Canadian Labour Reporter

November 30, 2020

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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other attendant while they were washing her and the other atten- dant raised her hand and brought it down in what appeared to be a slap. After the incident, Smykal- ski turned off the lights and TV, leaving the resident in darkness. The footage also showed an- other occasion where Smykalski got shampoo in the resident's eye while washing her hair roughly, but not apologizing. The resident's daughter noti- fied the nurse in charge and St. Michael's launched an investiga- tion. The director of resident care spoke to the resident, who didn't appear to be in distress but had faint bruises on her arms. She met with the resident's daughter and granddaughter, who showed her the video clips. Then she met with Smykalski, who was shocked when she was told about the video footage and that she was under investigation. Smykalski said that she didn't do anything wrong: she had done her job and the resident was safe. She apologized for allowing the shampoo to get into the resi- dent's eye but denied seeing any resident abuse that should be re- ported. She also said she had left the door to the lit hallway open af- ter turning off the TV and lights, which was standard practice. Smykalski and a union repre- sentative met with the HR direc- tor and the care manager the next day, Oct. 5, and they terminated her employment for cause. The termination letter cited "serious abusive behaviour, serious physi- cal harm, rough handling and serious emotional harm." It also said that her failure to intervene with or report the other atten- dant's abuse of the resident was a violation of St. Michael's zero- tolerance abuse policy. The other attendant was also dismissed. The arbitration board noted that the other attendant's alleged slap of the resident "occurred in a fraction of a second" while Smykalski was involved in clean- ing and changing the resident, and even the video didn't show an actual slap. Her claim that she didn't see a slap was credible, said the board. The board also found that the evidence supported Smykalski assertion that she turned off the TV and lights in the resident's room, because she thought she needed rest — it was evening and the resident had just been through a physically difficult procedure. The resident had dementia, was a falls risk and Smykalski made a reasonable as- sessment that she needed peace and quiet, said the board, adding that the poor quality of the video wouldn't show if the door was left open. The board determined that Smykalski didn't abuse the resi- dent and didn't witness any abu- sive conduct by her colleague. The shampoo in the eye was ac- cidental, and while the resident's daughter may have felt Smykalski treated her in an uncaring way, that was not the same as abuse, said the board. The board found there was no cause for discipline and left it to the parties to determine the de- tails of reinstatement and com- pensation. Reference: St. Michael's Long Term Care Centre and AUPE, Local 47. Robert Abells — chair. Craig Newman, for employer. Jeff Jesse for employee. Nov. 2, 2020. 2020 CarswellAlta 2067 Family watched video of 'uncaring' treatment, not abuse Worker denied making remarks but complaint supported opinion with one of the other EAs, Trisha Sophusson, about how much the student was pushed to do on her own. Before Mensah could finish speaking, Sophusson spoke over her in a raised voice. Mensah suggested that it would be good if they were "all on the same page," but So- phusson responded by saying: "I don't like you. You have no idea who those people are." The third EA and the teacher left, but Mensah and Sophusson continued to argue. Sophusson commented about how high the bar was and gestured that Men- sah's was low. Mensah said they needed to have a level of respect for each other, but Sophusson said she didn't have to respect her because, "I am a mother and a tax- payer." Mensah felt this comment stig- matized her and made her feel like she didn't belong. She asked, "And I am not a mother and a tax- payer?" to which Sophusson re- plied, "At least I am from here." Mensah felt the comment re- lated to her race and ethnicity. She tried to apologize to bring things back to a professional level, but Sophusson called Mensah unprofessional for talk- ing with hand gestures, which Mensah also felt was an attempt to degrade her cultural back- ground as it was common for people of her ethnicity to talk with their hands. Two days later, Mensah filed a complaint with the school district board claiming Sophusson had verbally attacked her based on her race and her comments were a "personal dig at her character." She added that she had been open about mental health issues she had had and Sophusson's com- ments were "a low blow." The school district investigat- ed and on April 6 issued a writ- ten reprimand to Sophusson for speaking in an "inappropriate, angry tone" to her coworker, making "inappropriate and un- necessary comments" that esca- lated the conflict between them, pointing and gesturing towards her coworker, and making a com- ment based on her coworker's racial and ethnic background. The reprimand stated that So- phusson's behaviour "constitutes harassment and discrimination" and further incidents could re- sult in "a more severe disciplin- ary response, up to and including termination." Sophusson denied she made the comment related to Mensah's race and ethnicity or gestured in- appropriately during the meeting and the union grieved the rep- rimand, noting that Mensah ac- cepted no responsibility for her part in the argument. The arbitrator found that there was no evidence Mensah "was motivated to invent a false accusation" against Sophusson — they apparently had a friendly relationship previously, though Sophusson tried to downplay that. Mensah's complaint and account of the incident were straightforward and consistent. In addition, there was evidence Mensah experienced anxiety af- terwards. As for Sophusson's ac- count of the incident, the arbitra- tor characterized it as self-serving and inconsistent. The arbitrator also disagreed with the union's argument that Mensah didn't accept any respon- sibility for her role in the matter, as Mensah acknowledged that she tried to apologize for letting things deteriorate and remained focused on the purpose of the dis- cussion — the term goals for the student. "The evidence establishes that it was [Sophusson], not Mensah, who levelled the insults; it was she who passed judgment, as she had done with others of her co- workers, not Mensah," said the arbitrator in upholding the writ- ten reprimand and dismissing the grievance. Reference: School District No. 43 and CUPE, Local 561. Joanie McEwan — arbitrator. David Woolias, Warren Woodhurst for employer. Susanna Quail for employee. Oct. 23, 2020. 2020 CarswellBC 2757.

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