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An unsteady standard of trust for hospital employees

How serious should a breach of trust be to warrant dismissal for medical professionals?

By Jeffrey R. Smith

An employer needs to be able to trust an employee to do her job and not damage the organization in some way.

If this trust is breached, it could potentially be just cause for dismissal. However, the threshold for breach of trust as cause for termination can vary, depending on factors such as the nature of the job, the level of supervision and the level of damage the employer could experience from the breach.

Nurses and medical therapists require a high level of trust because of what’s at stake. Not only do patients rely on people in these positions for proper identification of medical problems and effective treatment, but patients are also placed in vulnerable positions.

A couple of arbitration decisions from last year are an interesting contrast in how the standard of trust for employees in the medical field can be weighted.

In one case, a registered nurse in an acute care ward at a Kitchener, Ont., hospital was caught stealing drugs from the hospital. It turned out she had been stealing drugs for a couple of years and the drugs she stole were meant for patients. She also came into the hospital while off-duty and used her access code to get the drugs.

Though she was addicted, the hospital said it couldn’t accommodate her because the risk was too high due to the amount of drugs in the workplace and the risk to patients.

However, an arbitrator found as long as another nurse on duty could administer the drugs, the nurse could eventually return to work after treatment for her addiction, despite the fact the arbitrator acknowledged she “severely undermined the level of trust with her employer” and “caused incredible damage to the employment relationship.”

Though probably frustrating for the employer, there was a way to get the nurse back to work without having to trust her with handling drugs. Since the nurse had a disability —drug addiction — it had a duty to accommodate her.

However, an arbitrator in another case held the trust standard higher than any option of the employee returning to work. A respiratory therapist in a hospital in Lethbridge, Alta., was found to be viewing pornography on a computer at work.

The arbitrator upheld the firing, even though the therapist was remorseful and had fought an addiction to pornography for most of his adult life. Though the therapist had sought counselling and had six years’ service with no problems, the arbitrator felt his misconduct violated not only the hospital’s trust, but that of female patients he examined in close physical contact. Because patients could have “a heightened level of discomfort” if they knew about his actions, the arbitrator found the therapist could “no longer be considered as a trusted respiratory therapist in this particular hospital environment.”

Two cases of medical professionals who dealt with patients violating their employers’ trust with misconduct caused by a type of addiction. One was ruled to be able to be integrated back into the workplace, one wasn’t. Are their situations that different? Should either be trusted back in the hospital environment, or should the misconduct of both serious enough to sever the employment relationship?

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.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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