FPSLREB Decisions

I. Individual grievances referred to adjudication

1 I have been seized with three grievances from Gloria Baptiste (“the grievor”). The first grievance deals with a suspension with pay dated August 25, 2006. The second deals with a suspension without pay dated September 5, 2006. The third grievance relates to a termination dated April 10, 2007. All three grievances were referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the Act”). Counsel for the employer raised a jurisdictional objection about the adjudicability of the two suspension grievances, arguing that the suspensions were administrative, that they did not constitute disciplinary action and that hence they did not fall under paragraph 209(1)(b) of the Act.

2 At the hearing the grievor’s representative withdrew the grievance against the suspension with pay (PSLRB File No. 566-02-1010). As a result, this file is closed. Therefore, I remained seized of the grievances against the termination (PSLRB File No. 566-02-1243) and the indefinite suspension without pay (PSLRB File No. 566-02-858).

3 The grievor is a registered nurse and was employed by the Correctional Service of Canada (CSC or “the employer”) in that capacity at Matsqui Institution (“the institution”) for most of her approximately 17-year career.

4 The events giving rise to the three grievances occurred at the institution mainly in the relatively short period of August 16 to 21, 2006. At the time of the events giving rise to the grievances, the grievor did not have a disciplinary record. The evidence presented at the hearing was common to all three grievances.

5 The allegations against the grievor are tenfold and can be summarized as follows:

• She allegedly administered incorrect medication to inmate X on August 20, 2006, which resulted in an injury to that inmate. She also allegedly administered incorrect medication to three other inmates during the relevant period (inmates S, J and Y).
• She allegedly altered the Narcotic Control Drug Record (NCDR) for those three inmates (S, J and Y).
• She allegedly altered the NCDR morning narcotic count completed by Nurses Mathieson and Plate on August 21, 2006.
• She allegedly did not follow standard procedures when administrating changes to the NCDR between August 16 and 21, 2006.

6 It should be noted that, from the same circumstances, the grievor also filed two interpretation grievances that were referred to adjudication. A decision was issued for them in Baptiste v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 105.

7 I will deal first with the termination grievance, as it is the most substantive of the three grievances. I acknowledge that it was a long, arduous and complex hearing, but the main question that I must answer can be put in simple terms: Was the employer justified in terminating the grievor’s employment? This question in turn can be broken down into the following three elements: Has the employer proven its allegations? Did the grievor’s conduct warrant discipline? Did the grievor’s conduct warrant termination?

8 Although I am completely familiar with the vast amount of material on record, in reaching my decision, I dealt only with the evidence and argument that were relevant to the main question. Anything that I deemed irrelevant to the main question was therefore set aside.

II. Summary of the evidence

9 Both parties signed an agreed statement of facts, which reads as follows:

…

The parties have agreed to the following facts:

1. Ms. Gloria Baptiste started her employment with the Correctional Services of Canada on April 30, 1990.

2. Ms. Baptiste was working at the Matsqui Institution for most of her career.

3. Ms. Baptiste’s was a registered nurse at the NU-HOS-03 group and level. Her terms and conditions of employment were governed by the Agreement between the Treasury Board and The Professional Institute of the Public Service of Canada, Health Services Group, expired on September 30, 2007.

4. Three (3) memoranda dated September 5, 8 and October 13, 2006, were given to Ms. Baptiste in order to conduct a disciplinary investigation into her allegedmisconduct.

5. The Employer put Ms. Baptiste on administrative leave with pay from August 25 to September 4, 2006. Ms. Baptiste takes the position that she was suspended during this period.

6. Ms. Baptiste was suspended indefinitely without pay on September 5, 2006.

7. Ms. Baptiste’s employment was terminated on April 10, 2007.

8. Ms. Baptiste is grieving her suspension and her termination.

10 In the pre-hearing conference discussions with the parties, I issued a disclosure order to the employer on May 29, 2008.

11 At the beginning of the hearing on June 2, 2008, the grievor’s representative requested that I issue the following disclosure order to the employer’s counsel, which I did.  The June 2, 2008 request was again discussed with the parties. They agreed to the following disclosure order. It was also mentioned to the parties that this matter would be reflected in my decision, and it reads as follows:

I am making an additional disclosure order to the employer that I will qualify as complementary to my order dated May 29, 2008. First, both parties recognize and agree that the initial order of disclosure of May 29, 2008 was complied with but that further information was required from the employer for Harinder Mahil, the PIPSC representative, for preparation by the PIPSC medical expert to cover the following issues specifically related to the employer’s first witness, to be designated in these proceedings as “inmate X.”

The order is to provide to Mr. Mahil the following information relating to inmate X:

(1) The medical administration Record (MAR)

(2) His doctor’s progress reports

(3) The different medical prescription orders and any tests prescribed or ordered by any physician of inmate X

(4) A copy of photograph of alleged bruise on inmate “X”’s body requested in the initial disclosure order but not yet received.

Also it was agreed by the parties that the information released by the employer to the PIPSC representative will only be shared with the following representative of PIPSC, namely Mr. Mahil and Arlene J. Francis, the PIPSC medical expert and the grievor, Ms. Baptiste.

This order is to be executed today June 2, 2008 by the employer as mutually agreed by the parties before me… .

A. For the employer

12 The employer called 18 witnesses during the hearing. The parties agreed on how certain witnesses would be identified in my decision, for privacy and confidentiality reasons. I will provide an account of each witness’ testimony.

1. Inmate X

13 Inmate X testified that in 1999 he “smoked heroin,” became addicted and started breaking and entering to feed his drug habit. He was charged with and pleaded guilty to a number of counts of break and enter and possession of stolen property (a motor vehicle) and was at the time of the events serving a sentence of three years less four months at the institution.

14 In August 2006, inmate X was on three prescribed legal drugs at the institution, namely Voltaren (for back pain), Tylenol 3 (for pain) and Zoloft (sertraline, an anti-depressant first prescribed when he was at Ferndale Institution). The Zoloft prescription was for 150 mg per day. Inmate X’s testimony is that before August 2006 the prescribed Zoloft was as high as 250 mg per day. Inmate X’s prescribed medication was self-administered.

15 He was part of the inmates in a segregated unit called the Temporary Detention Unit (TDU). He and his cellmate (inmate C) were part of a group of five inmates who served meals daily to other inmates and who were remunerated at $5.00 per day for their meal services, which also gave them certain circulation privileges within the institution including being able to leave their cells earlier than other inmates.

16 On August 20, 2006, inmate X approached the grievor to replace the Zoloft prescription, which had ran out. When he returned to the evening medication line to pick up his regular dose of Zoloft, the grievor did not have his blister pack but she gave him six pills of what he thought was Zoloft in a small brown envelope. Inmate X testified that the grievor explained to him that she did not have 50 mg of Zoloft pills, so she issued him 6 tabs of 25 mg to replace the original prescription of 3 pills of 50 mg. The brown envelope was addressed to inmate X in handwriting along with the mention “Zoloft 150 mg dose X 6 tabs (25 mg)” (Exhibit E-1).

17 Inmate X’s testimony is that he returned to his cell and that he swallowed four of the six pills. He realized that the remaining two pills did not correspond to what he thought was the generic name of Zoloft (sertraline), and he did not take them from the brown envelope. The two remaining pills were entered into evidence (Exhibit E-2), and are in my possession, by consent of the parties. The evidence is that Zoloft is an antidepressant and that the six pills given to inmate X by the grievor were Seroquel (Quetiapine Fumarate). That drug is an antipsychotic used clinically for adult patients suffering from schizophrenia and bipolar disorders.

18 Inmate X’s testimony is that he fell in his cell on the night of August 20, 2006, after ingesting four pills of the wrong medication, which created a disc problem in his back.

19 The next day, after serving breakfast at the usual time with his cellmate, he met with the acting chief nurse, Donna Raketti, and gave her the brown envelope, which she signed as received. Ms. Raketti then arranged radiography for inmate X of his bruise since she wanted to have it done as soon as possible; inmate X was being released in a few days. In addition, before giving Nurse Raketti the small brown envelope, inmate X spoke with Correctional Officer Sean Koch and obtained his signature on the brown envelope as a witness.

20 The radiography, done on August 22, showed a bruise the size of an egg, with no blood and no bone fracture or bony abnormality evident. Dr. F. Kuhn, the institution’s doctor, performed the radiography.

21 In cross-examination, inmate X admitted that he was a “hard drug addict”. He has consumed heroin, cocaine, LSD and morphine. He admitted that his numerous incarcerations to date were for breaking and entering and theft, all to feed his drug addiction.

22 On August 21, 2006 following his fall and injury in the cell, he filed a complaint. When the CSC informed him that it could not find the complaint, he said that he was not surprised since during his first time serving a sentence at the institution, he filed a complaint and never received a response.

23 Inmate X acknowledged that before August 2006 he had received his prescribed medications from the grievor without problems or receiving the wrong medication. Inmate X testified that he did not get into problems with other inmates, that he was never involved in any fights in prison and that he was not a cell thief.

24 Since inmate X and his cellmate were meal servers to other inmates in the institution, they were always unlocked earlier than other inmates. However, all cells were locked at 22:00. The cell lights are turned off at that time. Correctional officers circulate at one-hour intervals and check the cells from the exterior with flashlights. In other words, after lights-out, cells are dark.

25 Inmate X recalls writing his five-page complaint by hand (Exhibit E-4) on either August 21 or 22, 2006.

26 In his testimony, inmate X stated on several occasions that he does not recall anything that is not important to him. If a question is insignificant, or if it is insignificant to him, then he does not recall it.

27 Contrary to what the grievor stated, inmate X testified that on August 20 he did not swallow any medication in her presence. On the contrary, he took the six pills in the brown envelope and went to his cell. He took only four of them at approximately 19:00.

28 On August 21, inmate X met with Mr. Koch in the early morning, informed him of the August 20 incident and that he had fallen from the top bunk and injured himself after consuming the wrong medication, distributed by the grievor. Mr. Koch was one of the signees that identified the brown envelope. Inmate X also asked Mr. Koch to speak to the chief nurse about the incident and about being given the wrong medication.

29 When inmate X was asked, “Were you advised by your doctor that the Voltaren medication you are taking makes you sensitive to bruising easily?”  He answered in the negative.

30 Inmate X stated that his health has changed for the worse since the injury he suffered after ingesting the wrong medication on August 20, 2006.

31 On August 21, 2006, inmate X shared with Matt Lister, Correctional Supervisor, the information gathered by his sister about inmate deaths at the institution. During that discussion, he informed Mr. Lister of his intention to raise with his lawyer the matter of inmate deaths involving the grievor.

32 In cross-examination, inmate X testified that his medical history includes hospitalizations that resulted from being hit by a car, a skull fracture, a broken kneecap, a fractured collar bone on two occasions and a few back operations for a disc problem. All those medical incidents occurred before the incident in his cell.

33 It is of interest to note that, in spite of several officers being aware of the incidents of August 20 and 21, no departmental notes or logbook entries were made by any department that mentioned or related the incidents. On the other hand, a logbook entry was made in the TDU that mentions a conspiracy among a few of the inmate servers, with specific mention made of inmate X.

2. Inmate C

34 Inmate C was inmate X’s cellmate during the period of August 16 to 23, 2006.

35 At the time of the incident, inmate C was 34 years old and was serving a multi-year manslaughter sentence. He knew inmate X from a previous sentence served at the same penitentiary. In August 2006, both he and inmate X were part of the TDU and part of a five-member team of inmates who served meals to other inmates at the institution. Their server privilege allowed them greater circulation mobility within the institution, in addition to being paid $5 per day.

36 In his opening remarks, inmate C indicated that his parole for his manslaughter sentence was “coming up” and that he “didn’t want to get involved.” In addition, “all [he] wanted to do is to tell what [he] saw and knows about the incident. [He has] no other motive in this case.”

37 On the evening of August 20, inmate C returned to his cell at approximately 21:00. He was surprised that inmate X was already asleep, so he went to bed. Inmate C was asked if he was in the top or bottom bunk. He replied that he slept in the top bunk. He later said that inmate X woke him up when he got out of bed and urinated on the cell floor. Inmate C told him that he would have to clean it up in the morning. Shortly after that, inmate C was reawakened by inmate X when, according to inmate C, inmate X slipped in his urine and fell heavily to the floor. Inmate C then asked him if he was okay. Inmate X said “Yeah”, and crawled back into bed. This happened at around midnight.

38 The next morning, inmate X cleaned up his mess, and served breakfast with his cellmate as usual between 7:30 and 8:00 a.m. In addition, inmate C explained to inmate X what had happened, and inmate X showed him the small brown envelope. Inmate C noticed that inmate X had a bruise and a scrape but there was no blood.

39 It is clear from inmate C’s testimony that inmate X did not fall from his bunk and hurt himself but rather that he fell and hurt himself when he slipped in his urine.

40 At the hearing, inmate C stated that he had not seen or had any communication with inmate X since his release. Inmate C testified that he was taking medication in August 2006 for depression and that he was being assisted by his aboriginal elder counsel training because of his difficulty controlling his anger.

41 In cross-examination, inmate C testified that he did not consider pressing the emergency buzzer in the cell because he did not consider inmate X’s fall serious. Nor did he advise any correctional officers of inmate X’s fall the next day. Nobody from the institution asked inmate C for a statement about inmate X’s incident.

42 Inmate C stated that he has had memory problems dating back to his boarding school days. He has illegal-drug-related problems, like other inmates who traffic drugs in prison. Inmate C talked about Seroquel as a relaxant and a “buzz drug” commonly used by inmates. However, he insisted that he did not take Seroquel.

43 Finally, inmate C encouraged inmate X to denounce to the authorities the improper medication that he had been given. He is aware that inmate X filed a written complaint, although he did not read it. He insisted that “you must fill out a form to get something, otherwise you get nothing.”

3. William D. Thorpe

44 I declared Mr. William D. Thorpe an expert witness in forensic document examination based on his professional qualifications as a forensic document examiner with over 31 years of service at the Vancouver Police, of which 28 were in the Document Laboratory. He also has 22 years of private practice experience. To date, he has examined several thousand documents. He was accepted as an expert in 440 court cases at all levels of the courts in British Columbia, at the Court of Queen’s Bench in Manitoba and Alberta and at the Superior Court of Washington State.

45 At the beginning of his testimony, Mr. Thorpe presented two original documents (Exhibit E-6) that he personally examined that belonged to and were signed or initialled by the grievor. They were handwritten documents. Mr. Thorpe then compared the handwriting on those documents to the handwriting appearing on the small brown envelope (Exhibit E-1) and concluded that the writing and initials on the envelope were those of Ms. Baptiste.

46 That information and evidence was uncontested.

4. James Glen Brown

47 At the time of the August 20, 2006 incident, James Glen Brown (“the warden”) was the Warden at the institution. He is a seasoned veteran who started his career with the employer in 1978 at Kent Institution and progressed through the ranks at different institutions, including regional headquarters. From 1996 to 2005 he was Associate Warden at the institution. He has been the warden there since June 2005.

48 At the time of the events in question, Health Care Services at the institution reported to Kristan Brodoway, who was the acting Warden during Mr. Brown’s absence. He returned in late August 2006. Upon his return and after being fully briefed on the incidents of August 20 and 21,the warden decided to launch a disciplinary investigation. On the September 5, 2006, he advised Ms. Baptiste that she was suspended indefinitely without pay, pending the results of the disciplinary investigation. His reasons for the suspension were that Ms Baptiste was a risk to the institution because she allegedly improperly administered medication, which injured inmate X, she allegedly altered medical records and she was unable to account for those allegations. For those reasons the warden felt that the lack of confidence and trust prohibited reassigning Ms. Baptiste to other duties.

49 The warden acknowledged that the representative of the grievor’s bargaining agent, the Professional Institute of the Public Service of Canada (“the union”) asked that the disciplinary investigation take place as soon as possible. When he made that request, there were 4 allegations against the grievor.  However, after the August 31, 2006 order, during the investigation, 6 more allegations were added, for a total of 10.

50 The warden acknowledged that he was aware that Ms. Baptiste worked alone on the weekend of August 19 and 20, 2006. He acknowledged that, and as the evidence adduced showed, she worked 12-hour shifts each day of that weekend and that she was paid overtime on both days because of her volume of work.

51 The warden acknowledged that nurses deal with a minimum of 100 inmate patients per day during a 12-hour shift, plus any emergency interventions that may occur.  I was not presented with any evidence of emergencies from that weekend.

52 The warden agreed that during the early part of the investigation, the union submitted concerns to him about procedural fairness and the rules of natural justice. However the warden’s evidence was that, overall, the grievor’s evidence was not forthright and that she did not cooperate, especially once the investigation was broadened from looking into 4 to investigating 10 allegations.

53 The warden admitted that procedural fairness and natural justice were serious matters. However, he stressed that the allegations of wrongdoing and misconduct were critical.

54 The warden indicated that he was disturbed by the lack of substantive responses from the grievor to the different allegations, in spite of his specific written requests to both the union representative and to the grievor on several occasions.

55 The warden was concerned about the grievor’s lack of straightforwardness and the eventual refusals of both the grievor and her representative to participate in the investigation. He listened to the audio recordings of the investigation proceedings to gain a better understanding of the events of August 16 to 21, 2006.

56 Based on the grievor’s lack of accountability and lack of remorse, and after listening to the audio recordings of all the events and the whole of the testimony, the warden concluded that the grievor had committed misconduct.

57 The warden’s testimony is that he considered all the applicable mitigating factors, including the grievor’s approximately 17 years of employment with CSC (most of which was at the institution). He also considered the grievor’s discipline-free record. The evidence revealed that he was aware that the grievor had been transferred from the institution to another institution to ensure her security and safety while an investigation was being conducted following deaths of inmates at the Matsqui institution in the late 1990’s. The coroner’s investigation on those deaths concluded that Ms. Baptiste was blameless, and she was reintegrated into Matsqui after several months. Some other incident occurred at the institution and involved Ms. Baptiste before August 2006. The evidence is that the warden knew that some inmates did not like or appreciate Ms. Baptiste; she was the only African Canadian nurse in the institution. The warden’s full awareness and knowledge of Ms. Baptiste’s history at the institution is not in question. He was fully aware that the grievor was the target of racial slurs from certain inmates and they occurred regularly from the late 1990s.

58 The warden’s evidence is that he followed this case closely and that he was regularly briefed by his reporting staff on all aspects of the grievor’s work history at the institution.

59 The employer’s counsel introduced through the warden the following documentary evidence:

(a) Exhibit E-10 - the Values and Ethics Code for the Public Service,to be read in its entirety. At page 5 this 16-page exhibit under the heading of “Public Servants”, it specifically mentions that: “this Code forms part of the conditions of employment in the Public Service of Canada.” At the time of signing their letter of offer, public servants acknowledge that the Values and Ethics Code for the Public Service is a condition of employment. All public servants are responsible for ensuring that they comply with this Code and that they exemplify, in all their actions and behaviours, the values of public service [emphasis added by the undersigned].

(b) Exhibit E-11 – Correctional Service Canada’s mission and priorities as of August 2006, to be read in its entirety.

(c) Exhibit E-12 – a signed declaration by the grievor, in which she acknowledges receiving the “Standards of Professional Conduct” and “Code of Discipline” to be followed in her employment, signed July 22, 1993[emphasis added by the undersigned].

(d) Exhibit E-13 – the employer’s “Standards of Professional Conduct”, to be read in its entirety.

(e) Exhibit E-14 – Correctional Service Canada – “Code of Discipline” as of August 2006, to be read in its entirety.

60 In cross-examination, the warden acknowledged that he was aware of an incident several years before the incidents in this case, involving Ms. Baptiste when a few inmates of the institution accused Ms. Baptiste of killing an inmate by lethal injection. That death resulted in a coroner’s inquiry, which concluded that Ms. Baptiste was blameless. However, before the final verdict was known, she was transferred for her own protection and security to another institution. She worked at that institution for months before returning to resume her nursing duties. For that serious allegation of killing an inmate, the union representative underlined that the CSC had voluntarily agreed to accommodate Ms. Baptiste and to allow her to work in another institution. However, in this case, the employer refused to consider transferring her to another institution while waiting the investigation results which took about seven months.

61 The warden acknowledged that he was aware of another incident involving some inmates and Ms. Baptiste in 2004 that was also investigated.

62 When questioned about illegal drugs in the workplace, the warden stated that he was not surprised that illegal drugs circulated and indicated that not only was it a serious problem at the institution, it was also a growing problem in all federal penitentiaries in Canada. Security is vital and is a constant concern in institutions. The growing inside use of illegal drugs is a constant threat to the security of all institutions, according to him.

63 When the warden was questioned about Exhibits U-10 and U-11, two employer publications entitled Drugs in Correctional Facilities and Changing Offender Population, he stated that he agreed with their contents and that illegal drug use in the inmate population is increasing, with increasing consequences.

64 This illegal drugs issue goes to the heart of security in the prison system. The grievor’s representative presented in evidence the following as being closely tied to security issues: Exhibits U-12 (CSC - Officer’s statement form); U-13 (Regional Health Services-Health Services Orders); U-14 (Handbook and guidelines on report writing); U-15 (Commissioner’s Directive 568 “Management of Security Information”); U-16 (Commissioner’s Directive 568-1 “Recording and reporting of Security Incidents”); U-17 (Commissioner’s Directive 568-2 “Recording of Preventive Security Information”); U-18 (Commissioner’s Directive 568-4 “Preservation of Crime Scenes and Evidence”); and U-19 (Commissioner’s Directive 041 “Incident Reports”).

65 With respect to those exhibits, the warden stated that any acts involving inmates that could cause a disturbance must be recorded and acted on. He also underlined that all supervisors must comply with these directives.

66 In response to a question from the grievor’s representative about the employer not having inmate X’s written complaint, the warden stated that, if inmate X submitted a complaint, he would be surprised if the CSC did not have it.

67 The warden testified that he wanted the disciplinary investigation of the grievor conducted as thoroughly as possible and any potential witnesses, including the grievor and any possible CSC officers present at the medication line on August 20, 2006, interviewed as soon as possible while their information was still fresh in their minds.

68 The warden also mentioned that Assistant Warden Kristan Brodoway was the acting warden during his absence in August 2006. Immediately after being advised of the August 20 incident, Ms. Brodoway, with the assistance of several other staff members from the institution and Regional Headquarters, formed a team to gather all possible available information about the incident.

69 Acting Warden Brodoway made preliminary decisions based on the available input received from a number of persons. That input is contained in Exhibits U-51 (Tab 5 of a document titled “Disciplinary Investigation”, signed by Mr. Randie Scott, U-52 (Tab 6 of that document, signed by Mr. Matt Lister, and in “Disciplinary Investigation” (Tab 7 of that document) signed by Mr. Sean Koch.

70 The warden testified that after being briefed when he returned in August 2006, he was aware of inmate X’s declared intention to speak to the media. It is also a fact that the warden was fully briefed of all events and discussions by his management team, including the personal notes of Mr. Scott, dated August 22, 2006. It is also an undisputed fact that inmate X instituted legal proceedings subsequent to his release from the institution against CSC, the grievor and others for the August 20, 2006 incident.

71 The warden’s testimony is that he was not aware of violations of the “Policies and Procedures” of the College of Registered Nurses of British Columbia (CRNBC) by other nurses at the institution. However, he stated that all nurses in BC are subject to the statutes of the CRNBC as well as the statute and regulations governing the NCDR.

72 On July 18, 2006, Head Nurse Linda Dean made an elaborate proposal to the warden to reduce the hours of operation of the nurses in the Health Unit from 16 hours per day 7 days per week to 12-hours. She did so because of unfilled vacancies and the extensive overtime being worked by the nurses on staff (Exhibit U-45). After consulting with all concerned, the warden approved the reduced hours, effective mid-August 2006. The change meant that, among other things, one nurse would now work weekend shifts of 12 hours alone. Ms. Baptiste worked the first such weekend shift, on which the August 20, 2006 incident took place.

73 Warden Brown’s evidence in cross-examination was that he was aware of the union’s request in Exhibits U-2 (October 4, 2006) and U-3 (October 19, 2006). Both were addressed to him and requested that the grievor be transferred to another position pending the disciplinary investigation as had been done in the late 1990s and again in the mid-2004 investigation, when certain inmates made accusations involving Nurse Baptiste that were determined unfounded in the end. In those situations, she was allowed to work elsewhere within CSC while the lengthy investigations progressed.

74 However, the warden’s evidence was that he examined and considered all the elements of this case, including guidelines for discipline (Exhibit U-55) and that he made his decision based on the grievor’s lack of remorse, non-compliance, medication errors and failures, alterations of records, injury to inmate X, failure to account for her actions, all resulting in the overall breakdown of the bond of trust with her employer and his belief, as the final decision maker, that the grievor was no longer able to adequately perform her professional nursing duties for the CSC at any CSC institution.

75 Finally, Warden Brown concluded that when reaching his final decision as expressed in Exhibit E-9, he considered all possible relocation possibilities and still decided that the factors enumerated earlier applied and that nothing in Exhibit U-56 (press clippings of the deaths of inmates at the institution in 2000) entered into his decision to terminate the grievor’s employment.

5. Kristan Brodoway

76 At the time of the August 2006 incident, Ms. Brodoway was the acting warden during Warden Brown’s absence. She had been with CSC for 10 years and had worked at Ferndale and Mission institutions and at the institution since 2004.

77 At the time of the incidents, Ms. Brodoway quickly put together a fact-finding team composed of Matsqui colleagues and those with Regional Headquarter’s expertise. According to her, the decision to send Nurse Baptiste home with pay was made to “freeze the situation so that everybody was safe.” She testified that sending Nurse Baptiste home with pay was in part a precautionary measure and that it was not intended to be a disciplinary measure or a punishment. Initially the possibility of deploying the grievor to another institution was discussed, but after the debriefing of the warden, Ms. Brodoway was not involved in the final decision to suspend the grievor without pay or the decision to terminate her employment.

78 Ms. Brodoway testified that she realized, that based on the initial information, the issue at hand presented possible legal liability and was potentially a dangerous situation, if inmate X informed other inmates. Thus, it was a potential security incident. She was also aware of inmate X’s intention to seek outside legal advice on the August 20, 2006 incident and of his sister’s Internet search of Ms. Baptiste. She knew that inmate X filed a complaint on August 21, 2006, and she stated that she “was not surprised that it was lost.”

6. Sean Koch

79 Mr. Koch is a correctional officer (CX-02) and has 11 years of service in the public service, most of which was at the institution. Mr. Koch knew Nurse Baptiste when he worked in the TDU. On August 21, 2006, inmate X informed him and Nurse Raketti of falling from the top bunk of his bed and asked him to accept and sign the brown envelope (Exhibit E-1).

80 According to Mr. Koch, inmate X was not seriously injured from his fall. Had something serious happened, the contact buzzer in the cell could have been activated but it was not. In addition, because it was not considered a security incident, he wrote nothing in the logbook.

81 Mr. Koch confirmed that inmates made racial remarks towards Nurse Baptiste.

7. Diane Thiessen

82 Ms. Thiessen is currently the acting manager of clinical services for the CSC - Pacific Region and reports to the regional director of Health Services of the employer. She has been with the public service since 1992. As of the hearing, she had been with the CSC for five years.

83 Ms. Thiessen was appointed by the warden as the co-chair of the two-person disciplinary investigation team mandated to look into the incidents involving Nurse Baptiste. Before that, she had been part of two other disciplinary investigations.

84 Following an examination of the 10 allegations and the supporting exhibits, Ms. Thiessen concluded that changes to the NCDR were in many instances unreadable and that many changes were made after the fact, by “cooking the books” to the point that one was not sure what some inmates received in terms of prescribed medication. A typical example was demonstrated by an analysis of the changes in Exhibits E-15 and E-15A.

85 When asked how serious were Nurse Baptiste’s faults, Ms. Thiessen answered that they were a critical breach of professional standards, NCDR legislation and CSC policies.

86 In cross-examination, it was established that Ms. Thiessen led the disciplinary investigation committee on all medically related issues. She testified that many errors in the NCDR were made by other nurses, including Nurse Baptiste. She admitted that the “cooking of the books” was not reported to the Office of Controlled Substances as required. She also added that there was never any suspicion at the institution that Nurse Baptiste was stealing narcotics, that she was in any way involved in any kind of drug activity, or that she benefited personally either directly or indirectly from any drug-related activity. Ms. Thiessen’s main issues were safe and competent nursing care to inmate patients and proper recording procedures.

8. Katherine Mathieson

87 Nurse Mathieson has been working in the public service for 10 years, all of them with the CSC. She has been at the institution for the last five years. At the time of the August 2006 incident, she reported to Acting Head Nurse Donna Raketti.

88 Nurse Baptiste was her colleague at the institution. Nurse Baptiste was the only nurse who worked the weekend of August 19 and 20, 2006. On weekends, only the nurse on duty has access to the NCDR and is the only person with the keys to the pharmacy. Correctional officers have no keys to the pharmacy. No correctional officers are on duty in the institution’s Health Care Department on weekends.

89 On Monday morning, August 21, 2006, the only people with access to the NCDR were the following four nurses: Mses. Mathieson, Raketti, Plate and Baptiste. At approximately 13:00, Nurse Mathieson noticed that Ms. Baptiste was writing in the NCDR. She asked Ms. Baptiste if there was a problem. Ms. Baptiste replied “No, I was messed up on the week-end.” Shortly after, Nurse Mathieson looked at the NCDR and noticed that the morning pill count had been changed. Nurses Mathieson and Plate, who had jointly signed the morning pill count, recognized the handwriting on the change as the initials and signature of Nurse Baptiste (Exhibit E-15A) based on their experience of working with her for many years. They recognized her very characteristic signature. Nurse Mathieson then advised Acting Head Nurse Raketti of that incident.

90 Nurse Mathieson found the changed pill count unprofessional and disrespectful. She stated that “somebody who is a professional and who changes somebody else’s work without advising them in advance puts the originator’s license at risk. It is also disrespectful because part of the profession is that you must trust that another member of the profession will not change another person’s work, without first advising the originator of the work.”

91 On the issue of trust, Nurse Mathieson indicated that she did not trust Ms. Baptiste because the grievor was not accountable or responsible in her practice. She stated that she would not want to work with Nurse Baptiste again and that she would resign immediately were Nurse Baptiste reinstated to her position, stating that she was not prepared to put her license or her patients at risk.

92 Ms. Mathieson then advised Dr. Jason Wong, the institution pharmacist. He instructed her to make the appropriate notation on the NCDR, which she did, writing her initials. She identified Nurse Baptiste’s initials on the small brown envelope (Exhibit E-1). She confirmed that, at the institution, there were no 25 mg doses of Zoloft. She knows not only because of Dr. Wong’s testimony but also because, for the year before the August 2006 incident, she was an active member on a committee responsible for the institution’s pharmacy.

9. Jason Wong

93 Dr. Wong is the regional pharmacist responsible for the institution. Pharmacist Dr. Wong confirmed that inmate X was on the prescribed Zoloft, with a 150 mg daily dose taken once per day at bedtime, from July thru August 2006.

94 Dr. Wong also introduced into evidence Exhibit E-38 (Zoloft 50 mg capsule), which inmate X used in the absence of a 150 mg dose. He took 3 capsules of 50 mg to meet his daily medical needs. Dr. Wong confirmed that only 2 inmates took Zoloft, including inmate X in the relevant period, and that they both received only 50 mg capsule doses. Dr. Wong’s uncontradicted testimony was that, in the same period, no 25 mg Zoloft capsules were issued to the institution.

95 On August 21, 2006, Nurse Mathieson contacted him to advise him that a co-worker had unilaterally modified the NCDR and that she was not only personally disturbed but that her license to practice as a nurse could be called into question. Nurse Mathieson identified Ms. Baptiste as the person at fault from her knowledge and experience of Nurse Baptiste’s handwriting. He advised Nurse Mathieson that it was incorrect for anyone to modify another nurse’s signed entry in the NCDR without first advising the original signing nurse. He also testified that that action constituted an offense under the Controlled Drugs and Substances Act, S.C. 1996, c. C-19 (CDSA) (Tab 25 of the Disciplinary Investigation Document), specifically section 59 which reads as follows:

59. No person shall knowingly make, or participate in, assent to or acquiesce in the making of, a false or misleading statement in any book, record, return or other document however recorded, required to be maintained, made or furnished pursuant to this Act or the regulations.

96 Dr. Wong testified that Seroquel is a well-known medication in prisons that is often called “baby heroin.” Dr. Wong says that it is a downer and that inmates often use it as a barter drug. He confirmed that inmate X was not on that medication.

97 The evidence submitted by the employer with respect to both Zoloft and Seroquel, including the voluminous information in Exhibit E-37 (an excerpt from the Compendium of Pharmaceuticals and Specialties: The Canadian Drug Reference for Health Professionals (CPS)) reveals not only the adverse effects of both drugs on patients for cardiovascular system disorders, namely, palpitations; central and peripheral nervous system disorders, namely, headaches and dizziness; gastrointernal disorders, namely, nausea and diarrhoea; and psychiatric disorders, namely, insomnia, sexual dysfunction (males), somnolence, agitation, nervousness and anxiety.

98 The CPS also reveals in detail in both drugs that the prescribed medications must be closely supervised and monitored by the different health professionals. Furthermore, the CPS draws attention to all the contraindications and warnings about the different drugs and the negative effects of other legal drugs absorbed concurrently with the prescribed drugs. The warnings and contraindications also emphasize that those legal drugs should not be consumed with alcohol or with other illegal drugs since the absorption of the alcohol or illegal drugs can cause toxic effects and violent drug interactions that are unpredictable and potentially violent, debilitating or fatal. As with any active drug, physicians should carefully evaluate patients for a history of drug abuse and follow those patients closely, observing them for signs of misuse or abuse.

99 In response to the question, “What is the proper procedure in the event of a medication error to a patient?” Dr. Wong replied that, if a medication error is made, it must be admitted to immediately. Depending on the circumstances, the person who made the error should advise the doctor and the patient so that the appropriate care can be provided to the patient immediately or as soon as possible. The person who made the error must be honest and report it so that the patient can be treated immediately, as required.

100 Finally, Dr. Wong stated that, as part of his auditing responsibilities, he had made a control of the narcotic count at the institution on September 10, 2006 that covered a five-year period expiring September 7, 2006.

10. Angeline Slater, Ann Gregory, James Smith, Pierre Bell and Denise O’Hara

101 The employer called a number of colleague nurses of Ms. Baptiste who have worked with her for different periods at the institution. The essence of each witness’ testimony was that a very high level of trust was required for a nursing position in a penal institution, that they were aware of the allegations against Ms. Baptiste, that they did not trust her and that they did not want to work with her again. They also stated that, were she reinstated, they would either move on to another institution or retire from their positions.

102 Nurse Pierre Bell testified that he was a long standing steward for the union. He confirmed that Seroquel was a drug abused by inmates and that it was used as barter by inmates because of its buzz effect (like being drunk, according to the way inmates explained it to him).

103 Nurse Bell testified that Ms. Baptiste was also investigated in 2004-05 after inmates complained against her. She was removed from her nursing duties and performed administrative functions pending the investigation, and was eventually reinstated into her regular nursing duties at the institution.

104 Nurse Bell testified that, before the 2004-05 incident, the grievor was also subjected to a lengthy investigation that resulted from inmates alleging that she was involved in the deaths of certain inmates. That investigation became “a high visibility media coverage of CBC in British Columbia.” Nurse Baptiste, according to Nurse Bell, was transferred to another federal institution for her own safety and security during that investigation. She returned to her regular nursing duties when the investigation completed and she was, once again, found blameless.

105 According to Nurse Bell, that incident flamed the racial slurs from which she was already a victim from certain inmates.

106 Nurse Bell’s evidence was that, in July-August 2006, there was a chronic nurse shortage at the institution, as reflected in Exhibit U-59. That exhibit reflects the discussion paper on Nursing Health Issues examined by the institution’s management in July 2006.

107 Nurse Bell testified that, after that July 2006 discussion, management reduced the work hours per day from 16 to 12, effective August 8, 2006. That change to nurses’ working hours is described in detail in Exhibit U-46, which states that the factor contributing to the change was the significant decrease in the nursing staff at institution. The change affected the number of nurses who would end up working weekend shifts. In other words, instead of having two nurses on duty on weekends, each working 16 hours, only one nurse would work weekends on 12-hour shifts beginning August 8, 2006, plus emergencies.

108 The incident of August 20, 2006 was on Nurse Baptiste’s first weekend assignment working alone after the 12-hour shift schedule was implemented.

11. Jennifer Plate 

109 Nurse Plate has been employed as a nurse in the public service for 23 years. She was trained and graduated in England and moved to Canada in 1971. She worked as a nurse in the Vancouver area and arrived at the institution in 1985.  She has known and worked with Ms. Baptiste for the entirety of the grievor’s service at Matsqui. She knows the grievor as a colleague and is familiar with the basic allegations against her in this case. 

110 At the time of the events at issue, Nurse Plate reported to Ms.  Raketti, who was the acting chief of Health Care at the institution in the absence of Head Nurse Dean. In 2006, she was responsible among other things for the methadone Program. She insisted that all nurses be required to have valid licenses to practice nursing and be subjected to the rules and regulations of the CRNBC as well as of the CSC.

111 Ms. Plate briefly described the events of August 21, 2006. It was a Monday. She was at work early in the morning, and she prepared her methadone routine. Assisted by Nurse Mathieson, they did the morning NCDR pill count. Once satisfied that the count was correct and legible, they signed it at 07:00.

112 Ms. Baptiste had worked the weekend of August 19 and 20. Nobody else had access to the NCDR on that weekend. On August 21in the morning, the only nurses on shift were Nurses Plate, Mathieson, Raketti and Baptiste. When nurses Plate and Mathieson made the 07:00 count, they testified that the NCDR was a “mess.”

113 At approximately 13:00 on August 21, Nurse Plate heard a yell from Nurse Mathieson, who was agitated because she realized that the morning count had been changed but not by either of them. Both nurses recognized the grievor’s handwriting and initials.

114 At that moment Nurse Mathieson immediately advised Dr. Wong of the NCDR count change. He advised Nurse Mathieson to correct the change by following the appropriate procedure. Both Nurses Plate and Mathieson were upset and indicated that this incident had them question their trust in their colleague, Nurse Baptiste.

115 Nurse Plate testified that, when a medication mistake is made, it must be reported as soon as possible because the effect on the patient is unknown, and the patient must be advised, treated medically and attended to immediately. 

116 When asked by counsel for the employer “What is the level of trust Nurse Plate requires from a colleague nurse?”, Ms. Plate replied that a great level of trust is required. She stated that, as did other witnesses, she did not trust Ms. Baptiste that she would not feel comfortable working with her again and that she would retire were the grievor reinstated.

117 The employer’s counsel asked Nurse Plate to comment on Exhibits U-36 and U-37. She indicated that both exhibits were the required observation reports that must be filed to ensure the proper recording of events related to the NCDR. Nurse Plate indicated that, when she made and signed Exhibit U-36, she erred on the time of her observation. When she noticed the error, she corrected it. The correction is shown in Exhibit U-37. She signed and dated the corrected document on September 28, 2006.

118 Counsel for the employer asked Nurse Plate to comment on Exhibits E-15 and E-15A (the NCDR). After a careful examination of both exhibits, she testified that in her view, whoever made the changes to those two exhibits did not take responsibility for them.

119 Finally Nurse Plate was asked to examine Exhibit E-1 (the small brown envelope) and was asked if she could tell whose writing was on it above the signatures near the bottom. Nurse Plate’s answer without hesitation was that the writing was that of the grievor, which she had seen many times over the years that the grievor had been her nursing colleague.

120 Nurse Plate testified that a nurse has nothing to gain from making a wrong distribution of medication and agreed that sometimes nurses make errors. However, she stated that, anytime a change is made to the NCDR, it must be initialled by the person making the change. In conclusion, she stated that “[i]t is not the mistakes that are the critical issue but rather the accountability of changing somebody else’s numbers.”

12. Kevin Morgan

121 Mr. Morgan is a veteran CSC employee with more than 27 years’ service in different institutions in BC, including Regional Headquarters. In this case, Mr. Morgan was the chairperson of the two-person Disciplinary Investigation Board. His responsibility was to conduct a full, comprehensive and fair disciplinary investigation into the allegations against Ms. Baptiste. He issued his investigation report to the Warden in early February 2007.

13. Donna Raketti

122 Nurse Raketti graduated as a nurse in 1971 and worked as a nurse from 1976 in Montreal, from 1980 in Ontario and from 1982 in Newfoundland. She began working at the CSC in 1993, and in August 2006 was the Acting Chief of Health Care at the institution, replacing Nurse Dean in her absence. Nurse Raketti also was a union steward and she knows the grievor well, having been her supervisor. She carried out appraisals of the grievor in the late 1990s.

123 On Monday morning at approximately 08:30 to 08:45, on August 21, 2006, Nurse Raketti met inmate X who briefly explained to her that he had been given the wrong medication (Seroquel) the night before, that he had gotten up in the night to urinate, that he had slipped and fell in the urine on the cell floor and that he had hurt himself. He showed Nurse Raketti his bruise and then gave her a small brown envelope with two Seroquel pills inside, which she signed. Mr. Koch also signed the envelope.

124 Nurse Raketti then advised inmate X to present himself to the Health Care Services to be assessed. Inmate X followed her instructions and was seen by health care personnel. He was examined, and the doctor had him X-rayed. X-rays determined that there were no fractures, no broken ribs and no damage other than a bruise without any bleeding.

125 That same day, Nurse Raketti encountered Ms. Baptiste at work and told her what inmate X had related to her that morning about receiving the wrong medication, namely, receiving six Seroquel 25 mg tabs in a small brown envelope. According to Nurse Raketti, Ms. Baptiste’s reply was, “No, I gave him Zoloft 150 mg.” She asked the grievor whether it was possible that she could have made a mistake because she had worked alone all weekend and had been busy. Ms. Baptiste was adamant that she gave inmate X the prescribed medication, only one 150 mg dose of Zoloft. She also stated that she never gave anybody a brown envelope and that the last time she did so was at the last lockdown, in spring 2006.

126 On August 21, 2006, Nurse Raketti was advised that the NCDR count for the weekend had been modified. Immediately after being informed of the count modification, originally signed off at 07:00 on August 21 by both Nurses Mathieson and Plate, Nurse Raketti asked to make a photocopy of the NCDR count page (Exhibit E-15) which was done at 14:00 on August 21(Exhibit E-15A).

127 When she met with Ms. Baptiste on that day, Nurse Raketti went through the procedure and steps required in the event that a nurse made a medication error, as follows:

a) When a medication error is declared the patient must be examined as soon as possible.

b) The doctor of the institution (Matsqui) is advised immediately of the medication error.

c) The Institution Pharmacist’s office is advised immediately.

d) And once all those steps have been taken the nurse having declared the error must make her report called the Nursing Observation Report.

128 Nurse Baptiste acknowledged that she knew the procedure. However, she added that she had not made a medication error and that she had not altered the NCDR pill count on August 21, 2006. On that point, nurse Raketti mentioned that she explained to Nurse Baptiste that the pill count was a legal obligation; if the pill count is not correct, then nurses are not to leave the premises until the error is accounted for. Nurse Raketti testified that she did not change the pill count on August 21, 2006.

129 Nurse Raketti’s evidence is that, when she looked at the NCDR on August 22, 2006, Ms. Baptiste had placed her initials on all the changes shown in Exhibit E-15, other than the pill count at 07:00 on August 21, 2006.

130 In answer to the following question from the employer’s counsel: “What is the importance of promptness in reporting a medication error?”, Nurse Raketti stated that, depending on the medication ingested, promptness could make the difference between life and death.

131 Finally, counsel for employer asked Nurse Raketti the following: “What was the trust level [she] had in Nurse Baptiste?” Ms. Raketti replied that “[t]rust from a nursing professional is critical. Nursing is being part of a medical team that must function effectively and efficiently. Each member of that team needs to be accountable professionally. I cannot trust Gloria Baptiste’s accountability.” She added that, were Ms. Baptiste reinstated, she would probably move on by either deploying somewhere else.  Currently there is a high demand for nurses in the Fraser Valley community.

132 Nurse Raketti agreed that a sole nurse working a weekend has an extremely heavy workload with a 12-hour shift along with any unforeseen events and emergencies. Having worked 12-hour weekend shifts, she knows that the nursing staff makes errors. However, she added that a protocol for handling medication errors is in place and that all nurses, including Nurse Baptiste, are familiar with the required actions that must be taken as soon a medication error occurs.

133 She was aware that, in 2006, inmate X, in addition to other medical problems, including a serious drug addiction for which he tested positive, also had an ear infection. Nurses are aware that ear infections cause dizziness and balance problems that can cause falls when legs move unsteadily.

134 Nurse Raketti stated that she was aware of the racial slurs and unacceptable comments over the years that certain inmates inflicted on Nurse Baptiste. She is familiar with the negative attitude towards Nurse Baptiste because she was called to testify in February 2000 at a coroner’s inquest, and the CBC described her in its program The Fifth Estate as a suspect in the death of inmates. That process lasted for long months, and Nurse Baptiste was transferred out of the institution. At the end, she was found completely blameless. However, when she returned to her nursing duties at the institution, the negative stigma never disappeared. Nurse Raketti stated that she was aware that Nurse Baptiste was investigated again in 2004-05 due to inmate complaints. Again, she was exonerated and returned to her nursing duties at the institution after months of absence.

135 Finally, counsel for the employer asked nurse Raketti whether it was “common for a nurse to deny making a medication error.” Her answer was that it “was not common because normally, when a nurse makes a medication error, she or he wants to correct it quickly because the nurse is more concerned with the patient’s health than anything else.”

136 Nurse Raketti also related that she was aware that Head Nurse Dean had filed a complaint with the CRNBC asking that Nurse Baptiste’s license be revoked. The CRNBC denied that request.

137 Nurse Raketti also testified that she was aware that, over the years, other nurses at the institution have been faulted and spoken to for mistakes and errors that violated CSC rules and regulations and the NCDR, but to her knowledge, none were disciplined for those irregularities or violations. The employer conceded as much.

14. Dr. Alexander L. Levine

138 The employer called Dr. Levine to testify in response to the medical assessment of the grievor provided by Dr. William J. Koch, a expert psychologist witness, at the grievor’s request. After being sworn in and declared as an expert witness in psychiatry, Dr. Levine stated that his medical conclusion on Ms. Baptiste was that “she does not suffer any mental health illness or any personality disorder which could justify her work-related problems at the Matsqui penal institution.”

139  According to his testimony, Dr. Levine reached that conclusion based on the following:

a) the extensive interview of Nurse Baptiste and the tests performed;

b) all documents that both representatives provided him; including Dr. Koch’s expert opinion; and

c) all the psychiatric medical literature that he referred to in his medical opinion that was introduced and referenced in his evidence.

140 Dr. Levine’s psychiatric assessment of Ms. Baptiste is set out at length in his report of July 29, 2009, filed by the employer as Exhibit E-63(B). In essence, his opinion is that Ms. Baptiste does not have a personality disorder and that she “… suffers some maladaptive personality traits of narcissism and suspiciousness.” Dr. Levine emphasizes that Dr. Koch, in his expert opinion did not diagnose Ms. Baptiste with any personality disorder but commented only about underlying narcissism and suspiciousness as part of her narcissistic personality.

B. For the grievor

141 The union called 6 witnesses but the grievor did not testify. The grievor’s representative raised a medical defense to justify the grievor’s lack of testifying.

1. Eva Sabir

142 Nurse Sabir has been a registered nurse since 1974 and has worked in institutions in both the private and public sectors in BC. She has been with the CSC since 1996. She worked at the institution from 1996 to 2003. She worked there with Ms. Baptiste for all those years.

143 After being sworn in, Nurse Sabir declared that she was aware of the issue before this tribunal. She testified clearly, without any hesitation, and directly answered all questions. She worked with the grievor from 1996 to 2003. She testified about several incidents that involved the grievor or that she witnessed at the institution.

144 One incident Ms. Sabir referred to in the 1999-2001 period was the investigation into an inmate death at the institution. Some inmates accused Nurse Baptiste of the death of an inmate that was then investigated by a coroner. It was widely reported in both national and regional media by the CBC, CBC’s The Fifth Estate and others who publically identified Nurse Baptiste as a suspect in the investigation.

145 According to Ms. Sabir, the result was that many inmates did not like Nurse Baptiste. Ms. Baptiste was the target of a rash of racial slurs and overtones, which were negative and that was of a lasting nature because the public inquiry lasted several months. During that long inquiry, the institution’s management, for Nurse Baptiste’s personal security, transferred her to another CSC institution. She returned months later. The public inquiry found her blameless in the inmate’s death.

146 Ms. Sabir raised another incident of racial slurs and negative racial overtones involving not an inmate but the chief of Health Care Services at the institution, Nurse Sharon Greye who called Nurse Baptiste a “black bitch” in the presence of Ms. Sabir and others. The evidence submitted by the employer in Exhibit E-54 (decision of the Canadian Human Rights Tribunal (CHRT), dated November 6, 2001) reveals that that incident was not isolated but that it was one of at least two separate incidents. 

147 Nurse Sabir’s evidence was that Nurse Baptiste was not sufficiently supported by her colleagues and management and “that the appearance of toleration” caused racial slurs and racial overtones to escalate because they were “not toned down.” Ms. Sabir stated that, after the inmate death that prompted the coroner’s inquest, Nurse Baptiste was characterized by inmates and referred to in the media as “the angel of death.” The resulting lengthy inquiry was stressful for Ms. Sabir and her colleagues, including Ms. Baptiste. Nurse Sabir was also present on the evening on which the CBC filmed and reported the inmate’s death at the institution.

148 Nurse Sabir related another incident in which she distributed medication to inmates. An inmate told her when was serving him that “he was glad it was a white person serving him and not the black bitch who would be touching his medication.” Ms. Sabir commented “that there was a lot of hatred going on.”

149 Ms. Sabir indicated that Nurse Baptiste was not always easy to deal with in the colleague group of nurses because she sometimes “brought it upon herself” when dealing with her colleagues. According to Ms. Sabir, Nurse Baptiste became “recoiled” in dealing with her colleagues over time and eventually with inmates who were giving her a hard time.

150 In response to the question “Was Nurse Baptiste treated in the same manner as other nurses at Matsqui?” The answer was “No, she was held to a greater/higher standard than the other nurses, on accountability [emphasis added by the undersigned].”

151  In response to the question, “Did Gloria Baptiste easily admit her errors?” Ms. Sabir answered, “No.”

152 Ms. Sabir testified that, once when she was on duty and working in the presence of Nurse Bell, he did not attempt to dissuade an inmate hurling abusive language towards another nurse. Her testimony is that Nurse Bell remained silent and did not intervene with the abusive inmate. Her uncontradicted testimony was that she reported the incident to her immediate superior, Nurse Dean.

153 Finally, Ms. Sabir’s uncontradicted evidence was that after leaving the institution, she worked as a registered nurse in two other CSC institutions, including the Regional Treatment Centre (RTC) in Abbotsford, BC, and that both institutions had a next-to-zero tolerance level for racial slurs and foul language from inmates towards nurses and staff. She gave as an example that, at one of the two institutions, an inmate who had used racial slurs and foul language was transferred temporarily to a higher-security institution. In conclusion, her evidence was that the tolerance level for abuse by inmates towards nurses and staff was higher at the Matsqui institution than at the other two institutions where she worked.

2. Dr. Adil S. Virani

154 Dr. Adil S. Virani is a licensed pharmacist in BC with more than 16 years of extensive clinical expertise in pharmacy practice, evidence-based practices and psychopharmacology and in the treatment of various psychiatric disorders, including research into the medications used to treat different depressive disorders, psychotic disorders, pediatric psychiatric disorders and drug abuse. I declared him an expert witness. He expressed the following opinion about the effect of medication on inmate X.

155 Inmate X is a 40-year old male (weight - 210 lbs; height - 6’6) with several medical conditions. They include a back injury (herniation at L4-L5) in 1994, multiple fractures (left tibia, right knee cap, skull, collar bones on two occasions, right foot and right arm), depression, acne, folliculitis, substance abuse disorders and dental problems. He has a university education and was incarcerated many times for breaking-and-entering violations.

156 Inmate X has received several treatments for his medical conditions. They included surgery (titanium rods placed in his back) and multiple medications, including pain relievers, antihistamines, antidepressants and antibiotics.

157 For pain control, inmate X has used different anti-inflammatory medications such as non-steroidal anti-inflammatory drugs (NSAIDs) like keterolac (Toradol) diclofenac (Voltaren) and ibuprofen (Motrin, Advil) as well as acetaminophen (Tylenol and Tylenol 3). He used those medications for at least two years (some were used regularly, while others were used as-needed) before the August 20, 2006 incident.

158 On November 27, 2004, inmate X was prescribed 50 mg of Seroquel at bedtime (as needed) to help him sleep (he had complained of difficulty falling asleep and sleeping only 20 minutes per night on trazodone). At that time, he received only a couple of doses. It was discontinued on December 8, 2004.

159 Inmate X has a well-documented history of abusing multiple substances (sometimes daily). Substances he has abused include marijuana, several odious, intravenous heroin (2 mg/day), cocaine and morphine. He has experienced seizures due to drug withdrawal (the last in October 2003). In addition, his conditional release was revoked due to his use of heroin on February 15, 2006. It was confirmed by urinalysis on February 9 and 14, 2006 (which suggested the presence of morphine and cocaine). In March 2006, it was felt that the methadone program was not appropriate for him.

160 On June 21, 2005, inmate X was started on sentraline (Zoloft 50 mg) for depressive symptoms, persistent thoughts, feeling overwhelmed and obsessive traits. Therefore he was on Zoloft for over a year before the August 20, 2006 incident, with the exception of a note from March that year stating that he had stopped Zoloft a month before.

161 Inmate X has no known allergies. His documented history of adverse reactions to medication (based on documents provided to Dr. Virani) shows that he has complained of difficulty with trazodone (see Exhibit E-49). NSAID caused him stomach pain, and Seroquel made his “legs grumpy” (Exhibit E-50).

162 On August 21, 2006, inmate X complained about being erroneously given 6 Seroquel 25 mg tablets (150 mg) on August 20, 2006 instead of his 150 mg Zoloft capsules. Inmate X stated that at approximately 19:00 on August 20, he took 4 of the 6 Seroquel pills (100 mg) of the six (6) and that he decided not to take the remaining 2.

163 Furthermore, inmate X stated that after 19:00 on August 20, 2006, he passed out (cannot remember anything that happened) and that he learned from his cellmate that,  at one point during the night of August 20, he got up, began talking incoherently, began to urinate on the floor, slipped in his urine and fell, bruising the right side of his body. Inmate X’s medical file include photos taken of his right side, as well as an X-ray on August 22, 2006 (which subsequently showed no fracture or bony abnormalities).

164 Thus, as of August 20, 2006, it appears that inmate X was regularly taking the following 3 medications: Zoloft, 150 mg once daily at bedtime, Tylenol 3, 6 tablets daily, and Voltaren SR, 75 mg twice daily as needed. As Dr. Virani understands it, inmate X was given Voltaren in bulk (for self-administration); hence that medication would not usually have been signed off daily on the Medication Administration Record (MAR).

165 In his expert report (Exhibits U-82 and U-82(a), U-82(b) and U-82(c)), Dr. Virani answered  specific questions about whether Seroquel (100 mg) could cause the type of reactions described by inmate X. Dr. Virani stated that there cannot be a yes or no answer, because of the inherent variability in how people respond to different psychotropic medications. Some people can take large doses of a psychotropic medication with few effects, while others can be dramatically affected by relatively small doses. He stated that “one should consider how this person has metabolized medications that are broken down by similar pathways, how they have reacted to other medications and of course the significance of 100 mg of Seroquel in inmate X.”

166 Dr. Virani’s professional opinion was that, given the inmate’s reaction and relative doses of other medications he has tried (which could be considered normal to high doses), passing out, total loss of memory and loss of coordination (as well as bruising), are not what one might have expected or predicted from that dose of Seroquel, if in fact inmate X took it. In his opinion, things were a bit exaggerated, given all the details of this case and the inmate’s ability to handle other drugs and illicit substances. For his reaction to have occurred from Seroquel, one would also have expected an exaggerated response to other similar medications and to the 50 mg of Seroquel he was given for sleep on a couple of occasions in November 2004.

167 Dr. Virani added that this does not mean that it is impossible that that reaction occurred, just highly unlikely and not like the average person’s reaction (even if it were given in combination with other medications this patient was taking) given all the facts of this case. Dr. Virani stated that he has not seen that reaction in more than 16 years of practice, nor has he heard of that reaction from his colleagues, who he consulted.

168 By the conclusion of Dr. Virani’s testimony, the employer had already closed its case. However, Dr. Linda Healy, a psychiatrist for the employer, was present to hear Dr. Virani’s testimony and to provide input to the employer’s counsel.

169 After discussions requested by the two counsel and on their consent, I allowed Dr. Healy to testify as an expert witness on the issue of inmate X’s reaction on August 20, 2006 and specifically on the question of the inmate’s statement of “passing out, total loss of memory and loss of coordination” after ingesting 100 mg of Seroquel.

170 Originally, when Dr. Healy read Dr. Virani’s medical opinion (Exhibit U-82 and appendices), she reached the same conclusion as Dr. Virani that such a reaction by inmate X was “possible but highly unlikely.” However, when she reviewed Exhibit E-49 (Doctor’s Order and Progress Notes of inmate X from November 24, 2004 to December 1, 2004), Dr. Healy’s opinion was modified because she noted the effects caused by the Seroquel that inmate X ingested in 2004, nausea, dizziness and vomiting, were possibly the same as the side effects noted in the August 20, 2006 incident, as related by inmate X. Therefore Dr. Healy’s testimony changed from that it was “possible but highly unlikely” to “possible but more likely” that inmate X reacted to Seroquel on the night of August 20, 2006.

171 After Dr. Healy’s testimony, I allowed Dr. Virani to testify on that specific point in reply. He maintained his professional opinion that the effects as described by inmate X were “possible but highly unlikely.”

3. Dr. Jason Wong

172 In earlier testimony, when called by the employer, Dr. Wong testified on January 5, 2009 that he had performed an audit following the August 20, 2006 incident involving Ms. Baptiste and inmate X.

173 On October 26, 2009, Dr. Wong was called as a witness by the grievor’s representative for the purpose of filing in evidence the audit that he prepared on September 7, 2006 and sent to Debra Gaskell, the most senior health care official at the CSC’s Pacific Regional Headquarters and who reports to Ottawa (Exhibit U-83). The audit covered different periods of 2000, 2001, 2002, 2003, 2004 and 2006 of the NCDR. Four of his five findings were about the allegations that were part of the disciplinary investigation in this case. Dr. Wong stated that, in the period that he audited from 2000 to September 7, 2006, he examined only the incidents that involved the grievor, who had committed 78 errors.

174 After the conclusion of Dr. Wong’s testimony on October 26, 2009, the parties presented in evidence, by mutual consent, a legal action in the Supreme Court of British Columbia by inmate X, plaintiff, against Gloria Baptiste, the CSC, the Matsqui Institution, Her Majesty The Queen in Right of Canada, as represented by the Attorney General of Canada, John Doe #1, John Doe #2, Jane Doe #1 and Jane Doe #2, as defendants (Exhibit E-55).

4. Linda Dean

175 Ms. Dean was the chief of Health Care Services at the institution from January 1998 to November 2001 and from 2004 to the end of 2006 and was Ms. Baptiste’s supervisor for a number of years.

176 In the late 1990s, following the deaths of terminally ill inmates F and P and allegations by inmate B that Nurse Baptiste was seen in the vicinity of the dead inmates’ cells on the days of their deaths, a coroner’s inquiry was launched to investigate the inmate deaths. During the lengthy inquiry, CBCand The Fifth Estate identified Nurse Baptiste as a suspect. In the end, she was declared blameless. However, Ms. Dean explained that Nurse Baptiste was relocated for her own safety and security to another CSC institution, as described in Exhibit U-57, effective February 8, 1999. She returned to her regular nursing duties at the institution in September 2000.

177 Ms. Dean testified that Nurse Baptiste was investigated again, beginning in October 2004 for incidents in the Segregation Unit as the result of inmate complaints in August 2004. During the investigation, Nurse Baptiste was assigned to administrative duties with no inmate contact until the investigation was completed. She returned to full nursing duties at the institution in June 2005.

178 After the October 2004 Segregation Unit investigation, Ms. Dean filed an official complaint with the CRNBC about the nursing capabilities of Ms. Baptiste (Exhibit U-85). The CRNBC responded on May 23, 2006, writing that the “CRNBC is satisfied that the registrant [Gloria Baptiste] is aware of her professional responsibilities and that no further action by CRNBC is required” (Exhibit E-61).

179 In October 2006, after receiving the CRNBC’s response and because of the other incident involving Nurse Baptiste in August 2006 that was at the investigation stage, Ms. Dean again submitted another request to the CRNBC, questioning the ability of Ms. Baptiste to practice nursing in a knowledgeable, safe and competent manner. In her second request to the CRNBC, dated October 17, 2006, Ms. Dean, as Chief of Health Care Services at the institution, requested in her closing paragraph “that the CRNBC suspend Ms. Baptiste’s license until CRNBC has reviewed and reaffirmed her competence to provide nursing services to the public. If Ms. Baptiste is allowed to practice while under review the safety of the public will continue to be jeopardized” (Exhibit U-84).

180 Ms. Dean’s new request to the CRNBC was accompanied by a list of documents (identified as Exhibits U-84 (a), (b), (c), (d), (e) and (f)), which are the supporting documents that she provided to the CRNBC to justify Ms. Baptiste’s alleged incompetence. They include Ms. Dean’s letter to Ms. Baptiste dated January 7, 2006, performance evaluations from several years, and an audit report signed by Dr. Wong and addressed to Ms. Gaskell, Pacific Regional Headquarter, dated September 10, 2006. At the time of the hearing, her request was still outstanding.

181 Ms. Dean acknowledged that she questioned Nurse Baptiste’s mental health in a letter to Beth Tyler, Human Resources, Regional Headquarter of the CSC (Exhibit U-86). Finally, Ms. Dean testified that she never disciplined the grievor.

5. Pierre Bell

182 Nurse Bell testified earlier in the hearing as an employer witness. After that, Nurse Sabir testified that he was present on a particular round of duty on which an inmate was heard using abusive language and making derogatory slurs towards a nurse in both their presence and that Mr. Bell remained silent and failed to intervene and stop or address the inmate who was using foul language towards the nurse.

183 Nurse Bell did not deny Ms. Sabir’s testimony and added that it was completely unacceptable for inmates to make derogatory remarks and racial slurs towards nurses and that it should not be tolerated. He mentioned that, in the past, he had been subjected to racial slurs from inmates, in his case related to his French background. He was questioned about his knowledge of Ms. Greye’s racial slurs towards Nurse Baptiste. Nurse Bell indicated that he was present and that he heard Ms. Greye call Nurse Baptiste a “black bitch.” He indicated that he felt that the racial remark was made “out of frustration.” However, his testimony was that “that is not an excuse” and that “those derogatory and racial slurs are unacceptable.”

6. Dr. William J. Koch

184 After having been declared an expert psychologist witness with more than 23 years of experience before different court jurisdictions in matters similar to this case, Dr. Koch’s expert opinion was prefaced by:

… [his] limited confidence of [his] opinions because of the marked disparity between Ms. Baptiste’s account of her history and that which appears in her employment record and the disciplinary records, and her substantial defensiveness in interview and psychological testing.

185 Dr. Koch’s testimony was that Ms. Baptiste does not suffer from any acute mental health conditions. However, he believes that she suffers from some maladaptive personality traits of narcissism and suspiciousness that may interfere with her adjustment to some work environments. Narcissism, as defined by Dr. Koch, in the mental health context, refers to a person’s tendency to excessively deny personal faults and exhibit insufficient empathy or consideration of other people’s points of view. Suspiciousness, in the mental health context, refers to how a person interprets a social event (for example a job promotion, because he or she is a personal friend of a supervisor versus interpreting such events as receiving the promotion based on performance and having done well in the interview).

186 Dr. Koch’s detailed report was filed as Exhibit U-90(B).

187 Finally, it should be noted that the grievor did not testify.

III. Summary of the Arguments

188 In addition to their oral submissions, counsel for the employer and the grievor’s representative both filed extensive and thorough written submissions. I summarized their arguments in this decision, but the parties may rest assured that I have thoroughly reviewed their submissions in their entirety in my disposition of these grievances.

A. For the employer

189 Counsel for the employer stated that the termination is simple. Either, the employer proved its allegations or it did not. If it did, given the lies and lack of remorse from the grievor, the bond of trust cannot be rebuilt, and the termination must be upheld.

190 Counsel for the employer stated further that there are two stories; either the grievor is not telling the truth, or a host of employer witnesses have conspired, for no apparent reason, to have the grievor terminated and to mislead this tribunal.

191 Counsel for the employer argued as follows:

1) The employer has the burden of proof to establish the allegations outlined in the letter of termination (Exhibit E-9).

2) The grievor has the burden of proof for both her medical defense and her allegation of condonation. The employer will respond only in reply argument since the initial burden rests with the grievor.

3) The standard of proof required for both the employer and the grievor was developed in Faryna v. Chorny, [1952] 2 D.L.R. 354, recently reaffirmed in F.H. v. McDougall, 2008 SCC 53; that the standard of proof at common law in Canada is a balance of probabilities.

4) The employer has examined each allegation investigated by its disciplinary investigation team. Initially, four allegations were made against the grievor, but as the investigation proceeded, six additional allegations were discovered by the investigation team. That meant that 10 allegations were listed in the employer’s letter of termination dated April 10, 2007 and signed by the warden.

192 Counsel for the employer suggested that, in my review of the evidence, I should consider the following:

(a) since the grievor did not testify, I should as a consequence draw a negative inference from that, and

(b) every incident, where the employer alleged that handwriting is that of the grievor, is confirmed by the handwriting expert that presented evidence before me or through the testimony of the grievor’s colleagues who demonstrated extensive familiarity and knowledge of her handwriting. As a result the handwriting evidence is submitted as uncontested.

193 Counsel for the employer argued that the grievor administered incorrect medication to inmate X. His cellmate’s testimony established his credibility and corroborated that inmate X was injured when he fell after ingesting the incorrect medication. Counsel for the employer argued further that inmate X’s testimony was also corroborated by the envelope, which contained the two remaining pills. The envelope had inmate X’s name and identification on it, including the medication and dosage in handwriting. The envelope was signed by Ms. Raketti and Mr. Koch, acknowledging that they received it from inmate X and that it contained the two remaining pills. The grievor denied giving inmate X the envelope and denied that it was her writing on it. Within hours of the incident, when being questioned by Ms. Raketti about the envelope, the grievor again denied that she had given it to inmate X. Mr. Thorpe testified that the writing on the envelope was the grievor’s. Only after the testimony of the employer’s expert and the grievor’s three colleagues confirming that it was her handwriting did the grievor’s representative, during his opening statement, admit for the first time that it was her handwriting.

194 On that basis, counsel for the employer stated that the grievor’s credibility was shattered and that she lied to cover up her mistake. Counsel for the employer stated that the grievor lied when she was initially confronted and again throughout the entire investigation process.

195 Furthermore, on the envelope was written “Zoloft 150 mg dose“(6 tablets of 25 mg each). Dr. Wong’s uncontradicted testimony is that Zoloft does not come in a tablet. It comes only in a capsule. Dr. Wong testified that no 25 mg Zoloft was available in the institution. Ms. Mathieson and Ms. Plate testified that a 25 mg dosage of Zoloft was never at the institution.

196 Counsel for the employer argued that the bruises sustained by inmate X when he fell after ingesting the wrong medication were serious enough for the institution’s doctor to have him X-rayed.

197 Counsel for the employer commented on Dr. Virani’s testimony and urged me to conclude that, on a balance of probabilities, the administration of the incorrect medication caused inmate X’s injury.

198 Counsel for the employer also argued that one factor that must be considered when weighing all the evidence is that the grievor chose not to testify. As noted as follows inBrown and Beatty, Canadian Labour Arbitration (4th edition):

…

Arbitrators generally have adopted the same view as the civil courts with regard to the conclusions to be drawn from the failure of a person to be called as a witness who could have been called and who could have given evidence of matters within his knowledge. Thus, where a party can, by his own testimony, throw light on a matter and fails to do so, an arbitrator is entitled to infer that such evidence would not have supported his position. As well, failure to call a witness who is available to be called, where the evidence is material, can lead to the same inference being drawn and the uncontradicted evidence by the other party accepted. Moreover, where a witness testimony is only rebutted by hearsay evidence when it could have been directly met, the arbitrator may accept less than satisfactory direct evidence.

[Emphasis added by counsel for the employer]

That principle was adopted in Ayangma v. Treasury Board of Canada (Department of Health), 2006 PSLRB 64.

199 In his reply argument, counsel for the employer stated that the employer’s position is “that adjudicators should be cautious in creating exceptions to the rule on failure to testify”, since the grievor has the burden on the issue of justification for failure to testify, as part of her medical defense. For a grievor to establish that he or she was incompetent to testify, clear medical evidence that the grievor was incapacitated is required. Even accepting what Dr. Koch said, the evidence does not meet that high threshold. Dr. Koch did not say the grievor was “incompetent to testify” (as that phrase is used in Vancouver (City) v. Canadian Union of Public Employees, local 1004, [2002] B.C.C.A.A.A. No. 81 (QL), cited by the grievor). Dr. Koch testified that she would be defensive and evasive. Many witnesses are defensive and evasive, counsel for the employer pointed out, which does not mean they are “incompetent to testify.” Furthermore, he submitted that Dr. Levine’s testimony should be preferred and that the grievor’s attempted reliance on a medical excuse for not testifying should not be accepted.

200 As a final note on this issue, counsel for the employer pointed out that the grievor testified before the CHRT, which issued a decision in Baptiste v. Correctional Service Canada, [2001] C.H.R.D. No. 35 (QL) (Exhibit E-54).

201 Counsel for the employer submitted that, based on those facts, the employer has established Allegation 1. Counsel for the employer submitted that that establishment is compounded by the fact that, when confronted, the grievor lied and continued to lie about it throughout the disciplinary investigation.

202 Counsel for the employer then reviewed the evidence in detail and urged me to conclude that the allegations against Ms. Baptiste of administering incorrect medication and of then altering the NCDR without following standard procedures and to cover up the error were proven on a balance of probabilities.

203 Counsel for the employer submitted that the grievor had the burden of establishing a medical defense (Canadian Labour Arbitration, Gorsky et al., chapter 9.4(e)), and Kelly v. Treasury Board (Correctional Service Canada), 2002 PSSRB 74, at para 99) and that she failed (Canada Safeway Ltd. and UFCW (Brandse) (2000) 94 LAC (4th) 86).

204 Counsel for the employer commented on the testimony of Ms. Sabir stating that her testimony was disturbing. However, he submitted that her suggestion that staff members encouraged and condoned inmates making racially inappropriate comments towards the grievor was completely lacking in credibility. Her inability to provide names on specifics (other than Nurse Pierre Bell) calls into question the authenticity of her statements.

205 Counsel for the employer then referred to the CHRT decision mentioned earlier and quoted the following:

Eva Sabir did testify that she heard Jenny Plate, amongst others, using racial epithets in the workplace, but provided no details or specific examples. Jenny Plate, who impressed me as a credible witness, denies ever using such language, and no one else confirms having heard it. I have some concerns about the credibility of Ms. Sabir, who struck me as well-meaning, but somewhat prone to overstatement… Ms. Sabir's evident desire to support Ms. Baptiste also appears to have affected her objectivity…

[Emphasis added by counsel for the employer]

206 Mr. Bell’s evidence was that the one incident described by Ms. Sabir never occurred and that, other than the one example of Ms. Grey in 1996, no such inappropriate comments were made by staff members. This was also confirmed by Ms. Dean.

207 Counsel for the employer urged me to reject the argument that the employer had condoned Ms. Baptiste’s conduct and that she had been singled out for discipline. First, this issue was raised for the first time at adjudication and is not credible. Second, the grievor failed to show that “… the material circumstances of the grievor’s case substantially conform to the circumstances of those who were treated more leniently” (Brown and Beatty, Canadian Labour Arbitration, at page 7-230). According to counsel for the employer, there is no evidence that other employees engaged in the same kind of misconduct as Ms. Baptiste, as follows:

(a) The medication error with respect to inmate X and the failure to immediately acknowledge when confronted and when medical intervention was still an issue,

(b) Changing the pill count of other nurses on the narcotics drug log and denying it when confronted, and

(c) Making changes to the drug log in order to cover up mistakes, as noted by Diane Thiessen “cooking the books.”

208 Counsel for the employer further submitted that this case is not appropriate for pay in lieu of reinstatement and submitted that the employer had shown just cause for the termination. He submitted that the bond of trust between the employer and the grievor had been irreparably broken and that the bond of trust cannot be built on a foundation of lies. The jurisprudence on this point is clear. In Francis v. Treasury Board (Solicitor General – Correctional Service Canada), PSSRB File No. 166-02-24111 (19931007), the adjudicator noted as follows:

…

I also do not subscribe to the grievor's silence throughout the entire investigation and throughout the grievance process whereby he can now bring fresh explanations before me at the hearing.  I agree with adjudicator Tarte in the Yvan Bell et al. (supra) where he wrote:

In a case like the present one, an employee who receives a disciplinary measure must provide the employer, in due course, with all the explanations he or she wishes to present in order to justify or mitigate his or her actions.

…

209 In Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43, the adjudicator wrote the following:

…

 [103] The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of the discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor has misled his employer, failed to cooperate with the legitimate investigation of allegations of conflict of interest, and refuses to admit any responsibility in the face of evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible.

…

210 In Royal Columbian Hospital v. Hospital Employees’ Union, [2001] B.C.C.A.A.A. No. 39 (QL), the arbitrator wrote at paragraph 119 as follows:

…

A critical issue is assessing whether the employment relationship has been irreparably severed is whether the grievor has truly recognized and acknowledged her wrongdoing such that it can be concluded she would not continue to engage in such misconduct in the future if she were reinstated …

…

211 In Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, the adjudicator noted that last-minute admissions of responsibility made for the first time at adjudication are made too late in the process. The grievor’s admission through her counsel that it is her handwriting on the envelope is merely contrition of convenience. As noted in Brazeau at paragraph 184, “[w]ith respect to the grievor’s admission of responsibility regarding the conflict of interest issue, I find that it came too late in the process to be considered as a mitigating factor”, and at paragraph 190, “[t]he grievor’s lack of forthrightness during the respondent’s investigation constitutes, from my perspective, a determinant factor with regard to the rehabilitation of the grievor and the necessary bond of trust.”

212 Counsel for the employer stated that the grievor cannot have it both ways. One cannot fail to participate in a disciplinary process and attempt to mislead the employer and then ask for reinstatement if the employer proves its allegations.

213 Counsel for the employer stated that given the seriousness of the grievor’s actions, reinstatement would have been possible only had she come clean immediately when first confronted, which she did not. Furthermore, counsel for the employer stated that the grievor continuing to lie throughout the investigative process is a serious aggravating factor that fundamentally calls into question her trustworthiness.

214 Counsel for the employer underlined the testimony of several nurses who worked with the grievor and who stated in no uncertain terms, under oath, their lack of trust for Ms. Baptiste and their desire not to work with her again.

215 Counsel for the employer stressed the key points of the testimony of the warden, who was the most senior executive at the institution and who made the decision to suspend the grievor and terminate her employment. He stressed the seriousness of the incidents, her complete lack of remorse and her failure to account for her actions in the immediate aftermath and through the investigation process.

216  In conclusion, counsel for the employer submitted that the grievances should be dismissed. He argued that, in the alternative, were the termination grievance granted, and as noted in the employer’s opening statement, the employer requests that the adjudicator retain jurisdiction over the issue of remedy (mitigation) in the event that the parties are unable to agree.  

B. For the grievor

217 The grievor’s representative first commented on the fact that Ms. Baptiste did not testify. The reason she did not testify is the reliance on the medical expertise presented by Dr. Koch. The grievor’s representative submitted one case to counter the employer’s argument of adverse inference arising from the fact that the grievor did not testify. In support of his argument the grievor’s representative cited the case of Vancouver (City) at para 57, which reads as follows:

…

57 Vice Chair Kearney of the Labour Relations Board recently addressed this issue in RE Steele. She stated, at para 22:

The general rule on adverse inference is that where a party fails to adduce evidence, either through witnesses or by documents, which it would naturally be expected to bring before the trier-of-fact, an unfavarouble inference may be drawn against that party. The unfavourable or “adverse” inference which may be drawn from the omission is that the evidence, if called, would have been injurious to, or at least not supportive of, that party’s case. The inference does not detrimentally         affect the tenor of the party’s entire case, but rather only the proof of the specific facts which the missing         evidence, if called, could have supported. However,    it is always open to a party that has not produced evidence to explain the omission (e.g., the witness in question is incompetent to testify). Where the explanation is satisfactory, no adverse inference will be drawn.

…

218 The grievor’s representative submitted that Dr. Koch’s explanation is satisfactory and that no adverse inference should be drawn because the grievor did not testify.

219 The grievor’s representative argued that the investigation was flawed. The grievor was not treated fairly during the investigation process. She was initially placed on administrative leave with pay on August 23, 2006, and then on a suspension without pay on September 5, 2006. The employer received the investigation team’s report in February 2007 and then terminated her employment on April 10, 2007. The disciplinary investigation process lasted approximately eight months.

220 The Treasury Board’s guidelines for discipline set out that investigations must be conducted in a fair and objective manner and as close as possible to the relevant incident. In this case, it was not. The result was that potential witnesses to the August 20, 2006 medication incident were not interviewed, which was unfairly prejudicial to the grievor’s case. In addition, inmate X’s cellmate, who was a witness to what transpired when the medication incident occurred, was not interviewed by the investigators. According to that cellmate, the first time he was questioned about the medication incident was when he was asked to testify at the hearing about a year later. The cellmate eventually testified at the hearing. Inmate X alleged that he filed a complaint about the medication incident on the next day, but it was never found.

221 The Treasury Board’s guidelines for disciplinary investigations provide that an investigation must be conducted fairly and objectively. In this case, the investigator provided information to the employer that then formed the basis of the six additional allegations against the grievor. The grievor submitted that those additional allegations seriously compromised the disciplinary investigation. The grievor’s representative submitted that the person making a decision should be unbiased and in good faith and cannot be one of the parties in the case. However, in this case, that is what happened. In addition, the grievor, on advice from her union representative, advised the employer that she would not meet with the members of the board of investigation to respond to their additional allegations. The employer’s interpretation was that the grievor and her representative were delaying the investigation.

222 Inmate X was to be released from prison on August 23, 2006, three days after the medication incident. On the day of the medication incident, security officers in charge of the TDU (the unit where inmate X and his cellmate resided) made the following entry in their logbook at 07:30 (Exhibit U-27, pages 20 and 21):

Servers released. Note * There appears to be some conspiracy going on between the servers with the possible exception of P – H – D – watch closely when off range and do not allow inmate X to go down to the kitchen unsupervised as he is trying to talk to “GP” and kitchen stewards.

223 The evidence in this case is that five servers, including inmate X and his cellmate, were conspiring. The grievor’s representative submitted that the employer never interviewed the security officer who wrote that comment.

224 The grievor’s representative submitted that the employer bears the burden of proof and referred to Samra v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File No. 166-02-26543 (19960911), in which the adjudicator stated the following: “… that in cases of serious alleged misconduct, particularly where a person’s continued employment and reputation is at stake, the employer must demonstrate by clear, convincing and cogent evidence that the allegations have occurred.”

225 The grievor’s representative also submitted the award in Brewers Retail Inc. v. United Food and Commercial Workers International Union, Local 12R24, (2008) 168 L.A.C. (4th) 85. The grievor was a retail cashier employed by the company for 26 years. His employment was terminated on July 11, 2005, for a breach of trust for inappropriately processing six transactions, on May 20, June 2 and June 14, 2005. The arbitration board dealt with the burden of proof in paragraph 27, which reads in part as follows:

27. Having regard to the evidence and the argument, I determine that the onus is on the company to demonstrate by clear cogent and convincing evidence that the grievor was in breach of trust. The Company is not required to prove its case beyond a reasonable doubt. The standard to be applied in assessing the conduct in this matter is that of the balance of probabilities. However, the evidence must be commensurate with the gravity of the conduct alleged…

226 The grievor’s representative submitted that the issue before me is termination, the most serious employment consequence. Moreover, one allegation is that she deliberately falsified patient records, a charge going to the heart of the nursing function. The potential for injury to someone’s personal and professional reputation in such circumstances is immense. The grievor’s representative respectfully submitted that I am bound by law to consider the issue of cause on an evidentiary standard of “clear, cogent and convincing evidence.”

227 The grievor’s representative submitted that the main issue to be determined in this case is the grievor’s intent. There are many factual questions, but in the end, if the employer succeeds in proving a deliberate falsification of the narcotic log (the NCDR), then without a question there was cause for discipline.

228 The grievor’s representative commented on each allegation. For the allegation about inmate X, he submitted that it should be considered in the context that inmate X and his cellmate were conspiring and that inmate X was to be released from the institution in three days. He submitted that when inmate X asked the grievor on August 20 for additional Zoloft, he already had enough to last 12 days, from August 11 to 22, 2006. According to his file, he received a total of 36 capsules on August 10 and 13, 2006.

229 Initially, on August 20, 2006, the grievor gave inmate X a brown envelope containing six pills of Seroquel (25 mg). Immediately after that, and after inmate X’s fall that night, the grievor denied giving him the envelope and the wrong medication. In argument, the grievor’s representative submitted that, although she denied that the handwriting on the brown envelope (Exhibit E-1) was hers, she later, through her representative, admitted that it was hers.

230 In argument, the grievor’s representative submitted that her earlier denial is that her handwriting on the brown envelope should be examined in the context of the medical condition identified by Dr. Koch in Exhibit U-90(B). The grievor’s representative submitted that, in cross-examination, inmate X admitted that he knew that he received Seroquel instead of Zoloft from the grievor on August 20, 2006, because he had previously been prescribed Seroquel.

231 With respect to the administration of incorrect medication to inmate S and the associated alteration of the NCDR, the grievor’s representative noted that inmate S never complained about receiving incorrect medication and that despite the fact that inmate S was in the custody of the institution, he was never interviewed.

232 According to the grievor’s representative, it is clear from the Doctor’s Order and Progress Notes (Exhibit E-13) that inmate S was prescribed 40 mg of Ritalin (slow release) and 20 mg (regular) on August 18, 2006. It is also clear from the MAR (Exhibit E-17) that another nurse made a transcription error and that the MAR erroneously indicated that inmate S was to receive 60 mg of Ritalin (slow release) starting on August 19, 2006. Inmate S’s MAR shows that the grievor gave him 60 mg of Ritalin (slow release) as per the prescription.

233 The evidence shows that the grievor discovered the error by reviewing the Doctor’s Order and Progress Notes. The grievor wrote the correct prescription by hand in inmate S’s MAR.

234 The NCDR shows that an entry about inmate S at 09:30 on August 19, 2006 was changed and that the new entry under the dose column is not legible (other than “40 mg”). The grievor denies making that change. Her representative indicated that it should be noted that there was no reason for her to change the entry as she had not made any error. The transcription error was made by another nurse. In addition, inmate S’s MAR shows that, as a result of the handwritten prescription of 40 mg of Ritalin (slow release) and 20 mg (regular), he should have received those doses as of the date on which the correct entry was made. The MAR shows that inmate S received 40 mg of Ritalin (slow release) and 20 mg (regular) on August 20 and 21, 2006.

235 The NCDR shows that entries for inmate S were changed both on the dose column and under the “methyl phenidate 20 mg SR” column. The grievor denied making the changes. The grievor’s representative emphasized that the grievor had nothing to gain by cooking the books as she did not make the original transcription error on August 19, 2006.

236 With respect to the pill count on August 21, 2006, a review of Exhibit E-15 shows that it was changed for the morning of August 21, 2006. The original entry by Ms. Mathieson and Ms. Plate was made at 07:00, and the change was discovered by Ms. Mathieson around 13:00. She testified that sometime later, the grievor was writing in the NCDR. Ms. Mathieson asked the grievor whether there was a problem. The grievor replied in the negative and added that an inmate had messed her up on the weekend. After the grievor left the medication room, Ms. Mathieson saw the narcotic log and noticed that the morning count had been changed. The NCDR shows that the grievor administered a narcotic to inmate H at 13:00. She was required to make an entry for that drug around the time that Mrs. Mathieson saw her with the NCDR.

237 The grievor denied changing the pill count entry made by Ms. Mathieson and Ms. Plate. Although Ms. Plate, Ms. Raketti and Ms. Mathieson testified that the grievor made the change because they recognized her handwriting, they also agreed that they are not handwriting experts.

238 The grievor’s representative submitted that, despite the change made to the pill count entry, there was no serious issue with the count, and it was not deemed incorrect. Otherwise, the employer would have required all staff to stay on the premises until the count was rectified (Exhibit E-26, section 9). No evidence was submitted that any staff remained on the premises or were recalled until the count was rectified. Ms. Raketti testified that this issue grew much bigger than what it was because more people got involved. Ms. Raketti said that she simply wanted to speak with the grievor when she got back to work on August 24, 2006.

239 In conclusion, the grievor reiterated that she did not change the pill count entry made by Ms. Mathieson and Ms. Plate.

240 With respect to the allegations about inmates J and Y, the grievor’s representative stated that neither inmate J nor inmate Y filed a complaint to suggest that they were given incorrect medications; neither was even interviewed during the disciplinary investigation. Those allegations were made by a member of the Board of Investigation. Finally, the grievor denied in both cases administering incorrect medication on August 19 and 20, 2006 and denied altering the NCDR.

241 On the allegation of not complying with standard procedure when she changed the NCDR, the grievor’s representative submitted that the grievor agreed that there were many nurses at the institution who did not follow standard procedure. In addition, the grievor agreed that, many times, she did not follow standard procedure. However, the grievor does not agree that she did not follow standard procedure when she changed the NCDR between August 16 and 21, 2006.

242 Furthermore, the grievor does not agree with the employer’s position that she failed to abide by the policies of the CRNBC. The grievor stated that the CRNBC would decide whether she violated any of its policies and that it has its own process for making that determination.

243 On that issue, the grievor’s representative stated that the employer is aware that one of its managers, Ms. Dean, filed a complaint with the CRNBC against the grievor and that it is dealing with that complaint.

244 The grievor’s representative referred to section 59 of the CDSA which is quoted at paragraph 95 of this decision.

245 The grievor’s representative stated that the grievor agrees that the NCDR is a legal document, which is required to keep count of narcotics. The grievor denied violating the CDSA by any of her actions and that in any event, she has not been charged with any violation of the CDSA.

246 Finally, the grievor’s representative stated that based on the evidence the employer has not met its onus of proving its allegations on the standard of clear, cogent and convincing evidence. Nothing in the grievor’s conduct justified discipline. Furthermore, the grievor has an employment record free of any disciplinary infractions. However, if I conclude that she did commit an infraction worthy of discipline, she should have the right to progressive discipline. The grievor’s representative stated that all the evidence should be considered in the light of Dr. Koch’s expertise.

247 The grievor’s representative submitted the following authorities in support of his arguments. On the issue of equal treatment for equal cases, he submitted Turner v. Treasury Board (Canada Border Services Agency), 2006 PSLRB 58; International Association of Machinists, Lodge 890 v. S.K.D. Manufacturing Ltd. (1969) 20 L.A.C. 231; and Green v. Treasury Board (Transport Canada), PSSRB File No. 166-02-26720 (19980406). On the issue of medication errors, the following jurisprudence was submitted: The Pas Health Complex v. The Manitoba Nurses’ Union, [1996] M.G.A.D. No. 58 (QL); Etobicoke General Hospital v. Ontario Nurses’ Association, (1977) 15 L.A.C. (2d) 172; and Langley Memorial Hospital v. British Columbia Nurses’ Union, [2005] B.C.C.A.A.A. No. 116 (QL). On the issue of serious misconduct, the following jurisprudence was submitted: Chénier v. Treasury Board (Solicitor General Canada – Correctional Service), 2002 PSSRB 40; Algoma Steel Inc. v. United Steelworkers of America, Local 2724, (2006) 154 L.A.C. (4th) 243; and Brazeau v. Treasury Board (Department of Public Works and Government Services), 2008 PSLRB 62.

IV. Reasons

248 For the reasons that follow, I have decided that the indefinite suspension grievance is partially allowed and that the termination grievance is dismissed. As indicated earlier, I will deal first with the termination grievance.

A.  Termination (PSLRB File No. 566-02-1243)

249 The grounds invoked by the employer as the basis to terminate the employment of Ms. Baptiste are set out in a letter dated April 10, 2007 (Exhibit E-9), which I quote in its entirety as follows:

April 10, 2007

Gloria Baptiste

…

…

Dear Ms. Baptiste:

Re: Disciplinary Investigation

Further to my letters to you dated September 5, 2006 and October 13, 2006 where I convened a disciplinary investigation into the allegations of administrating incorrect medication, altering the Narcotic Controlled Drug Record and not following standard procedures when administrating changes to the Narcotic Controlled Drug Record, I have now had the opportunity to thoroughly review the content of the investigation report into your conduct. The report was shared with you; you were invited to review the report and to submit any pertinent representation before I considered any action relative to the findings.

In addition to the report, you were given all the information used during the investigation including the recordings of the various interviews. As you declined each invitation to submit representation, written submissions as well as the invitation to participate in a disciplinary hearing, I have made my decision based on the information available to me.

Following my review of the investigation, I have concluded that you incorrectly administered medication and medication dosage to inmates which resulted in an injury to an inmate. Protocol for reporting a medication error is identified in both CSC and the College of Registered Nurses of B.C. policy documents.  While you confirmed to the investigators that you were aware of the procedure for reporting medication errors, you did not do so, thus placing Matsqui Institution and Correctional Service of Canada in a position of legal liability. In addition, I find that you have altered medication records in order to cover up your actions.

Your behavior [sic] constitutes serious misconduct and is considered both unethical and unacceptable within the context of the Values and Ethics Code for the Public Service and the Mission of the Correctional Service of Canada.

You disregarded you responsibility as a Registered Nurse employed by the Correctional Service of Canada, to correctly administer medication to your patients and adhere to the legal requirements of your position. Given your refusal to meet with me or provide written submissions, I have, in addition to reviewing the reports, listened to the voice recordings of the interviews obtained during the disciplinary investigation. Based on my review of the voice recordings, I have concluded that you have not acknowledged your errors.

Your failure to acknowledge your responsibility and show any remorse in all the findings is unethical. As a Registered Nurse for the Correctional Service of Canada it is expected that you will administer correct nursing standards thereby contributing to the health and welfare of inmates. The findings of the investigation have found otherwise.

In making my decision, I have concluded that your actions have irrevocably damaged the trust and confidence of your position as Registered Nurse for the Correctional Service of Canada. I have taken into consideration your years of service but this does not mitigate the seriousness of your actions.

Therefore, based on the forgoing and in accordance with the Financial Administration Act, Section 12(1)(c), you are hereby advised that your employment with the Correctional Service of Canada is terminated effective close of business day, April 10, 2007.

In accordance with Article 34 of Health Services Collective Agreement you have the right to file a grievance against this action.

          Glen Brown

          Warden

          (604)850-8247

          Matsqui Institution

          33344 King Road, P.O. Box 2500

          Abbotsford, B.C.  V2S 4P3

          Employee Signature    

          Date of Receipt   2007-04-10

250 The particulars of the allegations against Ms. Baptiste are found in Exhibit E-8, in a memo dated October 13, 2006. I set them out earlier in this decision. That document was handed to the grievor early in the investigation process and formed the basis of the evidence called by the employer in support of its case at the hearing. There are 10 allegations of improper conduct. I will now examine each allegation in light of the evidence adduced at the hearing to determine if the employer established its proof, on a balance of probabilities, for each allegation.

251 It is trite to state that the employer has the burden of proving those grounds. The parties raised at the outset the issue of the standard of proof required to meet that burden. I agree with counsel for the employer’s statement as follows from his written submissions:

[30] The standard of proof required to meet the burden is that articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354: “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

…

[31] More recently the Supreme Court of Canada (SCC) has confirmed that there is only one standard of proof required in civil cases. In F.H. v. McDougall, 2008 SCC 53, the Supreme Court noted:

[40] … I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.

…

[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency.

…

[49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[32] The standard articulated for civil matters is the application of the standard for arbitration hearings and the principle is recognized in Palmer and Snyder, Collective Agreement Arbitration in Canada (4th Edition) at page 213. This standard is to be applied to the following three questions:

• Has the employer proven its allegations?

• Does the grievor conduct warrant discipline?

• Does the grievor’s conduct warrant termination?

1. The Allegations

a.  Allegation 1: On August 20, 2006, administration of incorrect medication to inmate X, resulting in an injury.

252 On a balance of probabilities, I am satisfied that the employer met its burden of proof for Allegation 1, for the reasons that follow.

253 The employer established in evidence that, on August 20, 2006, the grievor gave inmate X a small brown envelope containing 6 tablets, each a 25 mg dose of Seroquel (Exhibit E-1). This drug is an antipsychotic for adult patients suffering from schizophrenia and bipolar disorders. The envelope bore handwriting that it was to the attention of inmate X and mentioned “Zoloft 150 mg dose times 6 tabs (25 mg)”. Zoloft, an anti-depressor, was the medication that had been prescribed to inmate X.

254 In the following days and then in the disciplinary investigation interview of the grievor on October 6, 2006 (Exhibit E-19), Ms. Baptiste denied giving inmate X a small brown envelope, denied that the handwriting on the small brown envelope was hers, indicated that she gave him what was prescribed in the MAR in one single dose of 150 mg of Zoloft and indicated that inmate X swallowed it in her presence. Inmate X contradicted her account of what transpired.

255 Mr. Thorpe, a forensic document examination expert witness, presented uncontradicted evidence (Exhibit E-6) that the handwriting on the small brown envelope (Exhibit E-1) was that of Ms. Baptiste. Nurses Mathieson, Plate and Raketti, called as witnesses by the employer, also testified that they recognized Ms. Baptiste’s handwriting and initials from years of working with her.

256 Finally, on March 29, 2009, during the adjudication hearings in these matters, Ms. Baptiste admitted through her counsel that it was her writing on the small brown envelope (Exhibit E-1).

257 Consequently, I find that the employer met its burden of proving that the grievor administered the wrong medication to inmate X on August 20, 2006.

258 The second part of the allegation is whether the error caused an injury to inmate X, as the employer contends in the termination letter of April 10, 2007. Inmate X stated that, shortly after taking 4 pills of 25 mg of Seroquel on August 20, 2006, he “passed out, had a total loss of memory and lost coordination, fell and bruised [himself].” A number of witnesses confirmed seeing a bruise or scrape on inmate X’s right side. Dr. Virani testified and expressed his professional opinion as to the question of whether Seroquel (100 mg) can cause the type of reaction described by inmate X”.

259 Dr. Virani’s professional opinion was the following:

 … that for this reaction to have occurred was “highly unlikely” and not in keeping with the average person’s reaction to the dose of Seroquel (even if it were given in combination with the other medications this patient was taking) given all the previously mentioned facts of this case.

[Emphasis added by the undersigned]

Originally, the employer’s witness, Dr. Healy, was of the same opinion as Dr. Virani, which is that “such a reaction was possible but highly unlikely.” However, based on her examination of inmate X’s earlier ingestion of Seroquel in November-December 2004, she modified her position to “possible but more likely.”

260 Therefore I am left with two diverging medical opinions on the likelihood that the ingestion of the incorrect medication caused inmate X to experience dizziness, fall and injure himself. On balance, I accept Dr. Virani’s opinion for the following reasons. Dr. Virani made a detailed assessment of inmate X’s medical background, his numerous medical conditions and the medical treatment for those conditions and made an elaborate analysis of the different medications that the inmate took over an approximately two-year period before the August 20, 2006 incident. The fact that inmate X experienced dizziness and nausea after ingesting Seroquel in 2004 could equally be attributable to the ear infection diagnosed by the doctors, as reflected in Exhibits E-49 and E-50, which may present the same symptoms.

261 Dr. Virani then described in detail the different possible reactions and interactions of each of inmate X’s prescribed drugs with Seroquel. He then considered the possible reactions of the drugs inmate X was prescribed with different illegal drugs that inmate X was known to have taken. He then divided the illegal drugs that inmate X had abused in the past into two categories (uppers and downers) and established medically what the effects would be of both categories of abused drugs on Seroquel.

262 Finally, using his evidence-based practice and study of medications used to treat different depressive disorders and drug abuse, Dr. Virani stated that he had not seen or heard of the type of reaction that inmate X described in his more than 16 years of practice, nor had the colleagues that he consulted.

263 Consequently, I do not consider that the ingestion of Seroquel along with inmate X’s three other prescribed medications caused him to fall and sustain a bruise to his right side. Furthermore, an examination of Exhibit U-25 (X-ray request from August 21, 2006 and the X-ray examination of inmate X’s right ribs signed by a physician on August 22, 2006) indicated that “… the ribs are intact and there is no fracture or bony abnormality evident.”

264 I conclude that the employer, on the other issue of injury, has not met its burden of establishing that, on a balance of probabilities, the ingestion of the wrong medication administered by the grievor resulted in an injury to inmate X. That said, this does not in my view lessen Ms. Baptiste’s responsibility in the circumstances.

b. Allegations 2, 3 and 9: On August 21, 2006, administration of incorrect medication to inmate S and  alteration of the Narcotic Controlled Drug Record regarding the administration of inmate S’s medication – On August 19, 2006, alteration of the Narcotic Controlled Drug Record regarding the administration of inmate S’s medication.

265 An examination of the NCDR (Exhibits E-15 and E-16), the MAR of inmate S (Exhibit E-17), the Doctor’s Order and Progress Notes (Exhibit E-18), and the transcript of the interview of Ms. Baptiste (Exhibit E-19), tells us that inmate S was prescribed 40 mg of Ritalin (slow release) and 20 mg (regular). On the MAR, an error was made in transcription, apparently by another nurse. It erroneously indicated that inmate S was to receive 60 mg of Ritalin (slow release) starting on August 19, 2006. It appears that the grievor administered the incorrect medication to inmate S, as this is reflected in the NCDR and she admitted as much during the disciplinary investigation.

266 Based on that documentary evidence and the explanations provided at the hearing about the changes made to the NCDR for August 19 and 21, 2006, I am satisfied that the grievor administered incorrect medication to inmate S. Although her error stemmed from a transcription error made by another nurse, and is hence not entirely the grievor’s responsibility, I find that she altered the NCDR by writing over the 60 mg that had actually been administered to inmate S and by inserting in its place the medication that the inmate was supposed to receive, i.e., Ritalin, 40 mg (slow release) and 20 mg (regular).

267 The grievor persistently denied making those changes, as is shown in the following excerpt from Exhibit E-18:

[At page 21, line 37:]

Diane Thiessen: Did you make those changes?

Gloria Baptiste: “I didn’t.”

[At page 22, lines 10-12:]

Diane Thiessen: Okay. And so you’re stating that you did not change it to 40 and 20.

Gloria Baptiste: I didn’t change this.

268 The grievor did not testify before me. I am left with the uncontradicted evidence of Mr. Thorpe’s identification of Ms. Baptiste’s handwriting and initials, as well as the testimony of her colleagues (Nurses Plate, Mathieson and Raketti) asserting that it is Ms. Baptiste’s handwriting. Therefore, I feel compelled to find that, on a balance of probabilities, the grievor did alter the NCDR on those two dates. She could have corrected the changes by simply following the prescribed guidelines when medication mistakes or errors are made, which she admitted to her superiors that she knows. However, instead, the grievor after the fact altered the NCDR. In doing so, she violated the legal record that the NCDR constitutes, an action that I consider most serious.

c. Allegations 5 and 6: On August 19, 2006, administration of incorrect medication to inmate J and alteration of the Narcotic Controlled Drug Record regarding the administration of inmate J’s medication.

269 I reach the same conclusion on these allegations as I did on the previous ones. It is clear from inmate J’s MAR (Exhibit E-20) that, on August 19, 2006; he was to receive 20 mg of Ritalin (slow release). It is also clear form the NCDR (Exhibit E-15) that inmate J received his medication only once on August 19, 2006. The record indicates that he received 20 mg at 15:20. However, after the fact, it appears that the grievor added “20 mg SR AM” to the NCDR. The grievor denied making those alterations during the disciplinary investigation and has not testified before me. I find that the handwriting is consistent with the grievor’s, which was confirmed in the evidence by the nurses who worked with the grievor, namely, Nurses Mathieson, Plate and Raketti. This change was not initialled and was clearly made after the fact. It relates to the cascading error in the Ritalin (slow release) column that the grievor created when she attempted to hide the error made in inmate S’s case at 09:30 that same day.

270 I am satisfied that the employer has proven these allegations.

d. Allegations 7 and 8: On August 20, 2006, administration of incorrect medication to inmate Y and alteration of the Narcotic Controlled Drug Record regarding the administration of inmate Y’s medication.

271 I reached the same conclusion on these allegations as I did on the others. It is clear from the Doctor’s Order and Progress Notes (Exhibit E-21) that inmate Y was to receive 40 mg of Ritalin (slow release) in the morning and 20 mg (slow release) at 15:00 on August 20, 2006.

272 As explained to me at the hearing, the MAR (Exhibit E-21A) reflects the fact that inmate Y received 40 mg of Ritalin in the morning and another 20 mg (slow release) in the afternoon, consistent with the doctor’s order. The NCDR (Exhibit E-15) reflects the fact that inmate Y received 40 mg of Ritalin (slow release) in the morning on August 20, 2006, as per the MAR and the doctor’s orders. However, the NCDR (Exhibits E-15 and E-16) reflects that the inmate received 40 mg of Ritalin (slow release) at 15:20 on August 20, 2006. I accept counsel for the employer’s description of the problem with this entry as set out in his written submissions:

a) It is inconsistent with the MAR and the doctor’s order. The inmate was only to receive 20 mg in the afternoon.

b) When cross-referenced with (exhibit E-15A), it is clear that the grievor made this change after the fact in order to hide/cover-up the “cascading error” in the pill count for Ritalin (slow release).

c) Exhibit E-15A reflects the fact that the inmate received the 20 mg that he was supposed to get but that the grievor went back after the fact and altered the NCDR to assist her “cooking the books/cover-up” on the pill count related to Ritalin (slow release).

d) The addition of “40 mg” to line 3 of exhibit E-15 is the grievor’s handwriting and is clearly done after the fact.

273 Once again, the grievor consistently denied making those alterations when asked for an explanation during the investigation and did not provide any explanation to me, as she did not testify at the hearing. I conclude that the employer has proven its allegations 7 and 8.

274 However, it should be noted that the impact on and consequences to the inmates (S, J and Y) is, although contrary to all the rules and legislation, of a lesser consequence since none suffered any known ill effects or any consequence. None were ever questioned about these errors by any representative of the employer. Fortunately for the three inmates, the “harmless” Ritalin (slow release) did no medical damage to any of them. However, that does not negate the grievor’s responsibility and her accountability for her patients or responsibility to provide inmates with proper medical care. To the contrary, her behaviour of altering the NCDR to cover up an error is inconsistent with the position of trust given to a nurse. The grievor was aware of her error and she failed to correct it properly.

e. Allegation 4: On August 21, 2006, alteration of the Narcotic Controlled Drug Record morning narcotic count completed by Nurses Mathieson and Plate.

275 On a balance of probabilities, I am satisfied that the employer met its burden of proof on allegation 4. I thoroughly examined the relevant extract from the NCDR, which was filed in evidence as Exhibits E-15 and E-15A. Exhibit E-15A is a photocopy of Exhibit E-15 taken at 14:00 on August 21, 2006. I emphasize that all annotations made on Exhibit E-15 that do not appear on Exhibit E-15A were made after 14:00 on August 21, 2006 [emphasis added by undersigned].

276 An examination of Exhibit E-15 at line 12 from the top of the page reveals that the pill count for the morning of August 21, 2006 was indeed changed. The morning count was made jointly and signed by Nurses Mathieson and Plate at 07:00. At around 13:00, Nurse Mathieson noticed that Ms. Baptiste was in the area where the NCDR was located. The NCDR shows that the grievor indeed inserted an entry at 13:00. The question then is: who changed the pill count?

277 When Nurse Mathieson noticed the change, only four nurses had access to the NCDR. They were Nurses Mathieson, Plate, Raketti and Baptiste. Three of the four nurses (Mathieson, Plate and Raketti) testified that they did not make the change. All three testified that they recognized the handwriting of the change as the grievor’s. To be noted is the grievor’s distinctive composition of certain letters, such as “mg” and the number “5.” The count was altered in the Ritalin (slow release) column to “25” – with the “5” written over. When compared with the grievor’s handwriting on the same page (entries she initialled for “5”), it is consistent. The upper part of the “5” tails upward in a very distinctive fashion, unlike “5” on the same row written by Nurse Mathieson, but consistent with the “5” written two lines above by Nurse Baptiste.

278 In light of that evidence, as well as the expert testimony of Mr. Thorpe, who expressed the opinion that the handwriting is that of Ms. Baptiste, I am satisfied that the grievor made the change to the pill count on Exhibit E-15 sometime after 14:00 on August 21, 2006. I conclude that the employer has proven allegation 4.

279 I must again stress the fact that Ms. Baptiste denied making that modification when confronted with the facts in the days following the incidents, that she persisted in her denial during the investigation and that she did not testify before me at the hearing.

f. Allegation 10: Between August 16 and 21, 2006, failure to follow standard procedures when administering changes to the Narcotic Controlled Drug Record.

280 The employer tabled a considerable number of rules, policies and procedures that in its view Ms. Baptiste infringed by her actions between August 16 and 21, 2006. I will focus my analysis on those procedures that are more directly related to allegation 10 and to administering and changing the NCDR. 

281 First, the CSC “Regional Health Services Orders for Narcotics and Control Drugs” was entered as Exhibit E-26. The objectives of those orders are to ensure that narcotics and control drugs are administered within the pharmaceuticals and legal standards of the community. I quote as follows salient points of that document to underline the compulsory nature of the procedures relating to the NCDR:

…

(4) All drugs will be entered in the Narcotic and Control registry, in a legible manner.

(5) No alterations of any column shall be acceptable.

(6) Any errors in calculation or any incorrect entries shall be ruled through and the corrected entry inserted. The staff member noting the information has been corrected must initial this entry.

…

(8) When there are two nurses the Narcotics Control Drugs count shall be signed and co-signed at least twice daily. When there is only one nurse, the nurse shall complete the Narcotic and Control Drugs count and sign, and then the next on coming nurse shall count and co-signed the register.

(9) Should an incorrect Narcotics and Control Drugs count be found, all staff members shall remain on the premises or be recalled to the premises, if deemed necessary, until the count has been rectified.

…

Also completion of appropriate documentation to include an observation report and a Nursing Incident Report.

…

282 I also refer to Exhibit E-23, “Regional Health Services Orders”, the objective of which are to guide nursing staff in the completion of nursing incident forms following an accidental occurrence involving an inmate. It is the responsibility of Health Services nursing staff to report incidents to the physicians and chiefs of Health Services in a timely manner. Attached to the exhibit is the “CSC – Nursing Incident Form” that must be completed by nurses following an inmate related incident.

283 Exhibit E-24 contains the elaborate documentation directives that provide a clear understanding of the principles that professionals should use when charting health information in a medical file. It provides, at item 3 that “staff who are not familiar or have not received training in this method must acknowledge this to their Chief of Health Services who will ensure that a training session will be provided.” It explains charting expectations, including the criteria for auditing quality charting.

284 The employer produced Exhibit E-25, “Medication Error – Incident”. That report is used to provide a method of documentation to facilitate reviewing medication errors, to ensure and improve the safe administration of medication to inmates. It is the responsibility of Health Services nursing staff to report and document any medication incident or errors or adverse drug reactions to the physician and chief of health services in a timely manner. This exhibit provides the detailed procedures to follow depending on whether the incident impacts the security of the institution. The procedure also has an elaborate sequence of forwarding for nursing staff to follow, all of whom have received appropriate training.

285 Considering all the allegations I have found proven by the employer, it is clear to me that Ms. Baptiste did not follow fairly basic practices for administering medication and updating the NCDR. Thus, I am satisfied that the employer has established the foundation of allegation 10.

2. Has the employer established misconduct?

286 Having found that the employer proved the allegations against Ms. Baptiste, I must determine whether those constituted misconduct worthy of attracting discipline. I have no difficulty finding that the administration of incorrect medication to her patients, in particular controlled drugs, is a serious professional fault. Not immediately reporting the errors when she was apprised of them is even more damaging. The record shows that she did not report her errors on several occasions between August 16 and 21, 2006. She was aware of appropriate procedure and should have understood that it is critical to react immediately and put into motion the necessary corrective measures to avoid medical complications to the patient. Altering the NCDR by inserting a false entry so that the registry would show that the correct prescribed medication was administered, knowing that an incorrect medication or dosage had in fact been administered, is a very serious action. Finally, changing the pill count number appearing on the NCDR after the pill count had been conducted by two of her colleagues, without informing them of the change, is quite simply appalling. The reaction of Ms. Plate and Ms. Mathieson, who both testified before me, was understandably quite telling.  They noted that it is unthinkable to alter a pill count for which two colleague nurses are legally responsible without at least bringing the matter up with them, as it may call into question their licenses.

287 The policies and orders filed by the employer, to which I referred earlier under allegation 10 as well as the “Rules of Professional Conduct” developed by the CRNBC all speak clearly to the care that must be given to the administration, the control and the recording of medication. Section 59 of the CDSA, makes it an offence as follows to inappropriately alter an official record of medication required by that Act, which the NCDR clearly is:

59. No person shall knowingly make, or participate in, assent to or acquiesce in the making of, a false or misleading statement in any book, record, return or other document however recorded, required to be maintained, made or furnished pursuant to this Act or the regulations.

288 I have not had the benefit of Ms. Baptiste’s explanations about those facts in spite of her many opportunities to provide one, and I am left to speculate as to the reasons why she behaved as she did. More distressing in my view is that she has denied doing what the employer alleges she did, even faced with a preponderance of evidence proving the contrary. Such behaviour, taken together, flies in the face of the most basic canons of professionalism, ethics and honesty that are expected of a nurse of Ms. Baptiste’s experience.

289 I have referred several times in my reasons to the fact that Ms. Baptiste did not testify at the hearing. Therefore, I am left to assess the employer’s decision to terminate her employment without the benefit of any first-hand explanation from her. Having found that she engaged in serious professional misconduct when she administered incorrect medication, failed to report or acknowledge the situation, and inappropriately altered the NCDR to rectify those mistakes, I believe that it fell on the grievor to provide a satisfactory explanation to me. Her failure to do so must lead me to draw unfavourable inferences not only about facts on which she could have brought her particular perspective but also on whether the decision to terminate her employment was reasonable in the circumstances.

3. Medical Defence

290 The grievor’s representative raised a medical defense to justify Ms. Baptiste’s failure to testify and to explain, generally, her behaviour throughout the events at issue and her denial of the facts held against her. The grievor has the burden of proof of her medical defense (Canadian Labour Arbitration, Gorsky, chapter 9.4(e) and Kelly v. Treasury Board (CSC), 2002 PSSRB 74, at para 99)

291 The grievor’s expert witness, Dr. Koch, was asked the following question: “Would Ms. Baptiste’s life experience and work experience affect her ability to testify on her behalf in an investigation or adjudication?”

292 Dr. Koch’s answer was, “She would be more likely to engage in adversarial or evasive responding to questions … ” Dr. Koch’s testimony was that Ms. Baptiste does not suffer from any acute mental health conditions. Dr. Koch believes that she suffers some maladaptive personality traits of narcissism and suspiciousness that may interfere with her adjustment to some work environments. However, both Dr. Koch (the grievor’s medical expert) and Dr. Levine (the employer’s medical expert) agree that the grievor does not suffer from any mental health problems.

293 The grievor’s representative relied on the Vancouver (City) case to counter the employer’s argument of adverse inference that I should draw from the fact that the grievor did not testify. For the grievor to establish that she was incompetent to testify, there would have to be clear medical evidence that she was incapacitated. Even accepting what Dr. Koch said, the grievor’s evidence does not meet that high medical threshold. Dr. Koch did not say that the grievor was “incompetent to testify” (as the phrase was used in the Vancouver City case). Dr. Koch testified that she “would be defensive and evasive.” Being “defensive and evasive” does not mean that the grievor would be incompetent to testify.

294 In establishing the proper legal test to be applied, the prevailing jurisprudence states that “… merely being ill does not negate intent, nor in every circumstance excuse the Grievor from the consequences of her conduct” (Canada Safeway Ltd.).

295 Arbitrator Innis Christie in Canadian Postmasters and Assistants Association v. Canada Post Corporation, (2001) 102 LAC (4th) 97, at pages 114 and 115, adopted the following test for establishing a medical defense:

…

“Where illness or psychological circumstances arise which are relied upon to explain the aberrant conduct there are a number of necessary elements that must be established before an arbitration board can feel secure that reinstatement under any conditions is the proper course of action…

1) It must be established that there was an illness, or condition, or situation being experienced by the grievor…

2) Once an illness or condition has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct. The mere existence of a psychological stress does not automatically lead to improper behavior such as theft. Again most commonly this is established by expert evidence…

3) If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor’s conduct less culpable…

4) Assuming the three elements set out above have been established, the arbitration board must be satisfied that the grievor has been rehabilitated … there must be a sufficient degree of confidence that the employee can return to the workplace as a fruitful employee and that the underlying problems that led to the improper behavior in the first place have been resolved… Again, in addition to the evidence of the grievor, it is usual that expert evidence would be submitted to establish that rehabilitation has occurred.

…

[Emphasis added]

296 The medical proof is that the grievor has no mental health condition and no medical psychological disorder. The only area of some disagreement between the two medical experts was the degree of her negative personality trait, which appeared only in her working environment at the institution.

297 The evidence is that the grievor can clearly distinguish right from wrong not only because her medical expert testified to that fact but also because the documentary evidence of Dr. Alan Buchanan, an occupational psychiatry specialist, to whom Dr. Levine referred to in his report, confirmed that Ms. Baptiste’s global assessment of functioning was at 90 out of 100. Dr. Koch also testified that the grievor functioned at a very high level.

298 Therefore, I cannot conclude with certainty that the grievor has met the required first three elements of this four-fold process set out in Canada Post Corporation. Furthermore, I am not persuaded by the evidence that there was a displacement of responsibility from the grievor sufficient to render her conduct less culpable. Applying that medical test to the facts before him in Casey v. Treasury Board (Public Works and Government Services Canada), 2005 PSLRB 46, adjudicator Giguère noted as follows: “I agree with counsel for the employer that such a linkage has not been established through the evidence. At the time of all the serious incidents in the fall of 2000, Mr. Casey knew the difference between right and wrong [emphasis added by the undersigned]”.

299 Despite my remarks on the first three steps, my assessment of the evidence is that the grievor has not established the fourth element of the Canada Post Corporation test, namely that she is rehabilitated. As the grievor’s representative commented in his written argument regarding allegation 10,

…

The grievor agrees that many nurses at Matsqui did not follow standard procedures when administering changes to the NCDR.

The grievor agrees there were many times when she did not follow standard procedures when administering changes to the NCDR.

The grievor does not agree that she did not follow standard procedure when administering changes to the NCDR between August 16 and 21, 2006.

[Emphasis added by the undersigned]

…

300 That last statement by the grievor through her counsel completely contradicts my assessment of the evidence submitted to me under oath at the hearing. I am compelled to find that, at the argument stage of the hearing (October 29, 2009), the grievor was not rehabilitated because she, at that stage, was still in denial of violating standard procedures when changing the NCDR between August 16 and 21, 2006.

301 Finally, with respect to the question of rehabilitation, Dr. Koch testified that “rehabilitation for the grievor was unlikely.” He noted that the grievor’s personality characteristics had “a low probability of changing even with appropriate therapy.” In cross-examination, Dr. Koch noted that the change in employment for the grievor “may have done her good.” Dr. Levine also confirmed that the grievor would be best suited to work outside the penal setting.

302 Even accepting Dr. Koch’s testimony, the grievor failed to meet the burden of establishing a successful medical defense. Dr. Koch, in cross-examination, testified that the grievor “knew the difference between right and wrong and had the capacity to make the right decision but chose not to when she decided to engage in a defensive posture.”

303 Dr. Levine noted the following, based on his review of the supporting material (Exhibits E-64A and E-64B) and his interview with the grievor:

… The grievor did not demonstrate any of her negative behaviour outside the selective setting of working in a penal environment. Currently, the grievor is working quite well at two separate employers, doing a part time master’s degree in nursing and is living on her own. There is nothing to suggest that she has a negative personality trait. If this were the case, the established medical consensus is that one would see the negative patterns exhibited in a wide range of social and personal contexts. There is no evidence that the grievor is having such problems any other place in her life.

304 Finally Dr. Levine, at page 13 of his medical report, states that “in other words, it is evident that Ms. Baptiste does not have any psychiatric condition that could explain or justify her blunt denial and accusatory tendencies” [emphasis added by the undersigned].

305 I reiterate that the burden of establishing the medical defense was on the grievor. I am satisfied that, on the balance of probabilities, she has failed to meet that burden of proof, and her medical defense must fail.

4. Condonation

306 Evidence was led by the grievor’s representative to support the argument that the employer in the past condoned the type of behaviour for which Ms. Baptiste was disciplined and that other nurses had altered entries in the NCDR without being subject to any form of discipline. The grievor’s representative argued that the employer cannot have one set of rules for Ms. Baptiste and another set for other employees and urged me to conclude that she was treated differently from others, which is unacceptable and should at the very least mitigate the discipline imposed on her.

307 The testimony of Ms. Thiessen and Nurse Raketti was that, over the years, other nurses at the institution have made recording errors and mistakes, in violation of CSC rules and regulations, and have improperly altered the NCDR. That was conceded by the employer. Both witnesses stated that, as a result, appropriate training and information sessions were provided to minimize mistakes and errors. Ms. Thiessen’s and Nurse Raketti testified that, to the best of their knowledge, Nurse Baptiste is the only nurse at the institution who has been investigated for her medication-related errors and alleged violation of the NCDR.

308 Accordingly, when a grievor is able to prove that other employees who engaged in the same conduct for which she was disciplined, either were not disciplined at all or received lighter disciplinary sanctions, then discrimination is established against the grievor, even though it may be established that the employer did not act in bad faith. However, when it is found that the penalty imposed on a person was based on materially different circumstances than in other cases, an allegation of discriminatory treatment will fail. That principle is well established and the jurisprudence is voluminous on this point.

309 The allegations against Nurse Baptiste were tenfold and were described in detail earlier in this decision. In the termination letter of April 10, 2007, the warden concluded that Ms. Baptiste incorrectly administered medication and medication dosages to inmates, which resulted in an injury to an inmate. He concluded that the grievor altered medication records to cover up her actions. He found that she acknowledged that she knew the protocol for reporting medication errors but that she failed to follow those protocols. He concluded that the grievor committed serious misconduct, which was both unethical and unacceptable to the CSC. Finally, he concluded that the grievor’s failure to acknowledge her errors and her lack of remorse had irrevocably damaged the trust and confidence requirements of her position.

310 As I explained earlier, I found that the employer has proven all the material facts held against Ms. Baptiste, except for the resulting injury to an inmate, which, as I have stated before, does not alter my assessment of the employer’s case against the grievor. Clearly, what is at issue in Ms. Baptiste’s case goes much further than errors in entering information in the NCDR, which is the only ground on which the grievor’s defense of condonation or unequal treatment is founded.

311 The grievor had the burden of proof on the issue of condonation. For her to succeed, she had to prove that the “… alleged violations of the other nurses were the same offences and that those offences were alike in all relevant respects,” as counsel for the employer put it in his submissions and which I adopt. The grievor did not meet that burden of proof, and I find that her condonation defense must fail.

5. Is termination an appropriate penalty in the circumstances?

312 The next step is to examine the appropriateness of the discipline imposed by the employer, having regard to the nature of the misconduct, the nature of the grievor’s responsibilities with the employer and any mitigating or aggravating factors. The arbitral jurisprudence has identified a number of mitigating and aggravating factors when assessing discipline, including the following, relevant to this case:

• the seriousness of the offence;

• the grievor’s previous good record;

• the grievor’s length of service;

• whether the offence was an isolated incident or part of a pattern of behaviour;

• whether the penalty imposed has created a special economic hardship for the grievor; and

• whether the grievor apologized or in some way recognized his or her culpability.

(For a general overview, see Canadian Labour Arbitration (Third Edition), Brown and Beatty, at paragraph 7:4400)).

313 As stated, the conduct that led to terminating Ms. Baptiste’s employment is very serious. As a professional nurse in a penitentiary setting, the employer is entitled to expect the utmost degree of professionalism, ethical behaviour and honesty from persons in those positions.

314 In my view, Ms. Baptiste, by her conduct between August 16 and 21, 2006, breached those fundamental obligations. I am troubled by the fact that, rather than acknowledging her errors and showing signs of willingness to amend her conduct, she preferred the route of persistently denying the facts held against her, which I found were proven by the employer. I am at a loss to understand why the grievor took that posture, and I find it difficult to escape the conclusion that the chances of her rehabilitation are slim.

315 On the other hand, I was also troubled by Nurse Sabir’s testimony, mainly on two statements that have remained uncontradicted by the employer, which are that Nurse Baptiste was held to a higher standard of accountability than other nurses and that management of the institution, unlike other penal institutions in which she later worked, remained passive faced with situations in which inmates proffered foul language and racial slurs towards nurses and other staff. The evidence is clear that Nurse Baptiste, being the only African Canadian nurse in the institution, was subject to repeated abusive language, including racial slurs, from inmates, and on occasion even from a former supervisor. The employer was apprised of those situations and did not take appropriate corrective actions with a view to stopping that kind of behaviour. I was struck in particular by an example that Ms. Sabir referred to. An inmate at the RTC, because of his abusive language and racial slurs towards nurses and other staff, was transferred to the Kent maximum-security penitentiary as a corrective measure. This example shows that some federal penitentiaries in Canada have a zero-tolerance level for inmates who use abusive language and racial slurs towards nurses and staff. That zero-tolerance, or next-to-zero-tolerance level, is a most desirable rule, in my view, in the Canadian federal penitentiary system.

316 It may be that those unfortunate events took their toll on Ms. Baptiste and, as Ms. Sabir put it, caused her to become “recoiled” and that they affected the quality of her relationships with others. In the final analysis, I do not find that this evidence justifies or even explains the professional faults of Ms. Baptiste in August 2006, which in my view encroach upon the most basic level of accountability for registered nurses. However, I hope that the employer will take this opportunity to address the problem, as described by Ms. Sabir, of its tolerant attitude for abusive language and racial slurs in some penitentiaries and that it will take appropriate and immediate corrective measures to eliminate such unacceptable behaviour in federal penitentiaries in Canada. Working in a penitentiary environment brings tremendous challenges for all employees, including health professionals such as Nurse Baptiste and her colleagues, and the employer has a duty to ensure that, through a zero-tolerance policy on racial slurs and disrespectful behaviour, they can carry out their duties in an environment that is, to the extent possible, free of the types of situations that Ms. Baptiste and possibly others have experienced.

317 Ms. Baptiste was 54 years old at the time of her termination and had approximately 17 years of service with the employer. She had no previous disciplinary record, although certain aspects of her performance were brought to her attention as being not completely satisfactory over the years. It was pointed out that the incidents at issue occurred on the first weekend on which Ms. Baptiste worked alone as a result of significant changes to the shift schedule and that such a context should be taken into account. However, there was no evidence that that had any effect on Ms. Baptiste’s actions on those days. I should add that there was no suggestion that she benefited financially or personally, directly or indirectly, from her conduct.

318 On the other hand, Ms. Baptiste’s conduct was serious, which is aggravated by the fact that she showed no sign of contrition or acceptance of her responsibility. She has consistently denied the facts and her responsibility in the events to this day. Her admission (through her counsel) that the writing on the small brown envelope was hers came rather late in the adjudication process, after the presentation of compelling evidence that proved that it was her handwriting. As adjudicator Marie-Josée Bédard wrote in Brazeau, the admission “… came too late in the process to be considered as a mitigating factor.” Furthermore, that admission did not come from her but was made on her behalf by her representative. She has denied all the other allegations against her, which I found were established in evidence. As adjudicator Ian Mackenzie put it in the Oliver decision, at paragraph 103,

[103] The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of the discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor has misled his employer, failed to cooperate with the legitimate investigation of allegations of conflict of interest, and refuses to admit any responsibility in the face of evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible.

319 The grievor’s lack of forthrightness during the disciplinary investigation and her lack of full cooperation throughout the whole process is in my evaluation a determining factor, among others, in her eventual rehabilitation. It also affects the necessary bond of trust required among colleague nurses who must work as an efficient and effective team to provide the best professional medical care to their patients.

320 On that point, it was quite remarkable that Ms. Baptiste’s former colleagues of the institution all testified that they had no trust in her and that they would move on or retire should Ms. Baptiste be reinstated. That speaks rather loudly to the bond of trust that is so fundamental with the type of position that she occupied. I consider this an important factor in my assessment of the appropriateness of the penalty in this case.

321 Consequently, considering all the circumstances and after weighing all the facts placed before me, I believe that the grievor has irrevocably severed the bond of trust and integrity required for her to be reinstated. For the reasons set out earlier in this decision, I conclude that the employer had just cause to terminate Ms. Baptiste’s employment. Accordingly, the termination is upheld, and the grievance (PSLRB File No. 566-02-1243) is dismissed.

B. Indefinite suspension (PSLRB file number 566-02-858)

322 I will now turn to Ms. Baptiste’s grievance relating to the indefinite suspension imposed by the employer on September 5, 2006 (PSLRB File No. 566-02-858). The employer raised an objection to my jurisdiction to hear the grievance on the grounds that it was an administrative rather than a disciplinary measure, and as a result, it falls outside the purview of paragraph 209(1)(b) of the Act. Counsel for the employer argued that the employer did not intend to punish the grievor and that the measure was taken solely for the purpose of gathering all the relevant facts to reach an informed decision in the circumstances. On the other hand, the grievor’s representative took the view that the indefinite suspension without pay constituted a disciplinary measure resulting in a suspension and that it therefore falls squarely within the scope of paragraph 209(1)(b).

323 Although the employer may label the suspension as administrative, an adjudicator is empowered to look further and examine the context and circumstances that led to the employer’s decision, to assess the true nature of the suspension. The appropriate characterization of such a suspension will flow from all the relevant circumstances. In Canada (Attorney General) v. Grover, 2007 FC 28, (appeal dismissed by Canada (Attorney General) v. Grover,2008 FCA 97),the Federal Court stated as follows about an adjudicator’s finding that a measure alleged by the employer to be administrative constituted in fact disciplinary action:

…

[46] The PSSRA established a regime for the resolution of grievances by employees in the federal public sector. In accordance with this regime, some grievances are classified as non-adjudicable, which means that the final level of decision-maker is the employer and there is no right to independent adjudication; however, employees have the right to adjudication before the Board for other kinds of issues that are regarded as more significant. Early on, the Courts recognized that some employers might try to avoid adjudication by attempting to mischaracterize the true nature of their actions. The Board adjudicators are required to look at the substance of an action rather than its form to determine whether they have jurisdiction. In the words of the Court of Appeal, “A camouflage to deprive a person of a protection given by statute is hardly tolerable.” (PSSRA, above, sections 91 and 92; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), [1989] F.C.J. No. 461 (QL); Archambault, above at paras. 9-12)

[47] Under subsection 92(1) of PSSRA [now paragraph 209(1)(b) of the Act], employees have the right to adjudication in respect of disciplinary action resulting in a financial penalty. Consistent with Penner, above, the caselaw of the Board and its predecessor recognize that sometimes employers engage in “disguised discipline” to avoid adjudication. As a threshold issue, adjudicators must determine whether employer’s actions that are, on their face, administrative in nature are in reality disguised discipline. In reaching this determination, adjudicators must look at all the surrounding facts and circumstances. (PSSRA, section 92; Nolan and Treasury Board (Health and Welfare Canada), [1994] C.P.S.S.R.B. No. 115 (QL); Tobin and Treasury Board (Fisheries and Oceans Canada), [1990] C.P.S.S.R.B. No. 11 (QL))

…

[Emphasis added]

324 The employer’s counsel referred to Canada (Attorney General) v. Basra, 2008 FC 606, in support of its position that I was without jurisdiction to review an administrative suspension pending an investigation, as it was not the employer’s intention to punish the grievor at that point. In that judgment, the Court quashed the decision of the adjudicator, who had found that a suspension without pay pending an investigation, although originally an administrative measure, became disciplinary in view of the context of the matter and specifically the failure of the employer to act diligently in gathering the material facts and deciding on the appropriate measures to be taken. In that case, the suspension was for off-duty misconduct and was imposed pending the disposition of criminal charges against the grievor. The Court overturned the decision on the grounds that the adjudicator did not consider whether the employer’s intention, in suspending the grievor, was to punish him. The Court then went on to quash the adjudicator’s decision to uphold the grievance on the merits. The Federal Court of Appeal reversed the first part of that judgment in Basra v. Canada (Attorney General), 2010 FCA 24, and stated the following:

…

[18] In this respect, the adjudicator found that the measure was administrative in nature during the first thirty days and became disciplinary thereafter. In drawing this distinction, the adjudicator was of the view that, although there was no intention to punish on the part of the employer during the initial thirty days, this ceased to be the case when the employer allowed the suspension to run indefinitely, pending the outcome of the prosecution (Reasons, paras. 99 and 100). The reasons cannot be read otherwise as there is no other basis upon which the adjudicator could have drawn the distinction.

[19] It therefore cannot be said that the adjudicator failed to consider the intention of the employer in reaching his decision and the Federal Court Judge erred in holding otherwise.

…

325 The current state of the law on this matter was aptly summarized by the adjudicator in King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45, at paragraph 62:

[62] The essential point that I draw from Frazee and from the Basra decisions is that I am required to examine the specific circumstances of this case for evidence depicting the respondent’s intent when it decided to suspend the grievor without pay and thereafter. If I am satisfied that the respondent has proven that, on a balance of probabilities, the intent underlying its “administrative” decision was non-disciplinary at the time of the decision and that it continued to be non-disciplinary during the resulting suspension, I must decline jurisdiction. Conversely, if the respondent has failed in its burden, then I must find that its decision was disciplinary in its essential character regardless of how the respondent described it and that, as a consequence, I have jurisdiction to consider the grievance under paragraph 209(1)(b) of the Act.

326 Turning to the facts of this case, the employer first decided to suspend the grievor with pay after being apprised of the events of August 19, 20 and 21, 2006 involving Ms. Baptiste. On September 5, 2006, the employer suspended the grievor without pay pending the completion of a disciplinary investigation, which would review the circumstances. At issue at that time was clearly Ms. Baptiste’s professional behaviour in the workplace with respect to the administration of prescribed drugs to inmates and her alleged inappropriate alterations of the NCDR. In other words, the employer had evidence (testimonial and documentary) that led it to conclude that the grievor had engaged in misconduct. The purpose of the investigation was no doubt to gather all the facts and to obtain explanations from the grievor about those facts and what had transpired between August 16 and 21, 2006. Simply put, the employer decided to remove the grievor from the workplace in light of what it found to be serious professional negligence on her part. The expected outcome of the investigation was to enable the employer to draw informed conclusions about the grievor’s actions and to decide on an appropriate disciplinary response.

327 The evidence showed that the union representative sought the reassignment of Ms. Baptiste to other duties within the institution, as the employer had done in previous circumstances, as an alternative to suspending her without pay and hence depriving her of her income. Warden Brown testified that he did not accede to that request because the incidents reported to him raised a serious question of trust vis-à-vis the grievor and that her continued presence in the institution posed a significant risk. Therefore, the context was a disciplinary response to what the employer perceived as inappropriate behaviour on the part of the grievor. I agree with the grievor’s representative that, when considered in the entire factual context, the suspension had a punitive effect and that it was imposed by the employer as a reaction to something that the grievor allegedly did, rather than being driven by circumstances unrelated to any fault on her part, which characterizes an administrative action. Therefore, I am of the view that the suspension clearly had disciplinary and punitive overtones and that it constituted a disciplinary action against Ms. Baptiste.

328 Therefore, I conclude that I have jurisdiction, pursuant to paragraph 209(1)(b) of the Act, to decide Ms. Baptiste’s grievance against her indefinite suspension without pay until the effective date of her termination. That grievance is adjudicable. The employer’s objection to my jurisdiction is accordingly dismissed.

329 The next question is whether the indefinite suspension was justifiable and constituted a reasonable disciplinary response by the employer. It should be mentioned that Ms. Baptiste was already suspended with pay, as of August 25, 2006, following the events of the previous weekend. The employer invoked essentially the same grounds for suspending the grievor without pay on September 5. I agree that the decision to suspend Ms. Baptiste without pay pending an investigation was an appropriate measure. This is an unabridged management right. It was entirely reasonable for the employer to ensure that it had all the facts, including the grievor’s explanations about what transpired, before deciding on a definitive measure.

330 However, the problem is with the length of the suspension. The evidence showed that, at some early point of the investigation, the employer had in hand most if not all the relevant facts needed to make a decision about Ms. Baptiste. For the most part, the grounds that the employer invoked when it informed Ms. Baptiste of her termination on April 10, 2007 (Exhibit E-9) were known to it in October 2006. Precisely, the letter sent to the CNRBC by Ms. Dean on October 17, 2006 sets out why Ms. Baptiste’s professional license should have been suspended immediately. It was the second complaint Ms. Dean made to the CRNBC, and the tone of her letter left no doubt as to its punitive nature. The reasons set out in the letter are in essence the same as those relied on by the employer when it informed the grievor that her employment was terminated on April 10, 2007, about six months later. It was argued that Ms. Dean was acting in her personal capacity when she wrote the letter. It should be noted that, in light of the high visibility of this case at the institution, Head Nurse Dean knew that an investigation was being conducted under the authority and direction of Warden Brown. I have no doubt that, given the circumstances, both the warden and Ms. Dean were fully aware of what she was doing when she requested the immediate withdrawal of Ms. Baptiste’s license. I find on balance that she was acting as a senior representative of the employer and that; at that point, she had formed the opinion that the grievor was guilty of misconduct.

331 In light of those facts, I conclude that the employer was not as diligent as it could have been in the conduct of its disciplinary investigation. The delay caused prejudice to the grievor, who was left in limbo for a significant period of time. Therefore, I conclude that the indefinite suspension was no longer justifiable after October 17, 2006. Accordingly, the grievance against the indefinite suspension pending the investigation is allowed in part.

332 The grievor’s representative argued that the investigation was flawed for many reasons, essentially because the employer violated the rules of natural justice and fairness in how it conducted its investigation. Given my disposition of the grievance on the indefinite suspension, I find that it is unnecessary to address those issues. I will simply mention that, in my view and subject to my findings, the investigation was properly conducted. Had there been procedural errors or omissions by the employer in the conduct of the investigation, they would not have, in and of themselves, vitiated the suspension or the termination. As the Federal Court held in Tipple v. Canada (Treasury Board), [1985], F.C.J. No. 818 (C.A.)(QL), the adjudication hearing is de novo, and any irregularity or unfairness in the disciplinary process is cured at adjudication, where the employer bears the burden of proving the facts that led to the imposition of the disciplinary measure.

333 For all of the above reasons, I make the following order:

V.  Order

334 The grievance relating to the suspension with pay (PSLRB File No. 566-02-1010) was withdrawn. The Board file is therefore closed.

335 The grievance relating to the indefinite suspension without pay (PSLRB File No. 566-02-858) is partially allowed. The suspension is quashed as of October 17, 2006, and the Deputy Head shall reimburse the grievor all salary and benefits that she would have received between October 17, 2006 and April 10, 2007, as if she had been performing the duties of her position during that period. I remain seized of this matter for 60 days after the date of issuance of these reasons should the parties have difficulty implementing my order.

336 The grievance relating to Ms. Baptiste’s termination (PSLRB File No. 566-02-1243) is dismissed.

November 9, 2011.

Roger Beaulieu,
adjudicator