Canadian HR Reporter

CANADIAN HR REPORTER May 2, 2016 EMPLOYMENT LAW 5 ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS. With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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(prices subject to change without notice) Winnipeg nurse fi red after trying to hide restriction around treating patients Man not allowed to be alone with female patients following sexual assault charge A Manitoba arbitrator has reinstated a nurse who was fi red for failing to dis- close restrictions on his professional du- ties — but it also indicated the employer wasn't obligated to accommodate those restrictions. Tousif Ahmed was a registered nurse who worked in the emer- gency department at the Victoria General Hospital in Winnipeg, which is operated by the Winni- peg Regional Health Authority. Ahmed was hired in June 2011 as a casual health-care assistant and, after an unpaid educational leave, he was hired in July 2012 to be a night-shift nurse in the emer- gency department. He had no discipline on his re- cord and the hospital had no is- sues with his competency or pro- fessionalism as a nurse. In January 2014, a patient at the hospital complained Ahmed had touched her inappropriately during an examination. e hos- pital's safety co-ordinator was contacted, who then passed along the information to the director of human resources. They called a meeting with Ahmed on Jan. 31 to discuss the allegations. Ahmed was upset and denied the allegations, explaining how he had proceeded in examining the patient. However, his descrip- tion of what he had done wasn't completely consistent with the charting he had done at the time. e hospital interviewed the patient in question and deter- mined it was basically a "he said/ she said" situation, so it left it at that with no further action other than a recommendation that Ahmed improve his charting. On June 24, 2014, the director of the Manitoba Health, Healthy Living and Seniors Department, corporate services branch, sent a letter to the hospital advising that the sexual abuse allegations against Ahmed had been in- vestigated and concluded to be unfounded. Two days later, on June 26, Ahmed was scheduled to work the evening and night shifts in the emergency department. He called in before he started the evening shift to say he couldn't work that shift as he had lost his keys. He proceeded to work the night shift as scheduled. Nurse didn't reveal restriction e next day, the safety co-or- dinator received a call from the College of Registered Nurses of Manitoba (CRNM) informing him that a justice of the peace had issued a recognizance order on June 20 to Ahmed because he had been charged with sexual assault for the January incident. The recognizance order im- posed conditions on Ahmed, in- cluding that he could not be alone with any female patients while working as a nurse. The hospital placed Ahmed on paid leave until a meeting was held on July 3. At the meeting, the director of HR told Ahmed he was being terminated for breach of trust because he hadn't told the hospital of the conditions in the recognizance order. Ahmed had worked the night shift on June 26 while the order was in force and failed to give the hospital an op- portunity to safeguard patients, as well as exposing it to liability. Ahmed explained that his law- yer for the criminal charges had advised him not to disclose the order to his employer or the union and he could continue working, so he reported for work on June 26 and made sure he wasn't alone with any female patients. He said when he had attended upon a female patient, he had brought a housekeeper in with him, though he didn't tell the housekeeper about the order. But the hospital found no ref- erence to the housekeeper in Ahmed's charting, though there was a reference to a security guard assisting, which was unusual. When the hospital manage- ment asked what he would have done in a life-or-death situation with a female patient, Ahmed replied that he would "fi nd some- body else" to respond and it likely wouldn't be a problem because there were always nurses around to help. He emphasized that he hadn't caused any harm to the hospital and his plan for compliance with the recognizance order would be to ask for assistance when needed. However, the hospital told Ahmed he didn't have the au- thority to put in place a self- imposed condition in order to comply with the recognizance order and it couldn't be certain he complied with the condition without supervision. And by hiding the condition, he irrepa- rably breached the employment relationship. Ahmed was given a termination letter explaining the reason for termination was his failure to disclose the condition to the hospital. The hospital had considered a lengthy suspension instead of termination, but the breach of trust was considered too serious, along with the fact it didn't think Ahmed would be able to work in the emergency department with his restrictions as it couldn't con- trol the sex of the patients arriving and both male and female patients were often in the same room. Due to staffing demands, it wasn't feasible to have two nurses treating a patient at the same time, unless it was absolutely necessary. In addition, it was too diffi cult to structure a program in another department to ensure Ahmed wouldn't have contact with a fe- male patient alone, given staffi ng crunches, breaks, unexpected situations and the constant move- ment of nurses during a shift. Ahmed grieved the dismissal and in February 2015, the hospital proposed a settlement in which it would reinstate Ahmed with a 21- day suspension and place him on unpaid administrative leave until the sexual assault charge against him was resolved. If there was no conviction and all restrictions on him were lifted, he could return to work with the same position and status as be- fore but not in the emergency department. But the union rejected the set- tlement off er, saying Ahmed had made sure he complied with the recognizance order, the suspen- sion was excessive and he should be able to return to the emergency department if acquitted. Ahmed was later acquitted of the charge in a provincial court. e arbitrator noted that as a professional nurse, Ahmed was obliged to follow his profession's standards and code of ethics, and it was reasonable for the hospital to expect him to do so. e hospital made it clear in the termination letter that it dis- missed Ahmed for his failure to disclose the recognizance order and the condition it placed on him, and his proceeding with a plan to comply with the order on his own without hospital knowl- edge or consent. Ahmed denied the hospital the opportunity to protect itself and its patients and it had no way of knowing whether Ahmed actu- ally complied with the order. All of this provided just cause for dis- cipline, said the arbitrator. Employment relationship damaged but not broken While Ahmed's misconduct was serious and strained the employ- ment relationship, the relation- ship was not permanently broken, said the arbitrator, who consid- ered that Ahmed had no previous discipline during his three years as a nurse and the hospital didn't discipline him following the pa- tient's complaint and allowed him to continue to work. In addition, Ahmed didn't in- NURSE > pg. 17 Jeff rey Smith LEGAL VIEW Credit: FiledIMAGE (Shutterstock) A nurse at Victoria General Hospital in Winnipeg was reinstated after an arbitrator decided "his conduct constituted a serious error in judgment but it was not... committed with intent to disobey known obligations."

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