Care worker fired for leaving work before relief arrives

Worker asked co-worker to stay until replacement arrived, but co-worker had to leave shortly

An Ontario residential care facility had just cause to discipline an employee for leaving a high-needs resident before a replacement arrived, but not to dismiss the employee, an arbitrator has ruled.

Tasha Kupi was a residential counsellor for Community Living Huntsville in Huntsville, Ont. Kupi worked at a residential home that contained two different facilities and was the primary caregiver for a resident who was severely autistic and had high needs. She also co-ordinated casework and supervised other residents in their daily living.

Kupi was hired as a casual relief worker in March 2007 and became a full-time employee of Community Living Huntsville in April 2008. Her employment agreement included a statement that she must be available to cover emergencies, illness and vacation if necessary, and that “additional hours are an accepted part of the job.” This was particularly important because the resident Kupi looked after was high-needs and couldn’t be left alone. Kupi received positive performance reviews, sometimes exceeding work expectations.

On Feb. 1, 2014, Kupi was working an 8 a.m. to 4 p.m. shift looking after the resident. The resident was particularly anxious and Kupi had to administer medication to him twice.

Near the end of the shift, the care worker who was supposed to take over caring for the resident at the end of Kupi’s shift called in sick. The on-call supervisor asked another care worker to go through the call-in list and then Kupi took over calling people. However, they were unable to find someone to come in. One worker was willing but was unable to find someone to care for his children.

The on-call supervisor didn’t advise Kupi that no replacement had been found but assumed Kupi would stay with the high-needs resident until someone was able to come, since it was against policy to leave such a resident alone.

About 15 minutes before the end of her shift, Kupi thought it was odd she hadn’t heard anything yet. She had plans for the evening and didn’t want to stay, so she asked a co-worker who was working in the other section of the facility to come by and cover for her until his shift was over, which was 4:30 p.m.

She also told him the supervisor wouldn’t make him stay. The call-in list for Kupi’s part of the facility was separate from that of the co-worker’s facility.

The co-worker told Kupi he couldn’t stay late because he had to get his kids, but when he came out of the bathroom shortly after 4 p.m., Kupi had left and was driving away. When no call from the on-call supervisor came he became agitated and called the supervisor. He had no choice but to stay until someone else came in, which ended up being 6 p.m.

The organization was “very surprised and appalled and dumbfounded” when it learned Kupi had left the resident before someone relieved her. Though she asked a co-worker to cover for her, Kupi knew the co-worker couldn’t stay long, It was decided Kupi’s misconduct was serious enough to warrant dismissal. Kupi’s employment was terminated effective Feb. 10, 2014.

The arbitrator found the co-worker had only agreed to stay until the end of his shift and not to cover looking after the resident until someone else arrived. The co-worker’s shift did not overlap with Kupi’s because the co-worker was assigned to a different part of the facility with his own responsibilities, said the arbitrator.

The arbitrator also found the supervisor should have advised Kupi that she was going to have to stay as no replacement had yet been found, but Kupi shouldn’t have left the facility without confirming the situation. The employment agreement made it clear that employees would have to stay late if the need arose.

The arbitrator agreed that Kupi should have been disciplined, but found dismissal was too extreme. Though Kupi didn’t have a long service record, it was clear of significant discipline and she had good performance appraisals. She had also demonstrated commitment to the residents and didn’t leave the resident in question completely alone, even though it was with someone she shouldn’t have asked to take responsibility, said the arbitrator.

Community Living Huntsville was ordered to reinstate Kupi to her employment with a 15-day suspension on her record. However, since Kupi didn’t acknowledge she did anything wrong, the arbitrator declined to award any financial compensation to Kupi for lost employment. See Community Living Huntsville and OPSEU, Local 380 (Kupi), Re, 2015 CarswellOnt 10550 (Ont. Arb.).

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