Dismissal not always appropriate for resident abuse but multiple incidents demonstrated pattern of misconduct: Arbitrator
An arbitrator has upheld the dismissal of an Alberta health care aide who was fired for abuse of residents in the facility where she worked.
The worker, 41, was a health care aide at a long-term care facility operated by Bethany Care Society in Airdrie, Alta. Most of the residence at the facility suffered from cognitive impairment that requires regular care from staff. The worker began working at the Airdrie facility in December 2008.
In October 2010, another aide who partnered with the worker reported to her union shop steward — who then reported to facility management — two incidents involving the worker and patients. In the first incident, the worker was trying to move a patient with severe dementia from her bed to her wheelchair. The patient was shouting repeatedly and, according to the other aide, the worker placed a sock over the patient’s mouth and told her to “shut the f--- up already.” In the second incident, another patient with dementia and incontinence urinated while the worker was moving her from her wheelchair to bed. The worker reportedly told the patient angrily to stop it and swore at the patient.
Management investigated the incidents and the co-worker changed her report to say the worker used part of the patient’s skirt rather than a sock over her mouth, but later testified it was a sock, saying either way it was an article of clothing.
Rumours of investigation brought forward more allegations
After Bethany Care launched the investigation, another health care aide who had worked with the worker came forward to report three incidents that disturbed her. On one occasion, while caring for the same resident from the first incident, the worker told the resident to “shut up and stop yelling” and held the edge of the patient’s skirt to her mouth. On another occasion, they entered the room of a patient with dementia who had soiled himself. The worker reportedly swore and told the patient he stunk. Later, the aide reported the worker told another patient the same thing in a similar situation. The aide testified she was shocked and couldn’t believe the worker’s behaviour, which is why she didn’t report it until she was asked if she had witnessed any inappropriate conduct by the worker.
The rumours of an incident involving the worker spread around the Airdrie facility and another health care aide, who worked part-time and had partnered with the worker, reported two other incidents. They were attending to a patient with dementia and, according to the aide, the worker said loudly, “I hate this woman, she acts like such a princess.” Another time she reportedly told a male patient who was making noises to “stop your moaning and groaning, you old grump. You sound like a god-damned woman.”
Bethany Care held an investigative meeting on Nov. 15, 2010, and the worker said taking care of the residents was “meaningful” to her and she recognized they deserved dignity and respect. She denied doing any of things she was accused of and claimed she was “completely shocked and confused” by the allegations. She said she didn’t consider herself a “vulgar person” but said “we all swear a bit, but it’s very rare that the F-word gets dropped in my vocabulary.” In particular, she emphatically denied muffling a patient’s mouth with a piece of clothing and added that “my partner isn’t innocent.” She expanded on this by alleging that her partner had been the one that “shoved a skirt” into the patient’s mouth.
Bethany Care wrapped the investigation and determined the worker was guilty of the misconduct reported by her co-workers. The misconduct involved multiple incidents against vulnerable patients and violated Bethany Care’s code of conduct and the employer felt she had acted dishonestly by denying everything. It felt it couldn’t trust her to act properly in the future, the worker’s employment was terminated on Nov. 22, 2010, after which the union filed a grievance.
The union claimed Bethany Care’s workforce was “plagued by division into cliques” and this contributed to false accusations against the worker, who wasn’t friends with her accusers. The union also argued Bethany Care was inconsistent in its discipline for resident abuse, citing a previous incident where a resident kicked and slapped an aide and the aide responded by slapping the patient back. The aide was contrite and remorseful and Bethany Care felt it was an impulsive action that was unlikely to happen again, so it gave the aide a written warning.
The arbitrator found most of the co-workers who made the allegations were credible and had little reason to lie, with the exception of the one who reported the second incident of holding a skirt to a patient’s mouth and the comments that a patient smelled bad. These allegations were vague and there were holes in her story, said the arbitrator.
However, the arbitrator found most of the incidents likely happened as described; in particular the first incident of muffling the yelling patient and swearing at the patient who urinated. In addition, the worker not only denied this serious allegation, but tried to blame a co-worker. However, she was vague by simply saying her partner wasn’t innocent, at a time when she “urgently needed to be clear if she was accusing someone else,” said the arbitrator.
High standard of conduct
The arbitrator acknowledged that a higher standard of conduct is expected from employees in the health care field than in other occupations and, though the type of patient in Bethany Care’s facilities could “tax the patience and self-control of the most considerate caregiver,” they were also exceptionally vulnerable and dependent on their caregivers. Health care aides worked with little supervision, so the trust of the employer was essential, said the arbitrator.
“If an employee has given reasonable cause to believe that he or she is not capable of maintaining appropriate levels of self-control and exhibiting proper conduct toward residents, the public interest weighs in the direction of treating the misconduct as just cause for dismissal,” said the arbitrator.
Though such misconduct doesn’t automatically mean dismissal and may sometimes call for progressive discipline — as in the other incident cited by the union — the arbitrator found “the facts speak of a developing pattern in (the worker’s) behaviour, a hardening of attitude toward these residents about which management can rightly be very concerned.” This concern that the worker could continue her misconduct was reasonable and provided just cause for dismissal. The grievance was dismissed. See Bethany Care Society and AUPE (the worker), Re, 2013 CarswellAlta 1525 (Alta. Arb. Bd.).
