them as a gradual way to try to help them.
Azimullah’s duties as a client services worker included personal care of the residents, including controlling behaviour that could sometimes be erratic and violent. He had to balance safety with the vulnerability and dignity of the facility’s clients. All client services workers were required to complete incident reports if anything of note occurred during their shifts.
Azimullah was first hired to work at Seaton House in December 2009 and moved to the Annex unit in 2011. He had no discipline on his record.
In June 2013, a 63-year-old man with a history of alcoholism and clinical depression related to a traumatic brain injury came to stay at Seaton House, moving to the Annex program two months later. The resident, referred to as GS, was in a manual wheelchair because he was missing part of his left leg. He was also prone to outbursts of aggression, including physical abuse of staff.
On July 7, 2016, GS was verbally abusing staff, including the acting shift supervisor who had been involved in an incident with him the previous day. The shift supervisor decided to give GS a timeout — a regular practice of client discipline that involved removing the client from Seaton House temporarily. He asked Azimullah and another staff member — Raphael Rodriguez, who was on his first shift in the Annex program — to remove GS from the building.
Azimullah and Rodriguez pushed GS’s wheelchair to the elevator, took it down to the main floor and pushed him off the property. Shortly thereafter, GS re-entered Seaton House and created a disturbance outside the security post in the main lobby. There were additional interactions with Seaton House staff and GS pounded on the glass of the security post. Afterwards, a laceration was found on his left hand and the base of his little finger. GS was sent to the hospital, where he received several stitches.
Hand injury investigated
The acting shift supervisor learned of GS’s hand injury and asked Rodriguez to meet with GS and find out what had happened. Rodriguez completed an incident report indicating he saw Azimullah bend GS’s finger back, but the supervisor wasn’t happy with its details and asked him to revise it. Eventually, the report was scrapped, so Rodriguez was concerned the supervisor was blaming him for the injury or for suppressing what happened. He told colleagues about his concern and hinted that Azimullah may have been responsible.
The city of Toronto, which operated Seaton House, conducted an investigation into the incident. It interviewed Azimullah, but Rodriguez only submitted a written statement. In his statement, Rodriguez said that while they were on the elevator, GS tried to hit him with his left hand but Azimullah grabbed GS’s left little finger and twisted it at an almost 90-degree angle. Azimullah then placed GS in a chokehold while Rodriguez held GS’s other arm down. Azimullah asked GS if he was going to shut up, and when GS replied in the affirmative, Azimullah released the finger.
City management was also able to view security video of Azimullah and Rodriguez in the elevator with GS, which depicted GS trying to strike Rodriguez with his left arm and the two of them restraining him, including Azimullah with a hand on the back of GS’s head and an arm on his upper chest.
The city determined that the restraint methods Azimullah used were improper — including a chokehold that was related to an improper positioning of the wheelchair in the elevator — and he was responsible for GS’s physical injury. It terminated his employment for violating its workplace violence policy, charter of expectations, shelter standards, and code of conduct.
The union grieved the dismissal, arguing there was no real proof Azimullah was responsible for the injury. The video footage from the elevator didn’t show the specific action that Rodriguez cited as causing the injury, the employer’s case relied entirely on Rodriguez’s statement, and the investigation didn’t properly examine whether GS could have hurt his hand in the second incident at the security post.
Initially, the arbitrator found that Rodriguez’s claim Azimullah used a chokehold was questionable, as the video footage showed him with a hand on GS’s head and then an arm across his chest. The position of the wheelchair was in accordance with standard practice, so it was unlikely Azimullah was in a bad position in which he would need to resort to a chokehold, as the city surmised. Even if the wheelchair was in a bad position, the arbitrator noted a mitigating factor was that no training had been provided to client services workers on restraining clients in wheelchairs.
The arbitrator noted that everyone’s position in the elevator could have led Rodriguez to think he observed Azimullah performing a chokehold on GS. In the heat of the moment, much of Rodriguez’s account was subjective and he may not have been able to observe accurately. However, one thing he could have clearly seen was Azimullah bending GS’s finger back as a way to control the resident with pain, said the arbitrator.
Co-worker had no reason to lie
The arbitrator found Rodriguez’s claim about the finger bending was consistent in the initial incident report, his written statement for the investigation, and questioning during the arbitration hearing. He was new to Seaton House — “he had fresh eyes and no allegiances” — and had no reason to lie about it or purposely damage Azimullah’s career. Therefore, it was likely Azimullah did, in fact, bend GS’s finger back to the point where it hurt him. There was no evidence the laceration was caused by this action — it could have happened during the security post altercation — but that didn’t matter, as the act itself was worthy of termination, said the arbitrator.
“I find that (Azimullah) bent GS’s finger back, which, in itself, justifies termination, because the infliction of pain as a means of control of a very vulnerable client can never be excused,” the arbitrator said in dismissing the grievance and upholding Azimullah’s termination of employment.
For more information see:
• Toronto (City) and CUPE, Local 79 (Azimullah), Re, 2019 Carswell 6363 (Ont. Arb.).
