Arbitrator reinstates lodge worker, says dismissal was too harsh
MARLENE SCHAAN, a cook at the Saskatchewan Cancer Agency’s Saskatoon Lodge, was discharged following two incidents with Lodge guests in September 2013.
In both instances Schaan failed to provide meals to guests undergoing cancer treatment.
At the time of the incidents Schaan had a previous written warning and a five-day suspension on her record. Both previous disciplines related to inappropriate interactions with Lodge staff. The employer claimed the latest incidents constituted culminating incidents, justifying her discharge.
While Schaan’s previous discipline related to misconduct towards fellow staff members, the employer argued her poor attitude was a common denominator in the incidents involving guests.
On Sept.11, 2013, one of the Lodge’s guests — referred to as Patient A — advised staff his medical appointment was scheduled to run in to the Lodge’s lunch period. Schaan was instructed by her manager to put aside plates for the patient to be reheated upon his return.
Schaan did not put aside food for Patient A. When he returned to the Lodge, Schaan told him lunch was no longer available but that he could help himself to a cooler filled with muffins, fruit, cheese and yogurt.
On Sept. 12, 2013, Patient B was scheduled to have lunch at the Lodge but failed to show up. Schaan called his room to ask if he was coming to eat and he declined. Just as the lunch hour was winding down, however, Patient B arrived in the dining area, went to the cooler and helped himself to a few snacks. Schaan did not offer to prepare him anything.
A meeting was held to discuss the two incidents, both of which were witnessed by staff members. When asked about the two incidents, Schaan offered no explanation for her failure to provide a hot meal to both Patient A and Patient B.
After discussing her lack of explanation and apology, the employer dismissed her.
The Saskatchewan Government and General Employees’ Union grieved Schaan’s termination, arguing the September incidents were insufficient reason for discharging an employee with 18 years' seniority and strong performance reviews.
The union request Schaan be reinstated and compensated for lost wages and benefits.
The union argued the employer exaggerated the degree of Schaan’s misconduct. If the incidents were as serious as the employer claimed, the other staff members present at the time would have intervened. Additionally, the union found the employer overlooked several important mitigating factors that favoured overturning the dismissal.
The employer argued Schaan’s primary job as cook was to provide meals to patients, pointing out the vulnerability of the guests who were undergoing cancer treatment. The employer further argued Schaan’s transgressions had to be measured against the high standard of conduct expected of employees working in the health sector.
While sole arbitrator Allen Ponak was satisfied that the evidence established Schaan’s conduct on Sept. 11 and Sept. 12 was inappropriate and justified discipline, he found discharge was too harsh a penalty.
"I do not see the grievor’s... failure to set aside the plates as serious misconduct," Ponak said. "Rather, it is her failure to do something about it that is the real transgression."
Ponek found Schaan failed to provide both Patient A and Patient B with the appropriate level of care. While the incidents provided just cause for discipline, they did not justify dismissal.
The grievance was partially sustained, seeing Schaan reinstated to her position as cook with a six week suspension.
Ponak also ruled Schaan be compensated for lost wages and benefits beginning six weeks from the date of her dismissal to the date of her reinstatement.
Reference: Saskatchewan Cancer Agency and the Saskatchewan Government and General Employees’ Union.
Allen Ponak – arbitrator. Eileen Libby for the employer, Hannah Gasper for the union. June 23, 2014.
