Surrey, B.C. nurse’s breaks too excessive, suspension for ‘serious misconduct’ not

A British Columbia worker’s two-day suspension for taking breaks that were too long on two occasions was not excessive, despite the fact the investigative interview was conducted over the telephone while the worker was sick with COVID-19 symptoms, an arbitrator has ruled.

Rachele Ram was a registered psychiatric nurse who was hired by the Fraser Health Authority in 2017 on a casual basis. In 2018, she began working in a full-time role in the mental health and substance abuse (MHSU) zone at Surrey Memorial Hospital in Surrey, B.C.

She normally worked four 11.5-hour shifts in a row — two days and two nights — followed by four days off. During her shifts, she was entitled to two 30-minute unpaid meal breaks and three 15-minute paid breaks. All the breaks had to be taken separately.

Ram had no discipline on her record until early 2020, when the manager of the MHSU zone received complaints from staff that Ram and another employee were disappearing for long periods of time, leaving them understaffed with patients that had the potential to cause trouble and require stabilization. The complaints started in January and continued into March.

The manager obtained Ram’s access records and found that on two of her shifts, Feb. 14 and March 7, she had been absent for periods of time that exceeded her break entitlement. The manager investigated and interviewed Ram as part of the investigation. However, at the time of the investigation, Ram was off sick with COVID-19 and still had symptoms when the interview was conducted by telephone. Ram wasn’t told about the investigation before the interview, nor was she given any documentation about her schedule to help her recall the specific shifts in question.

The worker mentioned during the interview that she was experiencing COVID-19 symptoms, but she didn’t say she was unfit to participate. A union shop steward was also present and didn’t object.

However, the manager didn’t feel Ram was forthcoming during the interview and felt she was being dishonest about her behaviour — she answered some questions directly and admitted that there may have been other instances when she engaged in time theft, but she was also evasive with other questions. The manager determined that Ram had taken unauthorized absences totalling several hours, which also put patient safety at risk.

The health authority suspended Ram for two days and restricted her from picking up additional shifts on her days off until she returned to her next set of scheduled shifts.

The union grieved the suspension as excessive. It agreed that Ram’s misconduct deserved discipline but argued that the manager’s characterization of her being dishonest in the investigation interview — one of the factors that contributed to the decision to issue the suspension — was unfair, given that Ram was sick during the interview, had no notice of the allegations, and wasn’t given time to review any relevant documents ahead of time.

The arbitrator agreed that some aspects of the interview were problematic — interviewing Ram when she was still sick and not giving her advance notice. However, there was no doubt that the worker’s conduct deserved discipline and she was dishonest with some of her answers during the interview. In addition, neither Ram nor the shop steward objected to the interview.

“…Regardless of my opinion on how the investigation interview was conducted, there is no dispute that [Ram] engaged in repeated acts of dishonesty by engaging in theft of time,” said the arbitrator. “Theft of time is considered to be serious misconduct.”

The arbitrator found that the two-day suspension was relatively short, even with the restriction on picking up additional shifts until Ram’s next scheduled shift. As a result, the mitigating factors weren’t enough to make a determination that the suspension was excessive, said the arbitrator in dismissing the grievance.