Canadian Employment Law Today

8 | August 15, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends and her colleagues on the clinic's support staff were employees of the hospital, but took their direction from the clinic's doctors. ere were two other clinical secretaries at the time of Langford's arrival and they did similar work — though some tasks were the responsibility of specific individuals. A key part of the job involved processing patient referrals from emergency room and family doctors — logging them onto a spreadsheet, date stamping them, and placing them in the on-call doctor's inbox the day they were re- ceived. e clinic usually received between five and 10 referrals per day and they were a top priority in the clinic since the patients usually needed timely medical attention. One of the other clinical secretaries was paid in a higher pay band than Langford, which caused tension between them since Langford felt this co-worker did less work and Langford processed most of the refer- rals. Langford sent several emails over the course of 2014 and 2015 to some of the doc- tors complaining about the distribution of work and that she was so busy it was difficult to process referrals in a timely manner, lead- ing to a verbal warning about sending emails that were disrespectful to her co-workers. ere were also issues with Langford taking time off without prior authorization from the hospital and not consistently re- porting sick absences on the timesheets — as well as not reporting when errors regarding these absences appeared in the pay system. Langford told the union and the HR de- partment about her frustrations with her work environment and HR agreed to sup- port a move to another unit if something came up. However, full-time secretarial po- sitions were scarce and Langford didn't want a lower-paid position, so nothing developed. Worker suspended In July 2015, the doctors in the clinic had had enough of Langford's emailed com- plaints and suspended her for five days with- out pay for her "insubordinate and at times disrespectful and unprofessional" emails. ey also discussed her time off issues and warned that they had agreed to the suspen- sion "in lieu of the termination of your em- ployment." ey warned Langford that if she demonstrated any further "inappropriate behaviours" or failed to follow the hospital's code of behaviour policy, her employment would be "immediately terminated." On the second day of her suspension, Langford emailed one of the doctors saying she "didn't know if I'll be back" because she was depressed and was going to see her doc- tor and psychiatrist the following week. e hospital's occupational health department inquired if she needed a medical leave of ab- sence and asked for support from her doctor for short-term disability benefits. Langford's doctor responded that "this was not a medi- cal problem, it was an interpersonal problem and she would need to develop strategies to deal with the situation." Langford returned to work after her suspension finished and made no request for accommodation due to any mental health issues. When Langford returned from her sus- pension, the hospital's director of medical affairs emphasized that further misconduct would not be tolerated and she should con- tact him if she had any questions or concerns about hospital policy or taking time off. On Aug. 21, a clinic doctor emailed the director of medical affairs about his dissat- isfaction with Langford's attendance and job performance. e director was just heading on vacation and said he would address the issue when he returned in two weeks. Six days later, on Aug. 27, the on-call doc- tor arrived at the clinic in the morning and saw that his in-box was empty, so he went to the lab. A couple of hours later, he went back to his office to discover a large stack of refer- rals in his in-box with date stamps ranging from Aug. 10 to Aug. 26. He was annoyed be- cause referrals were to be given top priority, so he asked who was responsible for putting referrals in his in-box. Langford was and ex- plained that she was busy and the referrals "couldn't all be done the same day." She didn't speak to the doctor further and appeared to dismiss him with a wave of her hand. Langford was called to meet with the doc- tor and the clinic's lead doctor, but Langford refused to sit down and left the office. e doctors discussed Langford's emails and the referrals — including one for a patient re- quiring a pacemaker plus another from Aug. 10 for a patient at risk of cardiac arrest who should have been seen sooner. Shortly thereafter, Langford sent two emails to the lead doctor and another clin- ic doctor stating she had been "firmly and rudely reprimanded" over the referrals and that she had previously pointed out there was a distribution of work problem. Hostile reaction When the hospital's director of medi- cal affairs returned from his vacation, he launched an investigation into the referrals incident. When he interviewed Langford, she interrupted him several times and at- tacked the doctor who had spoken with her about the referrals on Aug. 27. She didn't explain why the referrals hadn't been timely processed and refused to talk to that doctor. Shortly after the meeting, the director and the doctors decided to terminate Langford's employment over the referral issue, her be- haviour during the interview and towards the doctors, and the fact this happened so quickly after her suspension and warning that further misconduct would lead to ter- mination. e union grieved the dismissal, arguing the termination was an excessive reaction in the circumstances as Langford's reactions were affected by her stress at feeling over- worked and her issues with depression. e arbitrator noted that the clinic's policy on prioritizing patient referrals was not writ- ten or included in official training, but Lang- ford started working at the clinic in 2013 and was familiar with the practice. In particular, she should have known referrals were ur- gent since they usually involved patients with heart problems that needed attention in a timely manner — many referrals came directly from the emergency department. e delay in some of the referrals in August 2015 because Langford was behind — some referrals as long as two weeks old — delayed the clinic's ability to treat the patients, put- ting the responsibility to triage them on the on-call doctor and potentially endangering some patients. is was serious misconduct, the arbitrator said. e arbitrator also found that Langford's reaction when questioned about the de- lay — saying she was too busy didn't make sense since some of the referrals dated back much longer than that day, and she hadn't raised any issues with referrals to that point, despite being "not at all shy" about com- plaining about workplace issues — was also serious. ough Langford may have been stressed, she didn't provide an explanation and acted insubordinately when questioned by the on-call doctor and later at her investi- gation interview. In addition, the arbitrator found that the seriousness of Langford's misconduct wasn't undermined by the fact she wasn't immedi- ately suspended after the referrals incident. e on-call doctor quickly informed the di- rector of medical affairs, but the latter was on vacation at the time so no action was taken. Once the director returned, he immediately investigated the incident and the hospital's course of action was decided quickly, said the arbitrator. e arbitrator determined that the hos- pital had just cause for discharge, given Langford's pattern of "inappropriate and disrespectful behaviour" towards the ar- rhythmia clinic's doctors, the seriousness of the patient referrals delay, her failure to co- operate with the investigation, and her lack of remorse coming so soon after her disci- plinary suspension. e union's grievance was dismissed. For more information see: • Kingston Health Sciences Centre and CUPE (Langford), Local 1974, Re, 2018 Carswel- lOnt 9431 (Ont. Arb.). Worker was unrepentent for delayed referrals, citing too much work « from BEING BUSY on page 1

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