'Just cause is more likely to be accepted… given the seriousness attached to medical treatment'
“If the nature of a job and an industry lends itself to a higher standard of conduct, then a court or arbitrator is more likely to accept a less-than-perfect process prior to dismissal on the employer’s part.”
So says Sharaf Sultan, principal of Sultan Lawyers in Toronto, after an arbitrator upheld the firing of a healthcare worker for breaching patient care policies and procedures.
Michael Garron Hospital is a hospital in Toronto. The worker was a full-time registered practical nurse (RPN) at the hospital since 2007.
The worker received:
- disciplinary counselling for inappropriate conduct in February 2018
- a one-day suspension for not following procedures in March 2019
- a written warning for being late to work in August 2019
- a counselling for rude conduct in October 2019
- a written warning for being rude towards a patient’s family member in January 2020.
The hospital developed a learning plan for the RPN in May 2020 to be completed by July 3. This was later extended to Aug. 31, as the worker had failed to complete the deliverables such as reviewing policies and procedures, and taking learning modules.
Staffing problems in healthcare
The RPN normally worked weekdays, but on Aug. 8, 2020, the hospital asked her to work an extra Saturday evening shift. However, the worker felt stressed because, for the first half of the shift, her team was understaffed, leaving her as the only RPN. Another RPN was added for the second half of her shift.
The worker was given background on the patients at the beginning of the shift, including that a particular patient was a “drug abuser.” The instructions for this patient were that if he asked for immediate release morphine, the RPN was to give him 40 mg, which was in addition to other morphine doses he received at set intervals.
The patient told the worker that he wanted his immediate release morphine at 9 p.m. to help him sleep. One of the regular doses was scheduled for about the same time, so after the worker administered it, she only gave the patient 2.5 mg for the immediate dose. She also inaccurately recorded it as 0.5 mg on the medical chart, causing a discrepancy in the hospital’s narcotic control records.
Shortly before finishing her shift, the worker told the team lead and the incoming RN that she had underdosed the patient. Neither reported it to senior management or made a notation on the patient’s chart.
The next morning, the patient reported to nurses that he was in a lot of pain and wanted his scheduled dose of morphine earlier. However, they were unable to do so because the hospital’s pharmacy didn’t want to release narcotics that early.
Investigation into medication error
The hospital learned of the medication error on Aug. 10, as well as the fact that the worker didn’t document any assessment of the patient’s withdrawal symptoms on his medical chart. It began an investigation and the RPN was interviewed.
The worker explained that there wasn’t enough morphine in the unit’s narcotics cabinet for another immediate release dose, so she only administered 2.5 mg so there would be some left over for the night nurse. She also acknowledged the error in documenting the amount and that she didn’t complete the narcotics control sheets, which was required.
The RPN also said it would have taken too much time away from her other to go to another unit for more morphine and the patient had already received his scheduled dose so he wasn’t in pain. She noted that the patient was a drug user and was soothed “like a baby” by what she had given.
When asked if changing the prescribed dose was within the scope of her practice, the RPN replied that it wasn’t, “but when you have no-one around, understaffed and meds aren’t available, who takes care of the patient?” She also acknowledged that she could have approached another unit for more medication, contacted the pharmacy, or requested authorization from her team lead or a physician to change the dose.
The worker conceded that she made an error in judgment. She also blamed understaffing that made her fall behind in her work.
The hospital determined that the RPN’s actions constituted a significant breach of her obligations and were outside the scope of her practice.
Just cause termination after discipline
Given the worker’s prior discipline and failure to complete the learning plan, the hospital decided to terminate the worker’s employment for cause on Aug. 31. It also determined that the worker’s actions constituted wilful misconduct under the Ontario Employment Standards Act, 2000 (ESA) that removed the worker’s entitlement to statutory termination or severance pay.
The union filed a grievance, arguing that the hospital didn’t have just cause. It argued that the worker’s actions came in the context of personal and professional distress – her husband had recently died and the pandemic and understaffing created additional stressors. It also argued that the immediate release morphine was to be administered on an “as needed” basis, which permitted the attending nurse some discretion on how much should be administered.
The union added that the RPN’s intentions were good in trying not to neglect her other duties and avoiding added risk to the drug-using patient. Her most recent discipline was a one-day suspension and written warnings, so it was a big jump to dismissal in a progressive disciplinary sense, said the union.
The arbitrator noted that it has been established that the standard of performance for healthcare professionals is high. A failure to follow known policies or procedures can often justify termination even for a first offence, although not automatically, the arbitrator said.
“The arbitrator understood the potential harm associated with inaccurate medication doses and just cause is more likely to be accepted in such circumstances, given the seriousness attached to administration of medical treatment,” says Sultan.
Breach of trust
The arbitrator agreed that the worker went outside of the scope of her practice when she failed to administer the full dose of immediate release morphine and then committed serious misconduct by inaccurately charting the dosage. This undermined the hospital’s confidence that she could carry out her responsibilities, which was already shaken from her prior discipline, the arbitrator said, adding that it was also concerning that the worker tried to rationalize her misconduct by blaming understaffing.
As for that excuse, the arbitrator found it lacked credibility since the RPN had options to obtain the medication and the team wasn’t understaffed for the second half of her shift.
The arbitrator also found that the worker showed “judgmentalism” in denying equal treatment to the patient because he was a drug user, which struck “at the core of the employment obligations” that required administering treatment without discrimination.
The arbitrator determined that the worker’s misconduct was negligent and careless. It was also not a standalone event, given her prior discipline and the fact that she was on a learning plan, said the arbitrator.
The hospital was in a good position to stick with just cause because it had already taken steps to address the worker’s problems, says Sultan.
“It's probably fair to say that the onus is often going to be much more on the employee than the employer in circumstances like this - does the employee take ownership over the issue, feel genuine remorse, and place the patient over themselves if they’re struggling mentally?” he says. “The idea is that the employee is demonstrating through their actions that they put themselves above their own issues, particularly because of the seriousness of the situation.”
Serious misconduct, failure to accept responsibility
The arbitrator acknowledged the worker’s stressful circumstances and 13 years of service, but the seriousness of her misconduct and failure to accept responsibility didn’t outweigh the mitigating factors. As a result, dismissal was appropriate, said the arbitrator.
“An employer [is often] expected to be proactive to try to assist [a worker with a potential disability such as mental stress], but I don't think that that applies as much in the healthcare sector,” says Sultan. “Healthcare workers are expected to self-assess to a certain extent, whether that's fair or not - if you are disabled, you are to keep yourself away from causing potential harm.”
However, the arbitrator disagreed that the worker’s misconduct was wilful. Her reasoning that she needed to leave some morphine for the overnight nurse and she needed to get to her other duties wasn’t malicious, and the fact that she told the team lead and the overnight shift about the underdose supported that notion, the arbitrator said.
In addition, their lack of response indicated that they didn’t seem to think it was that serious, said the arbitrator in finding that the worker’s actions were spontaneous in the circumstances.
The arbitrator upheld the termination but ordered the hospital to pay the worker statutory severance pay.
