Audit of worker's practice reveals gaps
Cara McDonald, a midwife in Manitoba, received back pay from her employer after an arbitrator ruled she was unjustifiably put on unpaid leave whilst undergoing an audit of her practice.
Employed at the Winnipeg Regional Health Authority since 2001, McDonald was put on paid leave of absence after concerns were raised about her practice.
Management informed McDonald she could return to work pending the audit’s results — which ended up taking longer than usual to complete.
Once the audits uncovered the fact McDonald’s practice was operating below-standard, the health authority put her on an unpaid leave of absence on the condition that she fulfill the required courses, training and education to get her practice up to code.
However, the Canadian Union of Public Employees (CUPE), filed a grievance on her behalf, saying the employer was clearly taking disciplinary action — an unfair move, according to the union, as it alleged management could not prove the discipline was warranted.
But the employer maintained its action in this regard was an exercise of management rights in order to uphold safe patient care.
An audit of McDonald’s practice showed evidence of incomplete prenatal physical assessment, normalization and/or failure to identify and plan for risk factors, as well as inconsistent documentation of informed discussions with clients and patients.
McDonald did not dispute this, but in fact was in the process of seeking out additional training and pursuing further education to get her practice up to standard.
It was during this leave of absence the health authority switched her status from paid to unpaid.
In making her decision, arbitrator Kristin Gibson said the issue was whether management was justified in switching her leave — the union argued this was a form of unwarranted discipline, but management said it was done to protect the practice.
In other words, it was necessary to determine "whether the employer has established the inability of McDonald to meet the requisite standard to the extent that she is incapable of performing the job such that they are entitled to hold her out of the workplace without pay until her remedial training is complete," Gibson said.
Because McDonald was consistently described as a caring and experienced midwife who inspired loyalty in her clients — and whom the health authority wished to retain as an employee — coupled with the fact that she was undertaking remedial training and had applied to a Midwifery Bridging Education program, Gibson ruled in favour of the union.
As such, she ordered the unpaid leave of absence be rescinded and McDonald be made financially whole for any lost time during that period.
The requirement to seek out and successfully complete remedial training stands, and McDonald should be returned to work as soon as possible.
Reference: Winnipeg Regional Health Authority and the Canadian Union of Public Employees (CUPE) Local 2348. Kristin Gibson — arbitrator. Karlee Blatz for the employer, Kathy Mcilroy for the union. April 10, 2014.
