‘It’s very difficult to have a termination upheld… where the worker is seen to have already suffered significantly’
An arbitrator has found that the dismissal of a Newfoundland and Labrador group home worker following an altercation with a resident didn’t constitute just cause and a one-year suspension was more appropriate discipline.
The worker was a group home counsellor for Newfoundland and Labrador Health Services (the health authority), a non-profit organization providing residential supports and individualized care to adults with intellectual and developmental disabilities. She was hired in 2015.
The worker received training in non-violent crisis intervention (CPI) every two years. Key techniques in CPI included removing oneself from a violent or potentially violent interaction, de-escalation, and using non-restrictive interventions such as disengagement from someone holding onto oneself, removing dangerous items, and calling for help.
The worker worked with an adult patient known as K for more than one year. K was known to get agitated and escalate to violent behaviour, and he had injured staff before.
On Nov. 16, 2022, the worker was near the end of her shift in the early morning. She entered K’s room and found him with a pair of broken eyeglasses, which he said he had found in the trash. He seemed agitated and went to his bedroom with the door closed. The worker tidied his apartment and put away anything that could be used as a weapon.
Physical altercation
The worker continued to talk to K through the bedroom door, telling him to “make good choices.” As she was about to leave, K came out of his bedroom with a metal water bottle in his hand and approached her. He was significantly larger than the worker.
Instead of leaving, the worker turned around, spoke to him and stepped towards him. K swung the water bottle at her and the worker raised her hands. Her glasses were knocked off her face and K hit her repeatedly with the bottle. K lost his balance and grabbed the worker’s shirt, pulling her down with him.
The apartment door closed and the worker was locked in the apartment for nearly a minute until another counsellor arrived. K was on his back with the worker kneeling over him and holding his hands. K was startled when the door opened and the worker was able to leave the apartment.
When the next shift arrived, the worker went to a hospital and sought dental treatment. She texted her manager about her injuries – to her head, face, mouth, teeth, knees, and arms - and filed a written incident report a few days later. She also experienced anxiety, depression, and post-traumatic stress disorder (PTSD) symptoms and went off work.
The worker applied for workers’ compensation benefits, but the health authority filed an objection to her claim, saying that she could have left the situation but chose to stay and put herself in harm’s way.
WorkplaceNL informed the authority that engagement in an altercation with the resident wasn’t a bar to workers’ compensation and approved the worker’s claim for her physical injuries and a traumatic mental stress injury.
The worker remained off work on workers’ compensation benefits until June 2, 2023, and she then took sick leave until June 19.
Workplace investigation
The health authority investigated the incident, which included interviewing the worker and some of her co-workers, reviewing the plan for K, and reviewing video surveillance footage. The footage showed the worker walking towards K waving her arms and the two of them falling while K grabbed the worker’s shirt – although it was unclear whether K tripped or the worker pushed him. It also showed the worker returning to K’s apartment a few seconds after the incident and retrieving her glasses from the floor, keeping one hand on the door. K tried to hit her again and she left. A minor bruise on K’s hand was reported, but it was unknown whether it was from the incident.
The worker admitted that she had tried to push the water bottle out of K’s hands and raised her hands to block the blows. She also said she had been talking to K about making good choices, as per the protocols for dealing with him.
The investigator determined that the worker had hit K in the chest rather than tried to get the water bottle from him, she pushed him when they fell to the floor, and then held him down. This was considered physical abuse of a resident in breach of authority policies and the provincial Adult Protection Act (APA). The investigation report noted that there was a lack of support for staff, so they “have been doing what they think is best when working with client which has led to a lack of consistency for client.”
When the worker returned to work on June 19, the authority terminated her employment. The termination letter indicated the worker could have left the room but chose to engage in physical contact with K, contrary to her CPI training and instructions for dealing with K. This breached the high level of trust required for her to safely perform her duties, the letter said.
The union grieved the termination as excessive, given that the worker had eight years of service with no discipline and the incident was a response to a crisis situation.
Video evidence
The arbitrator considered testimony from the worker, employer representatives, and investigators, alongside the video footage and investigation report. The worker denied striking or intentionally harming K, while the video footage didn’t clearly show an assault – this was interpreted by management, the arbitrator said.
“The main issue was that the employer drew a conclusion from the video evidence that couldn’t actually be supported by the video - that the worker had abused the resident,” says Twila Reid, an employment lawyer at Stewart McKelvey in St. John’s.
The arbitrator noted that the APA defines abuse as “the deliberate mistreatment of an adult that causes or is reasonably likely, within a short period of time, to cause serious physical, psychological or emotional harm” and found that the evidence didn’t meet this threshold. The arbitrator also found that the worker used CPI techniques in self-defense and her failure to leave the scene wasn’t premeditated.
The arbitrator acknowledged that the worker's return to K’s apartment to retrieve her glasses was a serious error in judgment and a breach of protocols, but he accepted her explanation that she had no recollection of this due to trauma from the attack.
The arbitrator agreed that the worker failed to follow established crisis response procedures and demonstrated poor judgment, but he found that her actions didn’t justify termination. It was a “spontaneous response to the actions of the resident” rather than deliberate misconduct, and it was an isolated incident, said the arbitrator.
Mitigating factors
Noting mitigating factors such as the worker’s length of service, absence of prior discipline, provocation by K, and confusion from conflicting employer protocols – the authority had four different plans that could apply to the incident - the arbitrator determined that termination was excessive.
Allowing the grievance in part, the arbitrator revoked the worker’s termination and substituted a one-year unpaid suspension with full compensation for lost pay beyond the suspension, including restoration of seniority and benefits.
The union claimed $30,000 in aggravated damages for mental distress from the termination, but the arbitrator found no evidence that the authority acted in bad faith or conducted the termination in an unduly insensitive manner.
Although the arbitrator found there was no bad faith, it was risky for the authority to oppose the workers’ compensation claim as it didn’t seem reasonable to do so, according to Reid.
It would also have been advisable for the authority to focus more on its obligations to have a safe work environment and the requirement for workers to follow all safety policies and protocols, she says, although she agrees that significant discipline was warranted for the worker’s failure to follow safety training.
“A 12-month suspension is a very significant penalty and it’s obvious that the arbitrator viewed the worker’s actions in not deploying the techniques used in training as very serious,” says Reid.
Ultimately, this case has bad facts for an employer trying to prove just cause, according to Reid - the worker was seriously injured in an attack by a resident and the evidence didn’t show abuse, but it did show a lack of proper technique when the worker failed to exit the environment when there was a clear opportunity to do so.
“I think it’s clear that this worker had a very traumatic experience as a result of the actions of the resident,” says Reid. “While it’s clear that the worker should have followed safety protocols as per her training, it’s very difficult to have a termination upheld in circumstances such as this where the worker is seen to have already suffered significantly as a result of her error in judgment.”
See NAPE v. Central Residential Services Board Inc. (April 30, 2025), Sheilagh Murphy – arb. (NL arb.).
