Canadian Employment Law Today

6 | September 14, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends to bruising and blood clotting. TS had been refusing his medications that day and Posada saw him in the late morn- ing lying in his bed "incontinent of urine and bowel movement," with feces smeared around the room. A couple of hours later, a cleaner asked Posada to come to TS' room to help. TS was still lying on his bed, not talking or moving. ere was feces everywhere in the room and Posada decided to try to "redirect" TS to get up for a shower or have a bed bath. A per- sonal care assistant (PCA) arrived to help, but they were unsuccessful. A second PCA arrived at TS' room and observed Posada trying to remove TS' pa- jama pants while his legs were going up and down. She got a shower chair while Posada continued to undress TS, and they stood TS up to put him in the shower chair. TS became more agitated once he was in the shower chair and, according to the sec- ond PCA, began "hitting out," "kicking out," and "spitting out," while yelling and scream- ing. Upon arriving in the shower room, TS tried to slide out of the chair. Posada and the first PCA were on either side of the chair and secured TS' arms with their own, moving him back into a seating position every time he tried to slide out. Once the shower was complete, TS calmed down and he was shaved and helped to his feet. However, TS couldn't stand and appeared to be exhausted from the experi- ence. Posada noticed TS had a cut on the small toe of his right foot, skin tears on his left arm and middle finger, and redness on both arms, his torso, and the back of his head. Posada treated the toe with a solution and a bandage. e second PCA took TS to the dining room for lunch in a wheelchair and Posada gave him his medications. TS' mood seemed to be good at this point and they wheeled him to his room and helped him into bed. Next shift wasn't prepared for resident's injuries Less than two hours later, Posada's shift had ended and the night shift RPN found TS on the floor beside his bed. TS was able to speak but couldn't stand. He was given a full assessment and, in addition to the injuries from before, the RPN found more weakness on TS' left side, bruising on his forearms and upper back, and the toe was still bleed- ing with the bandage having fallen off. TS' son-in-law was called and TS was sent to the hospital, where he was diagnosed with a hemorrhage in his head. Bendale Acres reported TS' injuries to the police and the Ministry of Health and Long- Term Care. e police interviewed Posada but no charges were laid. Bendale Acres conducted an internal in- vestigation, as it was concerned and TS' son- in-law was upset. Several employees, includ- ing Posada, were interviewed. In an investigative interview, Posada didn't acknowledge that TS was resisting or refusing care. Instead, he said TS engaged in "resistive behaviours" that didn't start until he was in the shower chair. He also didn't identify the fact that TS was on blood thin- ners and what the care plan for him was. Posada also provided a written statement that acknowledged TS was "highly agitated and resistive to care." He said he didn't com- plete an incident report because he felt the injuries were minor and not a threat to TS' health status. Bendale Acres determined that Posada's actions constituted resident abuse, as TS didn't want assistance and Posada forced him to come with him to have a shower. is was a violation of the residents' bill of rights under the Long Term Care Homes Act, 2007, and the resident care manual, which both stipulated a zero tolerance of resident abuse. e home also found Posada should have completed an incident report outlining TS' injuries so the next shift would be able to follow up on his condition. e city terminated Posada's employment on Sept. 19, 2014. e arbitrator found that TS was "a frail and elderly resident" with dementia and other ailments, placing him in a vulnerable position. Posada undressed him against his will, got him out of bed and took him to have a shower, even though he was protesting. As a result, TS received minor injuries and suf- fered from exhaustion, which contributed to his fall out of bed later that led to more serious injuries. It didn't matter that Posada characterized TS' actions as "resistive" rath- er than actually refusing, said the arbitrator. e arbitrator also found there was no malice in Posada's behaviour and he legiti- mately wanted to help, but Posada made the wrong decision. It was clear TS was saying "no," but Posada forced care on him that left him exhausted, unable to stand, bruised and bleeding. is was contrary to city policies of which Posada was aware, and constituted resident abuse. e arbitrator noted that it was city policy to complete an incident report "whenever a resident is involved in a harmful or poten- tially harmful incident," especially when there was "an appearance of any break in the skin, such as pressure sores, scratches, cuts, abrasions, skin tears, etc." Posada's explana- tion in the investigation that he didn't think it was necessary was contrary to the policy, and one of the PCAs who was interviewed agreed the circumstances called for such a report. e arbitrator determined that Posada's forcing of care on a protesting resident and his failure to take sufficient steps to ensure the resident would be monitored by the next shift was serious enough misconduct to war- rant dismissal. Posada was properly trained on procedures and policies and should have known how to approach the situation, said the arbitrator in dismissing the grievance. For more information see: • Toronto (City) and CUPE, Local 79 (Posa- da), Re, 2016 CarswellOnt 12702 (Ont. Arb.). Employer policy required report of any injuries « from NURSE on page 1 CREDIT: PHOTOGRAPHEE.EU/SHUTTERSTOCK

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