Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 February 16, 2015 ArbitrAtion AwArds received a letter of warning, a one-day suspension, a two-day suspension and a three-day suspension. She was then given another three-day suspension, a five-day suspension and a 10-day suspension. while the four former rep- rimands stand, the latter three were under consideration for this case. Throughout that time period, there had been several incidents warranting discipline, such as tak- ing unauthorized leave for two days and insubordination. The union, the Canadian Union of Public Employees (CUPE), ar- gued Voss had been harshly dis- ciplined because management is opposed to her representational activities. Arbitrator sides with company The company argued otherwise and arbitrator Russell Goodfellow sided with Toronto Hydro at the hearing. Goodfellow said Voss's role as a union steward had little to do with anything. In fact, most evidence pointed to an employee who was "unnec- essarily confrontational and dis- respectful towards management," he said, adding that, "the show is not Voss's to run." However, Goodfellow said some balance on the part of both parties needs to be taken into con- sideration. "Something of a line in the sand appears to have been drawn towards Voss that has spawned a degree of intolerance. not every action deserves a reaction. Some to and fro is to be expected and accepted," Goodfellow explained. But the change needs to come from the employee, not the em- ployer. As such, Goodfellow upheld the grievance — with respect to the penalty only. He ordered that the appropri- ate penalty is not a 10-day suspen- sion but rather a second, complete five-day suspension, one that (ac- companied with the previous five- day suspension) would only be ac- companied by five, not three days' loss of pay. The three-day suspension was dismissed and the company was ordered to compensate Voss for the five days of pay she lost. Reference: Toronto Hydro and the Canadian Union of Public Employees (CUPE) Local 1. Russell Goodfellow — arbitrator. Sven Poysa for the company, Mark Wright for the union. Jan. 21, 2015. Hidden camera reel leads to firing in ontario A personal support worker at St. Joseph's at Fleming Long-Term Care Facility was dismissed after footage from a hidden camera in a resident's room showed abuse by a worker. A local television journalist ap- proached the Ontario-based em- ployer in May 2013 with footage captured on a hidden video cam- era placed in a resident's room by her son. The video shows personal sup- port worker Peggy Perrault en- gaging with the resident — then 85 years old and suffering from Alzheimer's — in acts the em- ployer classified as misconduct or abuse of the resident. Perrault, an employee with the facility since 2007, was fired for what St. Joseph's called the abuse and neglect it witnessed in the footage. Perrault's conduct demon- strated a fundamental lack of judgment as well as a disregard for the physical and emotional well- being of the resident, according to the employer. It argued Perrault's explanation for her conduct was wholly unsat- isfactory. In the footage, Perrault is seen attempting to offer care to the resident after finding the resident had soiled herself. The resident resists Perrault, slapping her. Perrault physically restrains the resident and eventually removes her from the bed, grabbing her by the legs, arms and neck. The resident is later returned to bed and Perrault continues to offer care, eventually waving a soiled cloth in the resident's face. The resident then becomes agi- tated and resumes her efforts to resist care. Perrault finishes providing care and leaves the room. Marion Schwiebert, acting director of care at the facility at the time of Perrault's firing, said the resident's care plan provided warning notes that the resident can strike out or yell at staff offer- ing care. The care plan indicates that when the resident refuses care, staff should not attempt to physically restrain her, but rather leave and re-approach. Schwiebert said she would be concerned Perrault — who works alone and largely unsupervised — could continue similarly if reinstated. The employer argued the "horrifying" conduct captured by the hidden camera has no place in a long-term care facility. Employees are held to a high standard of care, the employer said, due to the vulnerabilities of the elderly residents. St. Joseph's insisted the only way to ensure this type of incident never occurred again was to up- hold Perrault's discharge. Union argues against dismissal The Canadian Union of Local Em- ployees (CUPE) Local 2280, how- ever, argued Perrault's conduct — when viewed in context — is not abusive and does not provide just cause for termination. Perrault's conduct was not willful or inten- tional and she accepted respon- sibility for her actions and apolo- gized for her deficient care. while the union accepted some form of discipline was warranted, it argued dismissal was excessive. Perrault said she believed getting the resident cleaned up as quickly as possible was the safest way to proceed. She had no idea how long the resident had been sitting in the soiled bedding, and testified she was worried the resident's skin could become irritated. Perrault went on to explain that she showed the resident the soiled cloth so the resident would understand why she needed cleaning, and would then stop resisting care. Perreault gave the resident the best possible care in difficult cir- cumstances, and would never hurt any of her residents, she said. After reviewing the footage and testimony, arbitrator John Stout said he could find no rea- son why Perrault did not leave the resident and re-approach with another employee, as per the facil- ity's standard procedure when the resident refuses care. "The grievor knew or ought to have known that she should have respected the resident's right to refuse care," Stout said. "I find that the grievor's conduct, as depicted in the video clips, demonstrates a fundamental lack of judgment, falling within the definition of abuse." Stout found Perrault exagger- ated the resident's condition and downplayed her own culpabil- ity, leaving him unconvinced she had learned from her mistake and would not act in a similar manner in the future. "I find the employer had just cause to terminate the grievor's employment," Stout ruled, dis- missing the grievance. Reference: St. Joseph's at Fleming Long-Term Care Facility and the Canadian Union of Public Employees (CUPE) Local 2280. John Stout — arbitrator. Kimberly Pepper for the employer, Gavin Leeb for the union. Jan. 22, 2015. employees in long-term facilities are held to a high standard of care, the employer said, due to the vulnerabilities of the elderly residents.

• Cover