Canadian Employment Law Today

May 29, 2013

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.

Issue link:

Contents of this Issue


Page 7 of 7

CELT May 29 2013:celt 467.qxd 13-05-15 4:34 PM Page 8 May 29, 2013 Hospital pulls plug on disappearing porter THIS INSTALMENT of You Make the Call features a hospital porter who kept disappearing after helping with autopsies. William Moody, 57, was morgue attendant at the Victoria Union Hospital in Prince Albert, Sask. Hired in March 2006, he worked on a casual basis assisting with autopsies in the hospital lab. A few months later, Moody bid on and won a casual/relief position as a porter in the hospital's emergency department (ER). He intended for the ER position as a side job to help support his family. In the summer of 2009, the nursing unit manager in the ER established a Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. 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, mechanical, 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 8 scheduler that he was off that day and he hadn't seen the calendar when he worked the day before — though he was surprised because he usually worked Tuesdays. How would you handle this case? Read the facts and see if the judge agrees process where Moody was to provide notice that he was leaving to assist with an autopsy in the lab. Previously, he didn't inform the manager when he left. On two occasions in August and September 2009, Moody didn't give notice when he left before the end of his shift to go to the lab. He was given a written reprimand indicating further incidents could lead to further discipline, up to and including dismissal. In January 2011, the manager asked the pathology department to notify her directly when Moody was needed for an autopsy. He was always allowed to go, despite the fact his absence added to the workload of the nurses in the ER. The manager told Moody multiple times that if he was called to the lab and finished there before his ER shift was over, he was to return and finish his shift. On Jan. 27, 2011, Moody went to the lab for an autopsy. When the ER heard the autopsy was over, staff looked for Moody to return but he didn't show up. Moody later said he didn't understand he was to return and thought he was done work for the day, since the pathologist had told him he was done and could leave. Moody was suspended for two days and warned another incident could lead to discipline and possibly dismissal. On March 3, Moody once again failed to return to the ER to finish his shift after an autopsy. Moody claimed it was a misunderstanding, but he was suspended for three days with another warning. On Aug. 2, Moody didn't show up for a shift in the ER, but worked in the lab . His employment as an ER porter was terminated and Moody grieved the dismissal, saying he didn't know he was scheduled to work that day. He said he had been told a few days earlier by a You make the call ✓ ❑ Was Moody's absence culpable and warranting dismissal? OR ✓ ❑ Should the hospital not have dismissed him? IF YOU SAID dismissal was appropriate, you're right. The arbitrator noted absenteeism could be innocent or culpable. Though Moody argued his Aug. 2 absence was innocent because he was told he wasn't scheduled to work, he should have known his call to the scheduling department wasn't the final say. He worked on Aug. 1 and should have checked the schedule in the ER, which was the official schedule, especially since he had been disciplined more than once for being absent, said the arbitrator. "There is no reason why someone who ought to be interested in attending work and in not missing work, and who was surprised that he was not scheduled to work on a day it was unusual to skip, would not have investigated further," said the arbitrator. The arbitrator found Moody was "quick to blame everyone but himself" for his absences, noting that his earlier grievance blamed "miscommunication" with scheduling but put the fault completely at scheduling's feet. But he also later said he thought he could leave after the autopsy was done. The arbitrator found Moody's absenteeism was culpable and he should have made more effort to find out if he was working, particularly given his disciplinary history. Since he had been disciplined for similar misconduct on multiple occasions, termination was suitable for missing his Aug. 2, 2011, shift. See Prince Albert Parkland Health Region and CUPE, Local 4777 (Moody), Re, 2013 CarswellSask 133 (Sask. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Employment Law Today - May 29, 2013