Canadian Labour Reporter

May 20, 2019

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a HAB Press business 2019 May 20, 2019 ARBITRATION AWARDS attached a pink sticky note on the appointment paper and included the names and numbers of two staff members who might be able to help them. "(The daughter) said the lady at the front desk was very abrupt and rude and told them that the times are as is and can't be changed (and) the sticker is there. She said her mother walked away in tears and was very upset," said Kulwant Virk, a booking clerk who was on duty at the same time. The patient and her daugh- ter were interviewed on Nov. 20 about the interaction. "She was loud, people stand- ing behind us. Quite loud. Forceful, just kept pushing and pushing when my daughter was saying thank you," said the patient, according to notes in the investigation report. The pink sticker and Kara's reminders about it were noted repeatedly as a source of irrita- tion by both the patient and her daughter. On Nov. 24, Kara was inter- viewed about the encounter. She said she tried to contact two su- pervisors to get the appointments sorted out but could not reach them. Kara then gave the appoint- ment paper to the patient and her daughter with the pink sticky note that said appointment times could be changed at any time. "I don't insist, I just state that we have this sticker just as a reminder. I don't go over and over and keep repeating, no. When you do that it would upset the (patient) more," said Kara in a summary report is- sued on Dec. 5. Five previous disciplinary ac- tions (including an eight-day sus- pension) were cited in Kara's ter- mination letter by the employer. "During your interactions with the patient and her daughter re- garding the time of the patient's next treatment, your conduct was inappropriate and unprofessional. They described it as 'upsetting,' 'abrupt,' 'forceful' and 'ruthless,'" said the letter of dismissal. The Alberta Union of Provin- cial Employees (AUPE) grieved the termination and argued that the patient and her daughter's testimony cannot be relied upon because they didn't testify at the hearing. Arbitrator Lyle Kanee agreed. "I have concluded that it would be unfair to rely upon the hearsay evidence of the patient and her daughter without giving the union the opportunity to cross-examine them. I have also found that there is otherwise insufficient evidence to find just cause for discipline of the grievor and, accordingly, the union's grievance is upheld." However, Kara's well-known behaviour was cited as a possible reason for a dismissal being suc- cessful in the future, said Kanee. "(Kara's) direct style of commu- nication has not served her well during the four years since she transferred into the RTD. It is also obvious from the testimony of her managers and her own testimony that she has little insight and does not accept that her style of com- munication is a concern or in need of improvement. If she returns to this position with this attitude, it may be that she will face discipline again and this decision will have only delayed a further reckoning. Perhaps another option would be worthy of consideration," said Kanee Reference: Alberta Health Services and Alberta Union of Provincial Employees. Lyle Kanee — arbitrator. Joel Michaud, Tessa Gregson for the employer. Angela Gill, Karen Thibault for the employee. May 1, 2019. On Sept. 4, 2016, a patient, identified as "MM" was placed in protective restraint by a nurse, identified as "KT." MM's mother complained about his treatment and Lee Mailman, unit manager, filed a complaint with the College of Registered Nurses of Nova Sco- tia about KT's actions that day. Later that year in October and November, MM's mother, identi- fied as "TM," made public accusa- tions against KT who filed a law- suit against MM for defamation. Investigator Darlene Mott launched a probe into the com- plaints about KT. On April 15, 2017, DH emailed Mott. "I had expected to be inter- viewed by now as I was directly involved in the situation but per- haps you are not aware of the background issues surrounding Mailman's claims. I have just re- ceived a cancer diagnosis and my surgery and treatment will begin shortly. I want to ensure you have my testimony and I would like to provide this information as soon as possible before I begin my can- cer treatments. (KT's) legal rep- resentative has informed me that I need to notify you directly with this request," said DH. Repeated attempts to meet with Mott were unsuccessful and DH wrote a letter that detailed the information. DH wanted it on the record before she went into sur- gery and she emailed it to Mott on April 21. After KT and TM's lawyers pre- pared the defamation cases, TM called Mailman on April 5, 2018, and said she believed that DH had revealed private information about her son, MM, that breached his confidentiality. A privacy officer for the hospi- tal advised TM on May 29 that an investigation found that DH did violate MM's privacy. The hospi- tal promised to investigate and on June 20, DH was suspended. DH was terminated on Oct. 16 for three separate breaches of confidentiality. "There is evidence to support that you shared similar information with another third- party legal counsel where there was a sworn affidavit," said the let- ter about the information shared with KT's lawyer. The Nova Scotia Government and General Employees Union (NSGEU) immediately grieved the decision. It argued that DH was well within her rights to dis- close the information about MM because it was in a "protected oc- casion." DH was providing infor- mation that would form a judicial proceeding and this provided her with immunity, said the NSGEU. The employer said that be- cause the statements didn't end up in court and the fact that DH reached out to Mott first meant she "insinuated" herself into the process and, therefore, didn't de- serve immunity. Arbitrator Augustus Richard- son disagreed. "I am satisfied and so rule and direct that the em- ployer was not and is not entitled to use or rely upon the three 'state- ments' listed in its termination letter as grounds justifying any kind of discipline. The statements were made and given in a context that created for DH an absolute immunity, notwithstanding that they might have breached patient confidentiality — and notwith- standing that had the disclosure been made under different cir- cumstances, unconnected with any judicial or quasi-judicial pro- ceedings, it might well have been subject to discipline." However, the grievance was not dismissed, said Richardson, and it's up to the employer to de- cide on whether to continue with termination. "The employer may have had other grounds for disci- pline (disclosed or not in the ter- mination letter). But it does mean that in seeking to meet the onus on it of establishing just cause for discipline, up to and including termination, the employer cannot rely upon the three statements, their contents or the fact that they were made, even if their contents breached patient confidentiality. Other grounds must be provided and relied upon." Reference: Nova Scotia Health Authority and Nova Scotia Government and General Employees Union. Augustus Rich- ardson — arbitrator. Gary Rankin for the employer. David Wallbridge, George Franklin for the employee. April 15, 2019. 3 'statements' not suitable grounds for dismissal: Arbitrator < Confidentiality pg. 1 < Communication pg. 1 Pink sticky note cited as source of irritation by patient

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