Nurse claimed interaction was consensual but receptionist claimed sexual harassment
This instalment of You Make the Call involves an employee who was accused of inappropriate sexual behaviour against a co-worker outside of work.
The 55-year-old employee was a registered nurse at The Hamlets at Penticton, a long-term care facility in Penticton, B.C., operated by Osprey Care. He started there in February 2009.
When a young female receptionist started working at the facility in September 2010, the nurse began to flirt with her. The receptionist didn’t like it, but since she was a new employee she wasn’t sure how to handle it. On Oct. 4, 2010, the nurse slapped her backside as they were talking in the facility. She asked him to stop and he said he would. However, he did it again the next day. The nurse denied both incidents and only admitted to flirting with her.
On Oct. 6, 2010, the receptionist went home after work. A few hours later, when the nurse’s shift ended, he appeared at her door. He claimed she had called him at work and told him to come over — saying she was attracted to him and “couldn’t control herself” — but the receptionist denied this and said she was surprised to see him.
The nurse pushed the door further open, walked in, grabbed her, pushed her against the couch and put her hand on his buttock. The receptionist testified she told him to leave and she was going to bed, but he picked her up, took her to the bedroom and got on the bed with her. He tried to kiss her and put his hand inside her pajama bottoms, then lifted her shirt and grabbed her breast. The receptionist struggled and got to her feet, but the nurse lifted her up and pressed her against him. This time when she asked him to leave, he did, telling her not to tell anyone at work.
The nurse acknowledged most of the things that happened, but claimed it was consensual and she hugged and kissed him back. He also said he was there only to say good night to her and not to have sex. He believed she wanted a “relationship outside of the workplace.”
The receptionist called the police and the nurse was charged. Osprey Care felt that since the incident happened outside of the workplace, it would wait to see what happened with the charges. The nurse was suspended until the criminal proceedings were completed.
After discussion with the owner, Osprey Care decided to conduct its own investigation after all. It interviewed both the receptionist and the nurse and became aware of a consent agreement the nurse had with the College of Registered Nurses of B.C. based on a previous incident with another employer. The nurse refused to reveal information about the agreement and initially refused to answer any questions regarding the impending charges.
In December, the charges were dropped for a lack of evidence and the nurse finally answered some questions, but continued to insist the incident was consensual and refused giving information about the consent agreement. Osprey Care decided the receptionist was telling the truth and dismissed the nurse for cause on Oct. 21, 2011.
You Make the Call
Did Osprey Care have just cause for dismissal?
Was dismissal too much for off-duty misconduct for which charges were dropped?
If you said there was just cause for dismissal, you’re right. The arbitrator found the receptionist was much more credible than the nurse, especially considering she called the police, made a statement and reported the same story in the employer’s investigation.
The arbitrator also found it was not a private encounter that had nothing to do with the workplace. The nurse admitted he flirted with and attempted to establish a relationship with the receptionist at work, he patted her backside at work and the only time they had contact was at work. Therefore, the sexual harassment began at work, said the arbitrator.