Hospital concerned about public perception
When a British Columbia hospital found out about an X-ray technologist who was being investigated by the RCMP for sexual assaults of patients, the worker was put on duties that included him having no contact with patients.
The technologist, who was 59 years old, had almost 30 years of seniority with the employer.
But in November 2017, the RCMP advised hospital management that the technologist (whose name was not provided), was being charged with three separate sexual assaults, that allegedly occurred in 1990, 1997 and 2001 on three different patients.
Since the technologist had already spent the previous 18 months doing work that was well beneath his skill level and the formal charge could mean that his identity would be made known as this might harm the reputation of the Vancouver Coastal Health Authority (Integrated Medical Imaging), the employer suspended the worker without pay. But the technologist’s medical benefits were still made available.
During his time at the “make-work project” of 18 months, argued the employer, the technologist was often performing duplicate work or piecemeal jobs.
The employer said that other employees began to suspect the reason given — that he was working on a “special project” — was not true.
The union, Health Sciences Association (HSA), grieved the suspension and argued it should have been issued with pay.
The HSA also said that the technologist was currently working part-time (32 hours) at $11.55 per hour, and this represented a serious economic hardship to him.
The union said because the employer was a large regional health authority, it cannot argue that paying the technologist — for not performing productive work at the hospital — could be considered to constitute undue hardship.
Arbitrator Joan McEwen upheld the suspension.
“Based on the evidence before me, I am satisfied that, upon learning of the laying of the three charges of sexual assault on patients, the employer acted reasonably in suspending the grievor,” said McEwen.
“A trust relationship between hospital staff and patients is vital. X-ray technologists work independently and often without supervision, dealing with vulnerable patients. The number of charges and patients in the case at hand give cause for grave concern about trust.”
The employer’s decisions to first move the worker to a non-patient area was deemed to be prudent and it did not infringe upon the worker’s rights, said the arbitrator.
“As noted, while the employer had worked assiduously to accommodate the grievor’s interests for the 18 months preceding that event, it had come to realize, well before then, that the so-called ‘project’ was in fact nothing more than a ‘make-work’ project. Further, the fact that the laying of criminal charges is information available on the internet played a significant role in the employer’s determination that the grievor’s work should be suspended,” said McEwen.
“The employer went the extra mile in honouring the grievor’s dignity as well as his interest in maintaining the security of his employment and livelihood ,” said McEwen.
“For a full 18 months (from notice of the RCMP investigation to the laying of the charges), it cobbled together the best package of duties possible in the circumstances — including adapting and modifying them as circumstances required. As well, it paid for expenses incurred as a result of his commuting a greater distance from his home,” said McEwen.
Reference: Vancouver Coastal Health Authority and Health Sciences Association. Joan McEwen — arbitrator. Arvin Asadi for the employer. Stephen Hutchinson for the employee. April 17, 2018. 2018 CarswellBC 1320
