Canadian HR Reporter

CANADIAN HR REPORTER AUGUST 2019 EMPLOYMENT LAW 5 Charged with sexual assault of patient, B.C. X-ray tech suspended without pay Suspension appropriate even before resolution of legal proceedings: arbitrator BY JEFFREY R. SMITH Health-care organizations must hold a high standard of conduct for employees due to the trust the public holds in them and the vulnerability of the patients they treat. at's a big reason why an arbi- trator determined the Vancou- ver Coastal Health Authority (VCHA) was justifi ed in suspend- ing an X-ray technologist without pay — after police charged him with the sexual assault of patients — due to the risk to its reputation and the seriousness of the charges. In June 2016, the VCHA was made aware the RCMP was in- vestigating the sexual assault of a patient at one of its hospitals. e suspect was a 57-year-old X-ray technologist with nearly 30 years of service. e VCHA didn't re- ceive any details, but it launched an internal investigation to learn more about the circumstances. It asked the worker to co-operate in the VCHA's investigation, but the worker declined on the advice of his lawyer, since the police inves- tigation was ongoing. e VCHA decided to imple- ment a safety plan that involved reassigning the worker to non- patient care duties at a diff erent hospital. 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 commute to the second hospital. e special project work was below the worker's expertise lev- el, but it was the only appropri- ate work available — the VCHA described it as a "make-work" project to allow the staff er to con- tinue working while the police investigation was going on, while keeping him away from vulner- able patients. e project often involved du- ties that others were already per- forming, and assignments were given to him a little bit at a time. It eventually became obvious to oth- er employees that something was up, since the tasks the worker was completing were not special proj- ect work and weren't meaningful. In November 2017, the RCMP informed the VCHA the worker had been charged with three counts of sexual assault involving three diff erent patients on three occasions in 1990, 1997 and 2001. At this point, the VCHA was concerned about the public fi nd- ing out about the charges, the se- riousness 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. He continued to be covered by the VCHA's benefi ts. e union grieved the suspen- sion, arguing that an unpaid sus- pension pending the outcome of the criminal proceedings was un- fair. It said the VCHA was a large organization that could aff ord to pay the worker if it didn't want him in the workplace, and holding the worker out of service without pay was risk-free for the VCHA. e arbitrator noted that the Supreme Court of Canada had established that work was a fun- damental aspect in a person's life and it was important for people to contribute in their jobs. On the other hand, 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 reasonable to hold the employee out of service." ough the VCHA continued to allow the worker to perform al- ternate duties while police were in- vestigating, once charges were laid, the situation became more serious regarding his presence in the hos- pital and the VCHA's reputation. e suspension was reasonable to protect the VCHA's reputation and patients, said the arbitrator. As for whether the suspension should be paid or unpaid, while the VCHA was a large organiza- tion that could aff ord to pay the worker's salary while on suspen- sion — essentially making it an administrative leave until the legal proceedings were resolved — "it would be at substantial risk of causing serious damage to its reputation," said the arbitrator. As an X-ray technologist, the worker worked mostly indepen- dently and with often-vulnerable patients. The charges involved were related to patients and the worker's job duties, and they raised serious concerns about trust, according to the arbitrator: " ere can be few, if any, off ences more serious than a health-care worker committing an act of sex- ual assault on a patient." As a result, the arbitrator also determined it was reasonable for the suspension to be unpaid, not- ing that once the criminal matter was resolved, the VCHA had the right to conduct its own investi- gation and determine appropriate discipline. For more information, see: • Vancouver Coastal Health Au- thority and HAS (BJ), Re (2018), 291 L.A.C. (4 th ) 391 (B.C. Arb.). Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www. employmentlawtoday.com. Jeff rey Smith Legal View

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