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6 | May 29, 2019 Cases and Trends Canadian HR Reporter, 2019 gradual way to try to help them. Azimullah's duties as a client services worker included personal care of the resi- dents, 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 oc- curred 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 disci- pline on his record. In June 2013, a 63-year-old man with a history of alcoholism and clinical depres- sion related to a traumatic brain injury came to stay at Seaton House, moving to the Annex program two months later. e 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. e shift supervisor decided to give GS a timeout — a regular practice of client discipline that involved re- moving the client from Seaton House tem- porarily. 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. ere were additional interactions with Seaton House staff and GS pounded on the glass of the security post. Afterwards, a lac- eration 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 e 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 in- dicating he saw Azimullah bend GS's finger back, but the supervisor wasn't happy with its details and asked him to revise it. Eventu- ally, 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 con- cern and hinted that Azimullah may have been responsible. e city of Toronto, which operated Seaton House, conducted an investigation into the incident. It interviewed Azimul- lah, but Rodriguez only submitted a writ- ten statement. In his statement, Rodriguez said that while they were on the elevator, GS tried to hit him with his left hand but Az- imullah 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, in- cluding Azimullah with a hand on the back of GS's head and an arm on his upper chest. e 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 vio- lence policy, charter of expectations, shelter standards, and code of conduct. e union grieved the dismissal, arguing there was no real proof Azimullah was re- sponsible for the injury. e 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 Ro- driguez's claim Azimullah used a choke- hold was questionable, as the video footage showed him with a hand on GS's head and then an arm across his chest. e position of the wheelchair was in accordance with stan- dard 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. e arbitrator noted that everyone's posi- tion in the elevator could have led Rodriguez to think he observed Azimullah performing a chokehold on GS. In the heat of the mo- ment, 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 e arbitrator found Rodriguez's claim about the finger bending was consistent in the initial incident report, his written state- ment 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. erefore, it was likely Azimullah did, in fact, bend GS's finger back to the point where it hurt him. ere was no evi- dence the laceration was caused by this ac- tion — it could have happened during the security post altercation — but that didn't matter, as the act itself was worthy of termi- nation, 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 dismiss- ing the grievance and upholding Azimul- lah's termination of employment. For more information see: • Toronto (City) and CUPE, Local 79 (Azimul- lah), Re, 2019 Carswell 6363 (Ont. Arb.). « from HOMELESS on page 1 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as reprisals for wrongful dismissal suits, workplace violence for healthcare workers, and the discriminating implications of uninformed assumptions. You can view the blog at www.employmentlawtoday.com. Act of bending resident's finger back hard to miss

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