The grievors had been suspended with pay without being given the option of having a steward present. The arbitrator found the claim that discipline imposed without the presence of a steward was void to be 'bizarre,' but did reduce the penalty.
Two Personal Support Workers (PSW) employed at a long-term care facility were terminated following allegations they had abused a resident.
The union grieved, disputing the substance of the charges and alleging the employer’s failure to observe the workers’ contractual rights to union representation rendered the discipline void.
G.T. and P.W. had about 10 years’ experience. Neither worker had any discipline on their record. Both were well regarded by their co-workers.
On the morning of March 29, 2011, the shift supervisor J.B. — a Registered Nurse — went to the room of a resident who had failed to show up for breakfast and morning medications.
On entering the resident’s room, J.B. witnessed G.T. and P.W. restraining the resident on her bed while they removed her soiled clothing. The resident, who suffered from Alzheimer’s and dementia, was in an agitated state and was yelling and kicking.
J.B. reported the incident. Later that morning G.T. and P.W. were relieved of their time cards and told they were being sent home, with pay, pending an investigation. No reason was given for this action at the time.
Investigatory meetings with a union steward in attendance were held on April 13, 2011. G.T. and P.W. were terminated for alleged resident abuse on May 6.
Representation rights violated
The union questioned the credibility of J.B.’s testimony and the substance of the charges. The union also said the employer failed to follow the provisions under section 11 of the collective agreement concerning notification of discipline and the right to union representation. The employer’s violation of these “fundamental” rights rendered the discipline null and void, the union said.
The employer said the terminations were justified. There was a zero tolerance policy concerning resident abuse at the facility and there was no reason to dispute the testimony of J.B.
The employer argued sending the workers home on the morning of the incident did not constitute discipline. Even if there was a breach of the collective agreement, the employer said, the grievors suffered no prejudice as a result and it would be wrong in the circumstances to invalidate the terminations based on a violation of section 11 of the collective agreement.
The Arbitrator agreed.
J.B.’s testimony was credible. Standards at the facility and rights established by the Residents’ Bill of Rights under the Long-Term Care Homes Act, 2007 gave residents the right to refuse care and be free from any physical restraint. G.T. and P.W. had been trained and were aware of the rights of residents.
While it may have been the judgment of G.T. and P.W. that their actions were necessary because the resident was better off with a change of clothes, that was not their call to make, the Arbitrator said. Discipline was warranted.
The Arbitrator agreed the employer had violated the collective agreement when it failed to notify G.T. and P.W. on the morning of March 29 that they were being summoned to a meeting where discipline would be imposed and that they had the right to have a union representative present.
However, the Arbitrator rejected the argument that the employer’s violation of a term in the collective agreement could or should render the discipline null and void.
“Misguided to the point of being bizarre”
“The notion of action being void because it was taken in violation of a contract is unknown and meaningless in the law of contracts,” the Arbitrator said.
The line of argument that discipline may be automatically rendered null and void because of a violation of a procedural, or even a “fundamental” right under the collective agreement, was drawn from the rules of statutory interpretation and misapplied in the adjudication of collective agreements, the Arbitrator said.
“In my respectful view, while the use of [this argument] was undoubtedly available to the Court of Appeal in Re Valade and Eberlee, since the employer there had disregarded a procedural provision of a statute, its use in the interpretation of collective agreements is misguided to the point of being bizarre.”
The key focus of a grievance arbitration should be on interpreting the intent of the parties based on the language they negotiated, the Arbitrator said.
“It follows that only if there is a sound basis within the language of the collective agreement for concluding that the parties intended the violation of a union representation clause to have the consequence of invalidating the resulting discipline should arbitrators hold that the discipline should be invalidated. In my respectful view, it is inappropriate for arbitrators to replace the language of the collective agreement with their own views and presumptions on what makes for good labour relations.”
In this case, where the rights of the grievors under the collective agreement were violated, it was appropriate for the Arbitrator to attempt to restore the grievors to the same position they would have been in had there been no breach of the agreement.
However, in this case, the Arbitrator said, G.T. and P.W. suffered no prejudice as a result of the employer’s actions.
The Arbitrator acknowledged that PSWs working in long-term care facilities are to be held to a high standard of conduct. Nevertheless, termination was not appropriate in this case, the Arbitrator said.
The workers had 10 years of service with no discipline. It was true their conduct fell within the employer’s definition of abuse, but their actions did not reflect either frustration or insensitivity towards the resident. Rather, the Arbitrator said, they made an error in judgment about what was in the best interests of the resident.
The terminations were replaced with two-month suspensions without pay.
