The grievor was employed at a hospital. He had posted photos taken in the aftermath of a patient suicide to his Facebook page. His termination was upheld.
A cleaner at a hospital was fired after it was discovered he uploaded photos he had taken at work to the social networking website Facebook.
N.B. worked part-time at a hospital as an Environmental Service Representative. He had a checkered disciplinary record that contained a number of warnings and a suspension.
When he was hired in 2005, N.B signed an Employee/Volunteer Confidentiality Form.
The policy forbade any disclosure of confidential patient/staff or corporate information by any employee or volunteer without proper authorization. The policy provided for discipline up to and including termination for breaches of confidentiality.
In 2009, N.B. also signed the hospital’s Code of Practice, which spelled out similar proscriptions against unauthorized disclosure of patient information.
In September 2010, N.B. was called to assist with a cleanup at a location near the hospital’s parking garage where a patient had jumped to his death.
The incident scene was crowded with police and other emergency staff when N.B. arrived with his cart of cleaning supplies.
N.B. waited, sitting on a bench. During that time he took a photo of the crowd scene with his cellphone. About 20 minutes later, he was told by his supervisor to return to his scheduled work and be prepared to return when called.
N.B. returned later to clean the site, picking up some gauze, a glove and some absorbent compound that was spread at the scene. However, first he took another photo.
Posted photos to Facebook
Later, during his break, N.B. uploaded the photos to his Facebook page. He also provided captions for the photos, explaining the crowd scene as being the aftermath of a suicide and the second photo to illustrate what he had to clean up.
N.B. took the photos down the next day after a telephone conversation with a colleague (and Facebook friend) in security who had seen the posted photos.
On Sept. 20, 2010, the hospital interviewed N.B. about the incident. He admitted taking one photo, but denied posting any pictures on Facebook.
N.B. was interviewed again three days later. He apologized for taking the photo but again denied posting any photos.
N.B. was fired. The union grieved.
The employer said N.B. had engaged in serious, culpable misconduct. He had breached patient confidentiality and violated the Code of Conduct. Termination was warranted and, given the seriousness of the misconduct, there was no reasonable cause to substitute the termination for a lesser penalty, the employer said.
The union denied N.B. had engaged in culpable misconduct. The employer had misapplied the requirements of the confidentiality policy in this case. The victim was not identified as a patient and the incident happened in a public place, the union said. N.B. may have shown poor judgment but it was not culpable. Rather, the act was a momentary aberration that was neither malicious nor calculated. A lesser penalty was warranted in the circumstances, the union said.
The Arbitrator disagreed. M.B. had engaged in culpable misconduct. The Arbitrator rejected the union’s assertion that because the employer’s confidentiality policy did not specifically contemplate a breach like N.B.’s, the termination didn’t meet the standard for a “clear and unequivocal” rule as required by Re Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd.
“[I]t is unnecessary for the Hospital to particularize in writing every single possible violation of this obligation to satisfy the third requisite in [KVP] that a rule must be clear and unequivocal… [T]he Hospital’s Policy and Code… set out in sufficiently clear detail the broad ambit of the scope of an employee’s obligation regarding the nondisclosure of confidential patient information,” the Arbitrator said.
Grievor not forthright
The Arbitrator also rejected the argument that the policy was misapplied. The evidence suggested M.B. was aware the victim was a patient. N.B.’s assertion that he would not have posted the pictures had he known the victim was a patient was not credible. N.B. was not forthright in his interview with the employer. He lied about posting the photos.
In any event, N.B. failed to exercise proper diligence. “To maintain the integrity of the confidentiality of patient information, [M.B.] ought to have acted with reasonable diligence, which he did not do. He ought to have conducted himself by acting on the presumption that the suicide victim was a patient, given the context of what occurred…”
N.B. had violated both the Hospital’s Code and its Policy. He posted photos and disclosed information surrounding the circumstances of a patient’s death, including the age and the location. The fact N.B. did not specifically name the patient did not fundamentally lessen the misconduct.
The termination was warranted and there were insufficient mitigating factors to justify substituting a lesser penalty, the Arbitrator said.
N.B. had lied about posting the photos and his explanation for why he had lied was not satisfactory. The assertion that his actions were a momentary aberration also did not stand up. He had time between taking the photos and posting them to sufficiently consider the implications of his actions. N.B.’s disciplinary record also worked against any possibility of reinstatement. So did the need to underscore an unequivocal message of deterrence in this case.
“[A] clear message must be sent to employees that disclosing confidential patient information without authorization is totally unacceptable and will not be tolerated.”
The grievance was dismissed.
Reference: Credit Valley Hospital and Canadian Union of Public Employees, Local 3252. Randy L. Levinson — Sole Arbitrator. Robert W. Little for the Employer. Tracey Pinder for the Union. Jan. 9, 2012. 18 pp.
