Report of workplace illness resulted in suspension for insubordination
An ear infection led to a three-day suspension for licenced practical nurse Elizabeth Butler.
The Canadian Union of Public Employees (CUPE) Local 2418 filed a grievance against the New Brunswick-based Campobello Lodge after Butler was disciplined. The union claimed Butler received a three-day suspension without just cause and called for compensation and lost benefits for the three days in question, with full redress and all written records of the discipline removed from her record.
Campobello Lodge is a nursing home for seniors requiring around-the-clock attention and supervision. For about a year leading up to her discipline, Butler was suffering with problems in one ear. The ear appeared to be infected and she was put on antibiotics by her doctor.
The problems did not improve, however, and Butler began to suffer from occasional spells of vertigo. She was referred to a specialist, who prescribed further antibiotics as well as a regimen of steroids. This treatment was also unsuccessful.
Eventually Butler was diagnosed with Methethincillin Resistant Staphylococcus Aureus (MRSA), a form of bacteria that has developed a resistance to traditional antibiotics.
Many factors present in the Lodge — including a large number of residents with underlying diseases or medical conditions, and the presence of invasive devices such as catheter feeding tubes and tracheostomies — can raise the probability of MRSA incidence.
Butler informed her supervisors and was told to take time off work and provide a doctor’s note in support of her absence. Butler was also required to fill out a section of a document reporting the presence of MRSA to WorkSafe NB, as it is considered an occupational disease.
She completed the necessary fields but was unable to connect with her manager to return the form, as the lodge was closed to the public because of a flu infection.
The form clearly indicated the report "must be submitted within three days after the accident." Since time was running out, and Butler panicked. She faxed the document to WorkSafe NB from her boyfriend’s place of work.
Several days later, management became aware of the report’s submission. Butler was informed that by submitting the report the way she had, she had committed a breach of confidentiality. When Butler returned to work, a meeting was held to discuss the issue of her insubordination relating to the report and Butler was suspended for three days without pay.
The employer argued Butler failed to follow a direct order. She was told to fill out the necessary fields in the report and return it to her supervisor, who would complete the form and submit it to WorkSafe NB. The employer argued that three days’ suspension was an appropriate discipline considering the principle of progressive discipline. Butler was previously disciplined for insubordination, the employer said, which served as a foundation for the three-day suspension.
The union, however, argued there were mitigating factors that should have been taken into consideration. Butler attempted to return the form to her employer, but the lodge was closed to the public and she was unable to reach her manager. Butler sent the form to WorkSafe NB not as an act of defiance but to comply with the organization’s requirements, the union said.
Arbitrator Guy Couturier found discipline was warranted. Butler expressed no regret for her actions, Couturier said, and he found a loss of wages was justified.
However, Couturier also found the three-day suspension was excessive in the circumstances and reduced it to one day without pay. He ordered her benefit losses and letter of discipline be modified accordingly.
Reference: Campobello Lodge and the Canadian Union of Public Employees Local 2418. Guy G. Couturier — arbitrator. Michael Keating for the employer, Kim McCaffrey for the union. Aug. 10, 2015.
