Canadian Employment Law Today

6 | August 14, 2019 Cases and Trends Canadian HR Reporter, 2019 stress disorder (PTSD) — leading to an even- tual diagnosis of the condition. He went off work for several months on workers' com- pensation benefits and was able to return after treatment. However, the symptoms returned in Feb- ruary 2016 after Pinell attended a scene in which several teenagers were killed in a nighttime luge run at Calgary Olympic Park. Pinell once again had to take time off work while receiving workers' compensa- tion benefits, but he was able to return after a shorter absence. In the early morning hours of April 18, 2016, Pinell and his partner were dispatched to a facility for people with addictions and mental illness where they found a woman with a deep cut on her face but able to stand. ey put her on a stretcher and into the am- bulance, but as they treated her she became more agitated and unpredictable. e patient started thrashing and shout- ing, so the two paramedics used soft cloth restraints to tie her hands and feet to the stretcher frame. After this, the patient start- ed making noises like she was going to spit, so they tried to put on a "spit sock" — a hood that fits over the patient's head to protect the paramedics from spitting. However, the patient violently resisted their attempts, so they opted to sedate her. Before they could sedate the patient, she spat a mouthful of saliva and blood directly at Pinell's head, so it struck him in the chest and face, as well as the ceiling and walls of the ambulance. Pinell's partner saw Pinell imme- diately draw back his right arm a short dis- tance and strike the patient on the left cheek with a closed fist, creating a sound consistent with a blow to the face. At the same time, the partner yelled at the patient to stop and the patient said something about Pinell hitting her. According to the partner, Pinell then said, "I can't stand patients who spit" and left the ambulance. Two police officers entered and helped the partner restrain the patient while they put on the spit sock and adminis- tered the sedative. As they got ready to drive to the hospital, Pinell said to his partner, "I hope you have a short memory." Post-incident report After they arrived at the hospital and handed the patient off to emergency room person- nel, Pinell's partner reported the incident to the supervisor on duty and Pinell texted the supervisor saying they needed to talk. Pinell then filled out the patient care record, in which he said he pushed the patient's face away with a closed hand and held it until the police officers came in to assists. Pinell later testified that he felt nervous about how the incident might look to management. As he was writing the patient care record, another paramedic came by and asked how he was doing. Pinell told him a patient had spit blood in his face, he had hit the patient in response and that he believed his partner was upset about it. Pinell later testified that he said he had "impacted" the patient. After discussing the incident with Pinell, the supervisor completed a post-incident report that stated Pinell "punched the pa- tient in the face with a closed fist, striking the patient on the left cheek," which Pinell's partner witnessed. e supervisor noted Pinell "demonstrated remarkable candid- ness and transparency" in direct discussion during which Pinell had described his action as a short jab, though less so on the patient care report that stated he had merely pushed away the patient's face with his hand. AHS investigated the incident, reviewing the reports and interviewing both Pinell and his partner. It tried to interview the patient, but she was unco-operative and didn't make a complaint. ere was also no apparent injury. Pinell first characterized the contact as pushing away the patient's face, as he did in the patient care record. When confronted with his report to the supervisor that he struck the patient in the face, Pinell then said he had lost his balance in the ambulance and fell into the patient. In May 2016, Pinell went on medical leave due to PTSD symptoms and he said he had probably returned to work too early. AHS was unaware that Pinell was suffering from PTSD due to its privacy policy regarding medical absence, but it continued with the investigation. It concluded Pinell's account that he slipped and fell into the patient to be not plausible based on a re-creation and the evidence of other witnesses. Management met with Pinell on Sept. 6 and he reaffirmed his version that he lost his balance, though he disclosed his PTSD and said it may have affected his recall. He said he was still in treatment but was fit to work, but he also became argumentative and threatened to go to the media if AHS didn't support him. Just-cause termination e investigation continued and a final re- port was completed on Oct. 25. It consid- ered Pinell's relatively short service, the na- ture of the assault, Pinell's initial description that tried to downplay the assault and his lack of remorse that AHS felt was an attempt to mislead the investigation. e conclusion was that Pinell had committed patient as- sault and should be dismissed. Since there was no medical evidence that Pinell's PTSD was connected to the misconduct or Pinell's memory of it, AHS terminated Pinell's em- ployment on Nov. 1 for intentional assault of a patient. AHS stated that its trust in his ability to safely perform his duties was de- stroyed, public confidence in AHS was un- dermined and the employment relationship was irreparably damaged. e arbitrator noted that Pinell's part- ner was consistent and unwavering in his account of the incident and he had no mo- tivation to lie about it, while Pinell's story changed and he had a high amount of self- interest in the outcome. In addition, Pinell's claim that he slipped and fell didn't make a lot of sense, as the ambulance wasn't moving and there wasn't anything on the floor to slip on. Also, if he had fallen, his partner would have seen or heard it happen and Pinell would have said something. Instead, Pinell made a comment that he couldn't stand pa- tients who spit — a comment consistent with just having hit the patient rather than follow- ing a fall and accidental contact. Bringing in that explanation late in the investigation was an attempt at self-preservation and to mis- lead the investigation, said the arbitrator. e arbitrator acknowledged that there was an element of self-defence to consider as the patient provoked Pinell by spitting on his chest and face and he couldn't have just left his partner with the patient when the latter was acting out. However, the fact that the action was a quick, jabbing blow to the face rather than a push and hold of the pa- tient's face away indicated the purpose was to punish the patient for spitting rather than protecting Pinell or his partner. Pinell's com- ments afterwards about patients who spit and hoping his partner had a short memory also supported the idea that it was intention- al, said the arbitrator. e arbitrator considered that Pinell was put in a difficult position — "in an enclosed space, with a syringe in one hand, facing a restrained but enraged, probably intoxicated and violently unco-operative patient who has just blown a mouthful of blood and saliva at him." However, paramedics operated in a reality where such patients are unfortunately common, and first responders have a high standard of conduct to protect patients and be truthful about their responses to provo- cation. Pinell failed to meet these standards, the arbitrator said. As for Pinell's PTSD, the arbitrator noted that Pinell didn't claim his symptoms played a role in the incident, just that they could have affected his memory of it. ere was also no medical evidence linking Pinell's PTSD to his misconduct, so it wasn't a miti- gating factor. e arbitrator determined that AHS had just cause to terminate Pinell's employment. For more information see: • HSAA and Alberta Health Services, Re April 12, 2019), J. Leslie Wallace - Chair (Alta. Arb.). « from ASSAULT on page 1 Paramedic initially reported he pushed patient's face away with fist

• Cover