'Unsuitability is a lower bar than the just-cause standard': lawyer
The dismissal of a Nova Scotia worker during his probationary period was for legitimate performance concerns and wasn’t arbitrary or discriminatory, an arbitrator has ruled.
The worker was an advanced care paramedic (ACP) with 27 years of experience in emergency health services. He was hired by the Nova Scotia Health Authority (NSHA) on Dec. 29, 2021, to work in the emergency department of the Cumberland Regional Health Centre in Amherst, NS. His contract was for a pilot project that ran from Jan. 17, 2022, to July 17, 2023, and he was subject to a probationary period of 495 hours or nine months.
An ACP was a class of paramedic that had the ability to conduct triage – preliminary assessments of patients to determine the urgency and nature of their treatment.
The worker’s shifts were set to be 11 a.m. to 11 p.m. The worker had difficulty with overnight shifts as had difficulty sleeping during the day, which led to increased anxiety and depression. He didn’t mention his difficulties because he didn’t have overnight shifts.
Insubordination at work
By spring of 2022, the health services manager decided to extend the pilot project to go around-the-clock. On April 8, she informed the worker that the shift schedules would be changed to 7 a.m. to 7 p.m. and 7 p.m. to 7 a.m. as of May 20 – six weeks’ notice as required by the collective agreement. The ACPs would work two day shifts followed by two night shifts with four days off.
At the time, the emergency department was understaffed and busy due to the COVID-19 pandemic.
On May 23, the charge nurse on duty reported to the health services manager that the worker was upset that he had been posted to triage for a full shift.
On May 26, the worker met with the manager and said he couldn’t work triage for a full 12-hour shift as it was too stressful. He also criticized the work ethic of the other paramedic on duty. The manager told him that all ACPs would be expected to triage, especially if they were short-staffed.
The next day, the manager received reports from multiple registered nurses that the worker had placed a patient on a stretcher outside of an exam room but didn’t communicate that he wasn’t going to resume care or provide a report to anyone. The patient was left untreated for more than 13 hours.
Refused assignment
On May 31, the charge nurse informed the manager that the emergency department had been full all night and she had assigned the worker to triage. However, the worker “made a big deal” and said he wouldn’t do it. He eventually agreed to do triage but only until she came on.
The manager also spoke with a paramedic who was being onboarded by the worker. He reported that the worker had refused to triage and acted unprofessionally in front of colleagues and patients.
The manager met with the worker, who maintained that he wouldn’t spend a full shift in triage because it made him anxious. He apologized and the manager sent him home. He didn’t work scheduled night shifts over the next two days.
On June 7, the NSHA issued a discipline letter to the worker for disrespectful behaviour and insubordination. The letter warned that another similar incident would result in termination of his probationary employment.
The worker worked a night shift on July 3 and was assigned to triage in the emergency department. Midway through the shift he asked to go lie down. The charge nurse said no, as it was busy. However, the worker reclined at the desk and needed to be woken up every time triages needed to be performed, and he complained each time.
The charge nurse expressed concern to the manager about the worker creating “an unnecessary challenge” that made things more difficult in the department.
Accommodation of worker
Two days later, the worker told the manager that working nights made it difficult to sleep and his depression was coming back, which was the first time he had mentioned any health concerns to her. She suggested he try to switch shifts with colleagues or seek accommodation through the occupational health department.
According to the worker, he hadn’t looked into the accommodation policy because he didn’t know about it and he was waiting for the NSHA to advise him of the process.
On July 13, management met with the worker to discuss the July 3 incident. The worker said he was voicing his opinions, and he mentioned his trouble with night shifts. He said he could get medical documentation, but he ended up not providing any. Management told him his colleagues were feeling uncomfortable, and he was creating a difficult working environment.
On July 15, the NSHA terminated the worker’s employment based on concerns with his conduct, particularly his dissatisfaction with assignments to triage duties and interactions with colleagues. The collective agreement allowed the NSHA to terminate a probationary employee at any time with at least 10 days’ written notice.
“There were two different standards codified in this collective agreement - unsuitability, which applies when terminating a probationary employee, is a lower bar than the just-cause standard required to terminate a full-time employee who's not probationary,” says Megan Thompson, a labour and employment lawyer at McInnes Cooper in Halifax.
“It essentially means that someone can be terminated a bit more easily if they don't meet their expectations during the probationary period.”
‘Arbitrary, discriminatory’ termination: union
The union grieved, arguing that the dismissal was “arbitrary, discriminatory, and in bad faith.” The worker provided a report from his doctor a few months later that stated working nights led to insomnia, anxiety, and depression.
In some cases, there may have been room for progressive discipline or more hands-on performance management, but in the context of the situation and the collective agreement, dismissal was a logical step, according to Thompson.
“This was an emergency department during COVID, when they were limited in staffing and really needed the team to pull together and respond to overcapacity,” she says.
The arbitrator noted that emergency departments require a co-operative work environment, particularly during staff shortages and high patient volumes during the pandemic. The NSHA assessed the worker’s suitability during his probationary period based on workplace dynamics, including feedback from nursing staff, and determined that his approach to assignments was disruptive with “a whiff of insubordination,” the arbitrator said in finding that the termination decision wasn’t arbitrary or in bad faith.
“There was insubordination with [the worker’s] repeated questioning and challenging of his superiors, and a lot of combative behavior,” says Thompson.
“And there were concerns generally about the worker’s suitability, the type of conduct that he was disciplined for, and instances of poor communication or poor documentation of handovers for patients that had been his responsibility - that was compounding the insubordinate behaviour.”
No evidence of disability
The arbitrator noted that, although the worker eventually provided a medical report outlining his history of insomnia, anxiety, and depression, this was months after his termination. As well, the report didn’t conclusively state that the worker was unable to work night shifts, it only suggested that shift work could aggravate his condition – many people who work night shifts experience difficulty sleeping, and depression and anxiety weren’t disabilities, said the arbitrator.
The arbitrator found that the worker didn’t proactively seek accommodation – a veteran paramedic ought to have known there was an accommodation process in place - or provide medical documentation during his employment, despite being advised to do so. There was no evidence that the NSHA was aware of a disability requiring accommodation and the worker’s complaints about night shifts weren’t enough to trigger a duty to inquire further, the arbitrator said.
“Part of the assessment related to the credibility of this particular worker was the length of time that it took for [the worker] to raise any concerns about working the night shift,” says Thompson. “He was given six weeks’ notice of that change in accordance with the collective agreement, and the arbitrator seemed to feel that if he knew that he had a disability at that time, he should have sought an accommodation.”
The arbitrator determined that the termination wasn’t discriminatory and the NSHA had acted within its rights under the collective agreement. However, the NSHA didn’t provide the required 10 days’ pay in lieu of notice required by the collective agreement, so it was ordered to compensate the worker for 10 days’ pay. The grievance was otherwise dismissed.
“It remains important for employers to be aware about any requests for disability accommodation, but the accommodation process is a two-way street that requires the co-operation of both the employer and the employee,” says Thompson. “In this case, the worker wasn’t sufficiently forthcoming and delayed his participation to the extent that there was nothing for the employer to assess for accommodation.”
