First warned and then re-trained on medication protocols following three incidents where she failed to properly record and administer medications to residents with developmental disabilities, a Developmental Service Worker was fired following a further incident where she falsely recorded that she had medicated a resident.
The union grieved the termination arguing that while discipline was warranted, mitigating circumstances supported a case for reinstatement.
Hired in 2006, S.M. provided care to residents with developmental disabilities. The home was staffed around the clock with up to three workers on shift during the day and afternoon shifts and two on the overnight.
Caring for the residents includes administering medications and staff is trained according to a 15-step process on administering medications.
A key, and mandatory, feature of the protocol is a two-step process that requires staff to record an “X” on a tracking chart when the medication has been taken out, followed by an initial on the chart after the medication has been successfully administered to the resident.
S.M. committed three medication errors in May, 2009. In one instance forgetting to administer the medication as required and in another, administering a dose when it was not required. In the third case, she failed to give a resident all of his medications despite initialing the chart to indicate that she had.
Retraining, letter of counselling
After the errors came to light, S.M. was called to a meeting with her supervisor and a union rep. The seriousness of the errors was stressed and methods of avoiding any recurrences were discussed. Retraining was arranged for S.M. and she was issued a “letter of counselling” that emphasized the importance of following the medication protocols. It also contained a warning that any future performance issues would result in discipline up to and including termination.
One month later and following her re-training, S.M. again failed to administer medications to a resident as required.
In the course of administering morning medications, a co-worker discovered a resident’s anti-convulsant medication that should have been administered the night before. While there was no “X” to indicate that the medication had been prepared, S.M.’s initials indicated that the pills had been administered. Staff reports indicated that the resident had suffered convulsions overnight.
S.M. was fired.
Reckless and deliberate act
Termination was justified the employer said. Initialing the medication record before administering the medications was not a performance error but a conscious breach of protocol that could be characterized as a reckless and deliberate act. She was a relatively short-service employee and she had been specifically warned about the consequences of the failure to follow the medication protocols. Such a failure must be considered against the high standard expected from employees working in the healthcare field, particularly when they are responsible for the care of vulnerable residents. Moreover, the mitigating factors presented by the union — fatigue, lack of sleep and chaos in M.S.’s home life — did not add up, the employer said.
The union urged the Arbitrator to reinstate S.M. The offence was in fact her first disciplinary offence and the principles of progressive discipline were applicable in this case. She was sincerely remorseful and accepted responsibility for her actions, the union said. Mitigating factors were in play but the key questions were whether or not the employment relationship remained viable and whether or not S.M. had what it takes to deliver care.
There was no doubt that S.M. committed a “serious medical error,” the Arbitrator said. “Simply stated, she disregarded safeguards put in place to ensure medications are in fact administered to residents.”
A choice not to comply
More than that, the Arbitrator agreed that S.M.’s failure to administer the medications as required was “not a competence issue but, rather, reflected a choice by her not to comply with certain of the steps set out in the applicable protocol.”
The Arbitrator also expressed reservations concerning how much weight to give to the mitigating factors presented. “It is frequently difficult in cases of this nature to assess whether the mitigating factors offered to explain the misconduct are legitimate or are constructed after the fact in an effort to avoid the penalty imposed.”
However, in this case, the Arbitrator accepted that S.M.’s personal circumstances may have influenced her behaviour on the day in question. The Arbitrator also accepted that her remorse was sincere and her concern for the resident was genuine.
“The threshold question here, given the seriousness of the error and the need to protect vulnerable individuals, is whether the grievor’s employment relationship … can effectively be restored.”
The other key question was whether or not S.M. could be relied upon to follow proper procedures if she was reinstated. The Arbitrator found there was a real likelihood that a “sound” employment relationship could be restored.
The grievance was allowed and S.M. was reinstated.
