Arbitrator upheld firing due to employer's 'path of progressive discipline'
“It's really hard to be patient and issue progressive discipline when you're living with an employee that’s not showing up appropriately or providing the appropriate level of skill and attention to their job - but if an employer can be patient and illustrate that progressive discipline was followed, it will be in a much better position to terminate the employee and not have them back.”
So says Jackie Laviolette, a labour and employment lawyer at Mathews Dinsdale in Calgary, after an Alberta arbitrator upheld the firing of a long-term care worker for carelessness and inappropriate behaviour that had led to two previous suspensions.
“The employer was very patient, but they didn't condone any conduct on the way to termination,” says Laviolette. “It’s a long process but, ultimately, the arbitrator supported what the employer did and upheld the termination of a tenured employee because of the path of progressive discipline they took.”
The worker was a licensed practical nurse (LPN) for the Bethany Group, a company that operated the Bethany Nursing Home in Camrose, Alta, since February 2011. He worked primarily on the night shift.
Bethany had a code of conduct requiring employees to demonstrate respect, personal accountability, integrity, trust, safety, and learning, and to ensure that clients received respectful and appropriate care.
Complaints about behaviour
In 2019, Bethany received complaints from clients and colleagues about disrespectful behaviour and questionable performance of his duties. The new resident care manager counselled the worker in December, but the worker denied any problems and suggested that families of clients who complained were racist. He assured her that there would be “no further worries.”
In March 2020, a female client was found soaked in urine and complaining of being cold. Another resident’s dentures were found uncleaned on the floor beside his bed, and a third resident’s compression stockings hadn’t been removed in a timely fashion. All were the worker’s responsibility.
The company investigated and the worker said that he did his bed checks on all clients prior to 5:30 a.m., but he later admitted that he hadn’t checked on the female client after 2 a.m., hadn’t cleaned the second client’s dentures, and hadn’t completed the required paperwork for the shift. On March 17, the worker was suspended for one day, primarily for failing to provide adequate care to the female resident. He was warned of further disciplinary action up to and including termination for future infractions.
A few days later, the same female client told a resident support aide that after the worker returned from his suspension he called her “evil and malicious,” told her “I know evil like you that are out to get people fired,” and mocked her when she was crying after being left in urine for most of the night. The aide relayed the client’s comments to Bethany’s HR advisor, adding that she had concern for the worker being unsupervised and that he wasn’t a team player with “effort that is minimal at best.” The HR advisor then informed the resident case manager.
The case manager met with the client to confirm what the client had experienced. The company checked the records to see if the client’s call bell had been operating and found it was never reset after not being answered on the night in question. The worker’s pager was also checked and found to be working properly.
Workplace investigation
The worker was interviewed and he said that he hadn’t heard the client’s call bell the entire evening, despite the fact that four calls were recorded on his pager. He suggested the pager wasn’t working properly and he didn’t hear any calls. He also denied making any disrespectful comments to the client.
The HR advisor didn’t accept the worker’s explanations, as it contradicted the evidence regarding his pager’s functionality and she felt the client’s account was credible and consistent. The worker was suspended for five days.
Bethany also determined that the worker should no longer be on the night shift as the only LPN on duty. It placed him on a day and evening shift schedule where more LPNs and management would be available to support him and he was expected to build trust in his skills and effort.
The worker reported to his new assignment in November after taking an illness leave, but by January 2021, colleagues reported that they were concerned over the worker’s performance. He was seen sitting in the dark at a computer for an extended period of time, his charting was minimal, and he was observed improperly disposing of syringes. Many felt he was doing “next to nothing.”
The performance concerns were addressed at a meeting and in a written letter on Feb. 22 that said a failure to demonstrate immediate and significant improvement in his performance “will result in the termination of your employment.”
Careless error
On May 25, 2021, a registered nurse (RN) checked an elderly resident who had been scheduled for a hydrating fluid infusion and had a hypodermoclysis (HDC) line inserted earlier by the worker. However, the HDC had been inserted improperly, causing a blockage of hydrating fluid. The RN had never seen such an error before, as it was a standard LPN duty. She had to redo the entire procedure.
The worker acknowledged that such a set-up could only have been the result of human error, but he was at a loss as to how it had happened. He suggested that it could have become disrupted between the time he inserted it and when the RN arrived and if it was his mistake, it wasn’t intentional.
Bethany determined that this was a culminating incident and terminated his employment on June 11. The termination letter stated that “whether your actions were caused by your carelessness or by your incompetence, your failure to administer proper treatment and adequately document are unacceptable.”
The union grieved both the five-day suspension and the termination. It asserted that Bethany did not have definite proof that the worker made the comments to the female client leading to the suspension, and there wasn’t just cause for termination. The worker had nine years of successful employment on the night shift and he should have been given more time and instruction to learn the skills needed on the day and evening shifts.
The arbitrator noted that it was a longstanding principle that people employed in the health-care sector had a “very high standard of workplace conduct.”
Repeated misconduct
The arbitrator also noted that, before the five-day suspension, the worker already had a one-day suspension for substandard care of a client. The evidence showed that the worker ought to have heard the client’s call on his pager and he provided no explanation as to why he didn’t. Instead, he provided “a blanket denial without any support,” the arbitrator said in finding the worker lacked credibility.
With a previous suspension and the seriousness of not responding to a client’s needs, the arbitrator found that the five-day suspension was justified even before considering his inappropriate remarks. Those remarks, which likely happened given the surrounding circumstances and the worker’s lack of credibility, further indicated that the suspension was appropriate, said the arbitrator.
As for the culminating incident, the arbitrator noted that the worker initially had no explanation and later acknowledged that he may have made a mistake. Since it was part of regular LPN duties for which the worker had been trained, the most reasonable explanation was that the worker was careless to the detriment of the resident, the arbitrator said. Coupled with the fact that the worker had issues with proper charting according to resident care obligations and legal requirements, the worker’s failure in his LPN responsibilities deserved additional discipline, said the arbitrator.
“[Bethany] illustrated that previous discipline, warnings, coaching, and suspensions had not improved the [worker’s] carelessness or inattention to detail,” says Laviolette. “So when they found the resident with the procedure that had been done incorrectly, there was no path towards rehabilitation at that point, they didn't see any marked improvement, and found that to be a culminating incident.”
The arbitrator also didn’t like that the worker appeared to deflect personal responsibility, says Laviolette.
“There was a lack of remorse and a lack of demonstrated behavior that would show improvement, so that's why they were successful in having the termination upheld,” she says.
The arbitrator determined that the trust relationship necessary for the worker to be successful was irreparably damaged and termination was reasonable. The grievances were dismissed.
Progressive discipline
This is a good decision for employers that shows that a patient approach to progressive discipline can justify termination if there isn’t improved behaviour, according to Laviolette.
“The arbitrator will listen to the employer on what they've done to try to improve the worker’s conduct and support their decision for termination,” she says. “Particularly in health care and long-term care, I think arbitrators are less patient to see continued carelessness or lack of following procedure.”
