Canadian Employment Law Today

June 20, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was there just cause for dismissal? OR Was there insuffi cient cause? Support worker fi ghts assault charge, termination THIS INSTALMENT of You Make the Call involves a personal support worker who was accused of hitting a client. Catherine Hector was an overnight sup- port worker for Community Living To- ronto (CLT), an operator of group homes and services for clients with intellectual dis- abilities and their families. Hired in 2001, her job duties included looking after adults with special needs in a CLT-operated resi- dence with self-contained apartments in a high-rise building in Toronto. As an over- night 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 over- night 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 re- quiring 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. e daytime support worker asked the client if something had happened to his leg, to which the client responded, "no." A sec- ond inquiry received the same answer, so the worker asked him "Who hit you?" e 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 head- phones 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. e police inter- viewed the client, who said the bruises on his leg were from Hector. e 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 fl oor 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 confi rmed that she had seen something on the fl oor that could have been feces. e 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 identifi ed the hitting as intentional. e client's roommate said he had been in the living room and didn't know what had hap- pened 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 Hec- tor's employment eff ective Feb. 4, 2014. Hector's criminal trial took place in No- vember 2014 and the trial judge acquitted her of the charges due to inconsistent evi- dence from the client's report of the inci- dent. e union then grieved Hector's dis- missal. IF YOU SAID there was insuffi cient cause, you're right. e arbitrator disagreed that the investigation was unfair, as CLT used an external consultant, interviewed all rel- evant witnesses, and gave Hector the op- portunity to present her version of events. e fact that the investigators determined Hector had committed the assault didn't mean the investigation was unfair, the ar- bitrator said. However, the arbitrator found the evi- dence supporting the conclusion Hector committed the assault was not persuasive. e client said nothing for days, then ini- tially 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 un- reliable 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. " ere 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 benefi ts. For more information see: • Community Living Toronto and CUPE, Lo- cal 2191 (Hector), Re, 2017 CarswellOnt 21552 (Ont. Arb.).

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