Suspension appropriate even before resolution of legal proceedings: arbitrator
Health-care organizations must hold a high standard of conduct for employees due to the trust the public holds in them and the vulnerability of the patients they treat.
That’s a big reason why an arbitrator determined the Vancouver Coastal Health Authority (VCHA) was justified in suspending an X-ray technologist without pay — after police charged him with the sexual assault of patients — due to the risk to its reputation and the seriousness of the charges.
In June 2016, the VCHA was made aware the RCMP was investigating the sexual assault of a patient at one of its hospitals. The suspect was a 57-year-old X-ray technologist with nearly 30 years of service. The VCHA didn’t receive any details, but it launched an internal investigation to learn more about the circumstances. It asked the worker to co-operate in the VCHA’s investigation, but the worker declined on the advice of his lawyer, since the police investigation was ongoing.
The VCHA decided to implement a safety plan that involved reassigning the worker to non-patient care duties at a different hospital. The worker went along with the plan and proceeded to perform “special project” work for the next 18 months. In addition to receiving his regular pay, he was reimbursed for expenses incurred from the longer commute to the second hospital.
The special project work was below the worker’s expertise level, but it was the only appropriate work available — the VCHA described it as a “make-work” project to allow the staffer to continue working while the police investigation was going on, while keeping him away from vulnerable patients.
The project often involved duties that others were already performing, and assignments were given to him a little bit at a time. It eventually became obvious to other employees that something was up, since the tasks the worker was completing were not special project work and weren’t meaningful.
In November 2017, the RCMP informed the VCHA the worker had been charged with three counts of sexual assault involving three different patients on three occasions in 1990, 1997 and 2001.
At this point, the VCHA was concerned about the public finding out about the charges, the seriousness of the offences and the trust issues they raised — as well as the fact the duties the worker was performing had little value. It decided to suspend the worker without pay pending the outcome of the criminal proceedings. He continued to be covered by the VCHA’s benefits.
The union grieved the suspension, arguing that an unpaid suspension pending the outcome of the criminal proceedings was unfair. It said the VCHA was a large organization that could afford to pay the worker if it didn’t want him in the workplace, and holding the worker out of service without pay was risk-free for the VCHA.
The arbitrator noted that the Supreme Court of Canada had established that work was a fundamental aspect in a person’s life and it was important for people to contribute in their jobs. On the other hand, if “it is impossible to find alternate work in light of the nature of both the workplace and the crimes charged, it may well be reasonable to hold the employee out of service.”
Though the VCHA continued to allow the worker to perform alternate duties while police were investigating, once charges were laid, the situation became more serious regarding his presence in the hospital and the VCHA’s reputation. The suspension was reasonable to protect the VCHA’s reputation and patients, said the arbitrator.
As for whether the suspension should be paid or unpaid, while the VCHA was a large organization that could afford to pay the worker’s salary while on suspension — essentially making it an administrative leave until the legal proceedings were resolved — “it would be at substantial risk of causing serious damage to its reputation,” said the arbitrator.
As an X-ray technologist, the worker worked mostly independently and with often-vulnerable patients. The charges involved were related to patients and the worker’s job duties, and they raised serious concerns about trust, according to the arbitrator: “There can be few, if any, offences more serious than a health-care worker committing an act of sexual assault on a patient.”
As a result, the arbitrator also determined it was reasonable for the suspension to be unpaid, noting that once the criminal matter was resolved, the VCHA had the right to conduct its own investigation and determine appropriate discipline.
For more information, see:
• Vancouver Coastal Health Authority and HAS (BJ), Re (2018), 291 L.A.C. (4th) 391 (B.C. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.