Canadian Employment Law Today

June 21, 2017

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.

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©2017 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. GST #897176350 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: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was there just cause for dismissal? OR Was there insuffi cient cause for dismissal? IF YOU SAID there was insuffi cient cause for dismissal, you're correct. e board found that in the incident Hillside used as a culminating incident, Beck was in "a de- manding position on a demanding shift" with many things requiring her attention. ough Hillside policy didn't require a doctor's approval to send a resident to the hospital, Beck and other employees weren't aware of it. In addition, the resident's health wasn't aff ected by his not being hospital- ized. It wasn't enough to justify termination of a 22-year employee with a good perfor- mance record, said the board. As for Beck's disciplinary history, it had more to do with Beck's relations with other staff than her handling of resident care and their families and therefore unrelated to the culminating incident, said the board. e board also found that when Hill- side asked Beck to retract her resignation a year earlier, it essentially implied that prior conduct would not be used against her. It also damaged her future job prospects, as leaving because of a voluntary resignation would be much better on her record than being terminated for cause. ough Beck was a 22-year employee, the board took into consideration that she resigned and came back with a clean slate, so her reasonable notice period should re- fl ect that. Hillside was ordered to pay Beck the equivalent of nine months' notice for wrongful dismissal. See Beck and Hillside Pines Home for Special Care Society, Re, 2016 CarswellNS 410 (N.S. Lab. Bd.). Embattled RN has too many disputes THIS INSTALMENT of You Make the Call features a registered nurse who was fi red for poor behaviour at work. Nida Beck is a registered nurse who worked for Hillside Pines Home for Special Care in Bridgewater, N.S., starting in 1992. Beck was considered good at her job, except for some issues with getting along with oth- er employees at Hillside. A 2001 performance evaluation gave her a negative review of her interaction with staff and listening skills. Beck responded that she was hurt by the comments and would think about how she could improve. Over the next few years, Hillside contin- ued to receive complaints from staff about her moodiness and confl icts with employ- ees in positions beneath her. When this was addressed in her performance evaluations, Beck apologized but also tried to justify and explain why she acted in that way. She said she had "also been hurt myself " and claimed other employees made "insensitive and de- rogatory gestures" and comments and she "could no longer tolerate it." She was also frustrated with increasing workloads. Beck also felt frustrated from working on the night shift at Hillside, as she was the only registered nurse on duty, there was no administrative or housekeeping staff around, and patients with dementia or cog- nitive impairment often were more diffi cult at night. She was responsible for everything at Hillside overnight, including fi nding re- placements for staff who called in sick. Hillside had Beck attend workshops on interactions with co-workers, but it wasn't satisfi ed with her improvement. On Jan. 15, 2013, Beck was suspended for three days without pay following three incidents: • Beck told a volunteer without proper footwear to go home without giving her a chance to explain she had some in her car. Beck was told she should have spoken to the volunteer "privately and respectfully." • Beck told a staff member who was asked to come home immediately because of urgent medical test results that they were short- staff ed. Beck was told she should apologize for not making the staff member "feel cared for at a time when she needed that." • Beck failed to follow Hillside policies on reporting work-related injuries. A month after the suspension, Beck had an incident with a staff member over a resi- dent's missing medication. e staff mem- ber fi led a complaint, leading to Beck being told she was bullying the staff member and any further "harassment or misconduct to- wards your peers, residents or visitors will result in termination of your employment." Upset, Beck tendered her resignation. Hillside asked her to reconsider as it want- ed her to improve, not resign, so Beck with- drew her resignation. In August 2014, a co-worker found Beck's keys and "lightly tossed the keys" in front of Beck, but Beck claimed the co-worker threw the keys hard at her. She threw the keys back and fi led an incident report. Hill- side moved Beck to the day shift for moni- toring and coaching. On Oct. 30, a resident's wife complained that Beck told her she needed the doctor's permission before sending the resident to the hospital. e resident's wife also fi led a complaint with the Nova Scotia Depart- ment of Health and Wellness, but it deter- mined there was no evidence the resident didn't receive adequate medical care. Hillside decided Beck's behaviour prob- lems were "cyclical" and weren't changing, so it terminated her employment on Nov. 28.

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