You Make the Call
This instalment of You Make the Call involves a personal support worker who was accused of hitting a client.
Catherine Hector was an overnight support worker for Community Living Toronto (CLT), an operator of group homes and services for clients with intellectual disabilities and their families. Hired in 2001, her job duties included looking after adults with special needs in a CLT-operated residence with self-contained apartments in a high-rise building in Toronto. As an overnight support worker, Hector was usually the only staff member present overnight, looking after clients in three apartments, doing medication checks, ensuring clients were in bed when staff left, and performing cleaning and laundry duties.
On Oct. 1, 2013, Hector worked an overnight shift before being off for a few days. No complaints were made after her shift or doing the next couple of days. However, on Oct. 3, a daytime support worker at the residence noticed that one client — who had fetal alcohol syndrome with cognitive, emotional, and psychological problems requiring 24-hour supervision and a history of telling lies to staff — had marks on his left leg. Another staff member saw the marks and they determined them to be bruises.
The daytime support worker asked the client if something had happened to his leg, to which the client responded, “no.” A second inquiry received the same answer, so the worker asked him “Who hit you?” The client then said he had been hit, showed them a mop in the cupboard and told them Hector had hit him with it. He then said he had been watching a movie with headphones on and when he didn’t turn them off at Hector’s request, she hit him with the mop handle. He was unable to say when the incident happened.
Senior management was informed and they called the police. The police interviewed the client, who said the bruises on his leg were from Hector. The police charged Hector with assault with a weapon and CLT told her not to report to work until further notice.
A CLT program manager investigated alongside an external consultant, and they interviewed the client and Hector. Hector said she had to clean up feces on the floor of the client’s apartment and she may have accidentally hit him while doing so, but she didn’t know how the client could have developed bruises. Another staff member confirmed that she had seen something on the floor that could have been feces.
The client reiterated that his bruises came from Hector hitting him, but didn’t say if she used the mop to do so. He had no recollection of Hector cleaning up feces, but identified the hitting as intentional. The client’s roommate said he had been in the living room and didn’t know what had happened in the bedroom, but then said he saw the incident in the bedroom.
CLT determined the assault took place as the client described and terminated Hector’s employment effective Feb. 4, 2014. Hector’s criminal trial took place in November 2014 and the trial judge acquitted her of the charges due to inconsistent evidence from the client’s report of the incident. The union then grieved Hector’s dismissal.
You Make the Call
Was there just cause for dismissal?
OR
Was there insufficient cause?
If you said there was insufficient cause, you’re right. The arbitrator disagreed that the investigation was unfair, as CLT used an external consultant, interviewed all relevant witnesses, and gave Hector the opportunity to present her version of events. The fact that the investigators determined Hector had committed the assault didn’t mean the investigation was unfair, the arbitrator said.
However, the arbitrator found the evidence supporting the conclusion Hector committed the assault was not persuasive. The client said nothing for days, then initially said nothing had happened, and only said Hector had hit him after the daytime support worker asked him leading questions about who had hit him. Given the client’s cognitive and psychological problems and history of not telling the truth, it was an unreliable account, said the arbitrator.
“Considered together, all these facts and factors lead me to the conclusion that the employer has not established that (Hector) committed any assault,” the arbitrator said. “There are simply too many inconsistencies or uncertainties in the evidence to enable me to conclude on the balance of probabilities that (Hector) assaulted (the client).”
Without evidence Hector hit the client, the arbitrator found there was no just cause for her suspension and discharge. CLT was ordered to reinstate her with compensation for lost salary and benefits.
For more information see:
• Community Living Toronto and CUPE, Local 2191 (Hector), Re, 2017 CarswellOnt 21552 (Ont. Arb.).
