Canadian Employment Law Today

July 17, 2019

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

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 ©2019 HAB Press, a subsidiary of Key Media All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechani- cal, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE HAB PRESS, A SUBSIDIARY OF KEY MEDIA 312 Adelaide Street West Suite 800, Toronto, ON M5V 1R2 President: Tim Duce Editor: Jeffrey R. Smith Email: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. X-ray tech suspended after criminal charges laid THIS INSTALMENT of You Make the Call involves an X-ray technologist who challenged his suspension after criminal charges against him were laid. In June 2016, the Vancouver Coastal Health Authority (VCHA) was made aware that the RCMP was investigating the sexual assault of a patient at one of its hospitals. e alleged perpetrator was a then-57-year- old X-ray technologist at the hospital with nearly 30 years of service. e VCHA didn't receive any details, but it launched an inter- nal investigation. It asked the worker to co- operate in the investigation, but the worker declined on the advice of his lawyer, since the police investigation was ongoing. e VCHA decided to implement a safety plan that involved reassigning the worker to non-patient care duties at a diff erent hos- pital. e worker went along with the plan and proceeded to perform "special project" work for the next 18 months. In addition to receiving his regular pay, he was reimbursed for expenses incurred from the longer com- mute to the second hospital. e special project work was below the worker's expertise level, but it was the only appropriate work available — the VCHA it- self described it as a "make work" project to allow the worker to continue working while the police investigation was going on. It of- ten involved duties that others were doing and was given to him a little bit at a time. It eventually became obvious to other employ- ees that something was up, since the work the worker was doing was not actually spe- cial project work and it wasn't meaningful. In November 2017, the RCMP informed the VCHA that the worker had been charged with three counts of sexual assault involving three diff erent patients, on three occasions in 1990, 1997, and 2001. e VCHA was given no other information on the identity of the patients. At this point, the VCHA was concerned about the public fi nding out about the charg- es, the seriousness of the off ences, and the trust issues they raised — as well as the fact the duties the worker was performing had little value. It decided to suspend the worker without pay pending the outcome of the criminal proceedings. ough receiving no pay while on suspension, he continued to be covered by the VCHA's benefi ts. e union grieved the suspension. Emplo y ment Law Today Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Was the suspension appropriate? OR Should the worker not have been suspended? The worker was assigned to non- patient-care duties during police investigation then suspended when charges were laid. IF YOU SAID the suspension was appropri- ate, you're right. e arbitrator noted that the Supreme Court of Canada had estab- lished that work was a fundamental aspect in a person's life and it was important for people to contribute. However, she noted that if "it is impossible to fi nd alternate work in light of the nature of both the workplace and the crimes charged, it may well be rea- sonable to hold the employee out of service." ough the VCHA continued to allow the worker to work while police were investigat- ing, once charges were laid things were more serious when it came to the worker's pres- ence in the hospital and the potential harm to the VCHA's reputation — the laying of criminal charges can be found by anyone on the Internet, the arbitrator said. e arbitrator determined that the sus- pension was reasonable and appropriate. As for whether the suspension should be paid or unpaid, she noted that while the VCHA was a large organization that could aff ord to pay the worker's salary while on suspen- sion without too much trouble — essen- tially making it an administrative leave — "it would be at substantial risk of causing seri- ous damage to its reputation." As an X-ray technologist, the worker worked mostly independently and with often-vulnerable patients. e charges and patients involved raised serious concerns about trust, the ar- bitrator said. " ere can be few if any off ences more se- rious than a health care worker committing an act of sexual assault on a patient," said the arbitrator. As a result, the arbitrator also determined it was reasonable for the suspension to be unpaid, noting that once the criminal mat- ter was resolved the VCHA had the right to conduct its own investigation and determine appropriate discipline. For more information see: • Vancouver Coastal Health Authority and HAS (BJ), Re (2018), 291 L.A.C. (4 th ) 391 (B.C. Arb.).

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