LPN at Victoria Union Hospital in Prince Albert, Sask., allegedly used excessive force, verbally abused patient with a disability
R.M. was a licensed practical nurse (LPN) with seven years’ seniority and no discipline on his record when he was fired on Nov. 14, 2011.
R.M. was working the night shift on Oct. 13, 2011, when he intervened — uninvited — in care that another nursing team was administering to a disabled patient.
The patient, W.J., was a large, elderly man who was a quadriplegic as the result of an accident. W.J. could speak, but not clearly. He had a reputation as being aggressive. He was known to swear at times when being treated and to flail his arms and legs involuntarily.
L.L. — the nurse who was managing W.J.’s care that night — said R.M. came into W.J.’s room while her team was changing W.J.’s dressing. There were no problems. However, according to L.L., R.M. approached W.J. in a loud and intimidating manner. W.J. told R.M. to "fuck off" and put up his left arm to indicate resistance. L.L. reported that R.M. grabbed W.J.’s arm and held it down. R.M. told W.J. that security would be called and that W.J. would be tied down. R.M. forcefully changed the dressing.
Unprofessional conduct
L.L. reported the incident to the nursing unit manager. There was an investigation and R.M. was fired.
The termination letter alleged "serious misconduct consisting of physical and verbal abuse" and said that R.M. was being fired for patient abuse and unprofessional conduct.
Union disputes facts
The union disputed some of the facts associated with the charges and argued that even if discipline was warranted, termination was excessive in the circumstances. R.M. was a seven-year employee with no discipline on his record. Terms in the collective agreement obligated the employer to follow the regime of progressive discipline as outlined in the contract.
The employer failed to abide by the terms of the contract, the union said.
The arbitrator agreed.
"In Article 10.03 of this Collective Agreement the Employer has agreed to use progressive discipline for improper conduct. Progressive discipline was not used in this case. The grievor did not have a disciplinary record. This was the first instance of improper conduct and it resulted in termination."
The collective agreement allowed for exceptions from the regime of progressive discipline in cases of "gross misconduct," the arbitrator said, but gross misconduct was not defined and the agreement stopped short of mandating termination in such cases.
Serious or gross misconduct on its own does not always warrant termination, the Arbitrator said. All the circumstances must be considered, not just the seriousness of the incident itself.
The incident was serious. R.M. was abusive and disrespectful towards W.J. both physically and verbally, the Arbitrator said.
Discipline reviewable
However, the arbitrator said, the parties had come to no agreement on set consequences for patient abuse. Therefore, the discipline imposed was reviewable.
"Patient abuse, while inexcusable and intolerable, is nonetheless to be placed on a continuum, with consequences to be gauged accordingly.
"In our view, the consequences for patient abuse are not all the same, but are dependent on the nature and circumstances of the conduct as well as taking into consideration factors that would mitigate as well as increase discipline. The correctness of the discipline is that which is fair and reasonable in the circumstances. The circumstances must take into consideration more than the conduct giving rise to the discipline."
The arbitrator said termination was excessive in the circumstances.
"We conclude this for reasons which mitigate against termination, including primarily the grievor’s length of service and clear disciplinary record, as well as comparing the seriousness of the present case to other cases of patient abuse that did not support termination."
The arbitrator said that R.M. had acted in a manner that was self-centered and reckless. However, he did not intend to abuse or cause harm to W.J. That fact did not exonerate R.M., but it did factor into determining the appropriate penalty.
The termination was set aside and R.M. was instead assessed a 10-day suspension without pay and benefits.
R.M. was to be compensated for all pay and benefits lost from the end of his suspension until his reinstatement.
Reference: Saskatchewan Association of Health Organizations Representing the Prince Albert Parkland Health Region and Canadian Union of Public Employees, Local 4777. William F. J. Hood — Chairperson; Andy Friedrich (dissenting) and Peter Tartsch — Members. Michael Phillips for the Employer. Merv Simonot for the Union. Feb. 21, 2013. 31pp.
