A Manitoba arbitrator has reinstated a nurse who was fired for failing to disclose restrictions on his professional duties — but it also indicated the employer wasn’t obligated to accommodate those restrictions.
Tousif Ahmed was a registered nurse who worked in the emergency department at the Victoria General Hospital in Winnipeg, which is operated by the Winnipeg 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 emergency department.
He had no discipline on his record and the hospital had no issues with his competency or professionalism as a nurse.
In January 2014, a patient at the hospital complained Ahmed had touched her inappropriately during an examination. The hospital’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 description of what he had done wasn’t completely consistent with the charting he had done at the time.
The hospital interviewed the patient in question and determined 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 investigated 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
The next day, the safety co-ordinator 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 imposed conditions on Ahmed, including 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 opportunity to safeguard patients, as well as exposing it to liability.
Ahmed explained that his lawyer 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 reference to the housekeeper in Ahmed’s charting, though there was a reference to a security guard assisting, which was unusual.
When the hospital management asked what he would have done in a life-or-death situation with a female patient, Ahmed replied that he would “find somebody 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 authority 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 irreparably 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 control 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 difficult to structure a program in another department to ensure Ahmed wouldn’t have contact with a female patient alone, given staffing crunches, breaks, unexpected situations and the constant movement 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 before but not in the emergency department.
But the union rejected the settlement offer, saying Ahmed had made sure he complied with the recognizance order, the suspension 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.
The 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.
The hospital made it clear in the termination letter that it dismissed 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 knowledge or consent.
Ahmed denied the hospital the opportunity to protect itself and its patients and it had no way of knowing 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 relationship, the relationship was not permanently broken, said the arbitrator, who considered that Ahmed had no previous discipline during his three years as a nurse and the hospital didn’t discipline him following the patient’s complaint and allowed him to continue to work.
In addition, Ahmed didn’t intend to deceive the hospital, but made a bad decision in following the advice of his criminal lawyer rather than talking to the safety co-ordinator — who had an “open-door” policy — or consulting an employment lawyer.
“All this suggests that his misconduct was not wilful, in the sense of a nurse who deliberately disobeys known rules or knowingly administers medication without authorization to a person who was not a patient,” said the arbitrator.
“Rather, his conduct constituted a serious error in judgment, but it was not an error that was committed with intent to disobey known obligations.”
The arbitrator pointed to the fact the hospital was willing to have Ahmed return 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 restricted from being alone with female patients.
The evidence showed the hospital did consider whether it could accommodate 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 hospital 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.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
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