Canadian Employment Law Today

Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends Health-care worker fired for dirty joke Breach of employer policy and public trust, along with disciplinary history provided just cause for dismissal BY JEFFREY R. SMITH THE DISMISSAL of a Newfoundland and Labrador health-care worker for trying to get a long-term care resident to participate in a dirty joke has been upheld by an arbitrator. e worker was employed as a licensed practical nurse (LPN) and personal care at- tendant (PCA) at the Carbonear Long Term Care Centre operated by Eastern Health, the largest integrated health organization in Newfoundland and Labrador. She joined Eastern Health in 2009 as a permanent part- time employee and was licensed by the Col- lege of Licensed Practical Nurses of New- foundland and Labrador. Eastern Health's collective agreement with its union specified that "adverse re- ports" — written records of dissatisfaction with someone's work performance — could not be used against an employee after 18 months without another instance of warn- ing or reprimand elapsed. In June 2017, the worker was cited for not following proper procedure and an report was placed in her file. ree months later she was suspended for four months for mul- tiple incidents including inappropriate com- ments to people visiting residents, recording wrong information about a patient, delaying resident treatment, using social media to post information and threats towards co- workers, and talking about residents openly in public. In addition to her suspension, Eastern Health reported the incidents to the College of Licensed Practical Nurses. e worker said the comments were in- tended as jokes and in one case she knew the family members. She also said in the investi- gation that "just because they were offended by her comments does not mean that they were right in their conclusion." e union reached a settlement with East- ern Health that reduced the suspension to three months and required the worker to review several documents on professional practice consultant nursing. e worker re- turned to work near the end of 2017 under conditions that she be assigned day shifts to ensure close monitoring and co-signed for two shifts with a senior licensed practical nurse and an observation assessment by a clinical education before returning to inde- pendent work. Vulgar joke with resident and colleague Not long after the worker returned to work, on Jan. 9, 2018, was providing care for a resi- dent (referred to as R) who had a cognitive disability due to an illness and stroke. R was known to use curse words frequently, par- ticularly when she was upset, and could be both verbally and physically aggressive. e worker called another PCA into R's room to help wash her and, according to the other PCA, leaned over to R and said to ask her "if she likes sucking clean c---." R didn't say anything and looked shocked, but the work- er then said "no, she's a dirty c--------r." e worker told the other PCA that the com- ment was a joke she had heard at a party, but the other PCA said it was in poor taste and inappropriate. Later, R called the other PCA into her room and said "I would never say that." e other PCA reported the incident to the resi- dent care manager and, one week later, also told the HR consultant about it in a meeting. She also noted she didn't feel the comment was made in a mean way, realized it was a joke and it didn't offend her, but it was inap- propriate and caused her "a lot of stress." Eastern Health investigated, including an interview with the other PCA who was up- set and emotional, but said she was "100 per cent certain" about her statement. e worker denied that she had told the resident to call her colleague profane names and said she had only repeated profanities R had said to them when they were trying to wash her, telling R she "can't be calling her that stuff." e worker also said the other PCA had used a movement to lift R into her wheelchair that wasn't allowed and later that day didn't see anyone on the floor who was upset. e manager and HR consultant noted the worker didn't seem surprised at the interview and didn't acknowledge any wrongdoing. At the investigation interview, manage- ment didn't tell the worker who had reported the incident, but told her another staff mem- ber had poked her head around the curtain in R's room and the worker got the resident to call her "c--------r." Eastern Health determined that the worker's comments were unethical, violated its resident-centred approach to care, and caused the organization to lose respect from R's family. Since the incident happened only three weeks after the worker returned to work from her suspension for similar behav- iour, management felt it would further hurt Eastern Health's reputation if the worker was allowed to continue her employment. On Jan. 17, 2018, the worker's employment was terminated. Eastern Health also notified the nurses' college about the worker's mis- conduct. e union grieved the termination on the worker's behalf, arguing dismissal was excessive since the worker had nine years of service, and the termination was based on an accusation by a colleague who had said she realized the worker was joking. e worker reached a settlement with the nurses' college in June 2018 in which the worker's LPN licence was suspended for two months and she was required to complete certain courses before being reinstated. Colleague's version credible e arbitrator found that the colleague's description of the Jan. 9, 2018, incident was "more probable" than the worker's version. e colleague's account of events was con- sistent with other witnesses, the resident R, and her reaction at the time. In addition, the colleague had no reason to falsify matters — there was no evidence of poor relations between her and the worker and she wasn't affected by the outcome of the matter. e worker's description of events relied on the prior use of vulgar language by R — not proof on its own — and was mostly contra- dictory to that of her colleague, R, and other witnesses, said the arbitrator in finding the incident happened as the colleague report- ed and Eastern Health stated in the letter of termination. e arbitrator noted that Eastern Health had a policy of resident-centred care and health-care employees in a residential care setting had a high bar of trust and tolerance. Long-term care residences often have resi- dents who can exhibit behaviour "that would tax the patience and self-control of the most considerate caregiver," but those residents are usually vulnerable. If employees can't show high levels of self-control and proper conduct, it can be just cause for dismissal. e arbitrator found that while the worker had a good length of service with Eastern Health and may not have intended to harm the resident or her colleague, she seriously breached the organization's policy. e in- cident could be considered "a single, brief event" involving only the worker, her col- league, and the resident R, but any involve- ment of a resident was serious — R was upset by the incident and her family lost trust in Eastern Health when they heard of it. In ad- dition, the worker had a disciplinary history related to similar misconduct and had only been back at work for three weeks following a previous suspension. Similar misconduct in a short period of time was an aggravating factor, said the arbitrator. e arbitrator dismissed the grievance and upheld the worker's dismissal. For more information see: • NAPE and Eastern Health (Noseworthy), Re, 2019 CarswellNfld 198 (N.L. Arb.).

• Cover