Canadian Employment Law Today

CREDIT: TASHATUVANGO/SHUTTERSTOCK to the emergency department if acquitted of the charge. Ahmed was later acquitted of the sexual assault charge in a provincial court. e arbitrator noted that as a profes - sional nurse, Ahmed was obliged to follow his profession's standards and code of eth- ics, 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 plan to comply with the order on his own without hospital knowledge or consent. Ahmed denied the hospital the opportunity to protect itself and its patients and it had no way of know - ing whether Ahmed actually complied with the order. All of this provided just cause for discipline, said the arbitrator. Employment relationship damaged but not broken While Ahmed's misconduct was serious and strained the employment relation- ship, the arbitrator found the relationship was not permanently broken. e arbitra- tor considered that Ahmed had no previ- ous discipline during his three years as a nurse and the hospital didn't discipline him following the patient's complaint, al- lowing him to continue to work. In addi- tion, Ahmed didn't intend to deceive the hospital, but made a bad decision in fol- lowing the advice of his criminal lawyer rather than talk to the safety co-ordinator — who had an "open-door" policy — or consult an employment lawyer. "All this suggests that his misconduct was not wilful, in the sense of a nurse who delib- erately disobeys known rules or knowingly administers medication without authoriza- tion to a person who was not a patient," said the arbitrator. "Rather his conduct consti- tuted a serious error in judgment, but it was not an error that was committed with intent to disobey known obligations." e arbitrator pointed to the fact that the hospital was willing to have Ahmed re - turn to work when it offered the settlement proposal, which further demonstrated the employment relationship wasn't damaged beyond repair. As a result, the hospital was ordered to reinstate Ahmed with a 21-day suspension in place of dismissal. However, the arbitrator recognized the difficulty the hospital would have finding a position for Ahmed while he was still re - stricted from being alone with female pa- tients. e evidence showed the hospital did consider whether it could accommo- date Ahmed's restriction before dismissing him, but determined it just wasn't feasible as the CRNM condition would apply even if the hospital had initially suspended Ahmed instead of dismissing him. As a result, the arbitrator didn't impose any financial obligation on the hospital for dismissing Ahmed as there was no evidence of any lost income since he couldn't work anyway. Instead, the hospital could keep Ahmed on administrative leave until the condition was lifted, at which point the hos - pital must return him to his position in the emergency department. For more information see: • Winnipeg Regional Health Authority and MNU (Ahmed), Re, 2016 CarswellMan 90 (Man. Arb.). Canadian HR Reporter, a Thomson Reuters business 2016 April 27, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information.

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