For a healthcare worker, leaving a disabled client alone in the bathtub is not simply an error in judgment warranting discipline, but an act of culpable neglect calling for termination, says a recent arbitration award.
A group home worker with 12 years’ experience caring for live-in clients with physical and developmental disabilities, A.H. had worked both full- and part-time jobs in two of the employer’s group homes. Her job was to assist clients with daily living activities. This included supervising personal hygiene and performing other duties associated with the established, written lifestyle plans of the clients. Her performance appraisals were satisfactory.
Transferring back and forth between the two residences, A.H. received orientation and training with respect to the policies and procedures in effect at each residence. Orientation covered all aspects of working with clients, including bathing procedures. Following the death in 2006 of a resident who drowned after being left alone in the bath tub, a memo was circulated to all staff that set out new guidelines covering bathing procedures and the explicit direction that “no one is to be bathed unattended.” These instructions were also included in the updated individual client profiles and signs to this effect were also posted in the bathrooms.
Cigarette break
After witnessing two incidents where A.H. left a severely disabled, non-ambulatory client alone in the tub — once to take a cigarette break and once to perform housekeeping tasks — a coworker reported A.H. to her supervisor. A.H. was first suspended then terminated. The union grieved.
The union acknowledged that A.H. had made an error in judgment and agreed that caregivers are to be held to a high standard. That standard, however, is not perfection the union argued. Moreover, A.H. had demonstrated concern for the client by draining the bath down to a level where she felt the client could not drown and she held the honest belief that he was safe. Even if discipline was warranted, termination was excessive in the circumstances said the union.
The Arbitrator disagreed. “In this case, I have no difficulty concluding that there exists just cause to discipline the grievor. The grievor engaged in conduct that was substantially below the standard of care expected of a person charged with the duty of care for a vulnerable person and contrary to clear directions of the employer.”
Noting the actions and specific directions of the employer in the wake of the 2006 drowning incident, the Arbitrator said this was not a case where the judgment of a healthcare worker came under scrutiny because she chose one option over another. “The grievor was required to perform general care duties as determined by the employer and contrary to the prescribed bathing instructions, she did not remain with [the client] at all times while bathing him …”
Uniform rule
Her actions revealed a “profound misunderstanding” of her role, the Arbitrator said. “The direction that clients are not to be left unattended in the bath tub was put in place for the safety of clients. It is intended to remove all discretion from the caregiver and to prevent, through the adherence to a uniform rule, the tragic consequences that occurred previously when a challenged and vulnerable person drowned in the bath tub.”
A.H.’s long service and clean record were not sufficient to mitigate the offense. Neither was the Arbitrator moved by A.H.’s expressions of remorse. Her evidence, said the Arbitrator, amounted to “self-serving rationales” concocted to excuse or minimize her conduct. “After consideration of all the circumstances, I have concluded that the interests of the grievor do not outweigh the interests of the employer, the public and most importantly, the interests of [the client] and all other similarly challenged and vulnerable persons residing in the employer’s group homes. Given the seriousness of the misconduct, and the importance of deterrence to prevent any future incidents of this nature, I am not persuaded that the grievor’s aggregate service of 12 years and good record is sufficient to warrant interference with the penalty of discharge.”
