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Issue link: https://digital.hrreporter.com/i/1313257
other attendant while they were
washing her and the other atten-
dant raised her hand and brought
it down in what appeared to be a
slap. After the incident, Smykal-
ski turned off the lights and TV,
leaving the resident in darkness.
The footage also showed an-
other occasion where Smykalski
got shampoo in the resident's eye
while washing her hair roughly,
but not apologizing.
The resident's daughter noti-
fied the nurse in charge and St.
Michael's launched an investiga-
tion.
The director of resident care
spoke to the resident, who didn't
appear to be in distress but had
faint bruises on her arms. She
met with the resident's daughter
and granddaughter, who showed
her the video clips. Then she met
with Smykalski, who was shocked
when she was told about the video
footage and that she was under
investigation.
Smykalski said that she didn't
do anything wrong: she had done
her job and the resident was safe.
She apologized for allowing the
shampoo to get into the resi-
dent's eye but denied seeing any
resident abuse that should be re-
ported. She also said she had left
the door to the lit hallway open af-
ter turning off the TV and lights,
which was standard practice.
Smykalski and a union repre-
sentative met with the HR direc-
tor and the care manager the next
day, Oct. 5, and they terminated
her employment for cause. The
termination letter cited "serious
abusive behaviour, serious physi-
cal harm, rough handling and
serious emotional harm." It also
said that her failure to intervene
with or report the other atten-
dant's abuse of the resident was
a violation of St. Michael's zero-
tolerance abuse policy. The other
attendant was also dismissed.
The arbitration board noted
that the other attendant's alleged
slap of the resident "occurred
in a fraction of a second" while
Smykalski was involved in clean-
ing and changing the resident,
and even the video didn't show
an actual slap. Her claim that she
didn't see a slap was credible, said
the board.
The board also found that the
evidence supported Smykalski
assertion that she turned off the
TV and lights in the resident's
room, because she thought she
needed rest — it was evening
and the resident had just been
through a physically difficult
procedure. The resident had
dementia, was a falls risk and
Smykalski made a reasonable as-
sessment that she needed peace
and quiet, said the board, adding
that the poor quality of the video
wouldn't show if the door was
left open.
The board determined that
Smykalski didn't abuse the resi-
dent and didn't witness any abu-
sive conduct by her colleague.
The shampoo in the eye was ac-
cidental, and while the resident's
daughter may have felt Smykalski
treated her in an uncaring way,
that was not the same as abuse,
said the board.
The board found there was no
cause for discipline and left it to
the parties to determine the de-
tails of reinstatement and com-
pensation.
Reference: St. Michael's Long Term Care Centre and AUPE, Local 47. Robert Abells — chair. Craig Newman, for
employer. Jeff Jesse for employee. Nov. 2, 2020. 2020 CarswellAlta 2067
Family watched video of 'uncaring' treatment, not abuse
Worker denied making remarks but complaint supported
opinion with one of the other
EAs, Trisha Sophusson, about
how much the student was
pushed to do on her own. Before
Mensah could finish speaking,
Sophusson spoke over her in a
raised voice. Mensah suggested
that it would be good if they were
"all on the same page," but So-
phusson responded by saying: "I
don't like you. You have no idea
who those people are."
The third EA and the teacher
left, but Mensah and Sophusson
continued to argue. Sophusson
commented about how high the
bar was and gestured that Men-
sah's was low. Mensah said they
needed to have a level of respect
for each other, but Sophusson
said she didn't have to respect her
because, "I am a mother and a tax-
payer."
Mensah felt this comment stig-
matized her and made her feel
like she didn't belong. She asked,
"And I am not a mother and a tax-
payer?" to which Sophusson re-
plied, "At least I am from here."
Mensah felt the comment re-
lated to her race and ethnicity.
She tried to apologize to bring
things back to a professional
level, but Sophusson called
Mensah unprofessional for talk-
ing with hand gestures, which
Mensah also felt was an attempt
to degrade her cultural back-
ground as it was common for
people of her ethnicity to talk
with their hands.
Two days later, Mensah filed a
complaint with the school district
board claiming Sophusson had
verbally attacked her based on
her race and her comments were
a "personal dig at her character."
She added that she had been open
about mental health issues she
had had and Sophusson's com-
ments were "a low blow."
The school district investigat-
ed and on April 6 issued a writ-
ten reprimand to Sophusson for
speaking in an "inappropriate,
angry tone" to her coworker,
making "inappropriate and un-
necessary comments" that esca-
lated the conflict between them,
pointing and gesturing towards
her coworker, and making a com-
ment based on her coworker's
racial and ethnic background.
The reprimand stated that So-
phusson's behaviour "constitutes
harassment and discrimination"
and further incidents could re-
sult in "a more severe disciplin-
ary response, up to and including
termination."
Sophusson denied she made
the comment related to Mensah's
race and ethnicity or gestured in-
appropriately during the meeting
and the union grieved the rep-
rimand, noting that Mensah ac-
cepted no responsibility for her
part in the argument.
The arbitrator found that
there was no evidence Mensah
"was motivated to invent a false
accusation" against Sophusson
— they apparently had a friendly
relationship previously, though
Sophusson tried to downplay
that. Mensah's complaint and
account of the incident were
straightforward and consistent.
In addition, there was evidence
Mensah experienced anxiety af-
terwards. As for Sophusson's ac-
count of the incident, the arbitra-
tor characterized it as self-serving
and inconsistent.
The arbitrator also disagreed
with the union's argument that
Mensah didn't accept any respon-
sibility for her role in the matter,
as Mensah acknowledged that
she tried to apologize for letting
things deteriorate and remained
focused on the purpose of the dis-
cussion — the term goals for the
student.
"The evidence establishes that
it was [Sophusson], not Mensah,
who levelled the insults; it was
she who passed judgment, as she
had done with others of her co-
workers, not Mensah," said the
arbitrator in upholding the writ-
ten reprimand and dismissing the
grievance.
Reference: School District No. 43 and CUPE, Local 561. Joanie McEwan — arbitrator. David Woolias, Warren
Woodhurst for employer. Susanna Quail for employee. Oct. 23, 2020. 2020 CarswellBC 2757.