Sleeping workers reinstated despite just cause

Arbitrator found employer had just cause for dismissal but poor management and supervision were partly to blame

Poor management can cancel out just cause

Determining what constitutes just cause for dismissal can often be confusing for employers. What many might think warrants firing may in fact not, especially if the employer hasn’t done proper documentation and disciplinary procedures. And if things weren’t confusing enough, an Ontario arbitrator recently reinstated four employees in a case where there was just cause.

It turned out that though the workers in question were guilty of misconduct serious enough to breach the employer’s trust in them and damage the employment relationship, the employer played a part in creating a work environment that encouraged this type of behaviour. And so, in a way, the decision was in favour of both the employer and the employees: Just cause for dismissal, but also reinstatement.

Four Ontario care workers are getting a second chance at their jobs, despite the fact an arbitrator found their sleeping on the job and dishonesty in denying it was misconduct and constituted just cause for dismissal.

The four employees were personal support workers (PSWs) for a long-term care facility in Toronto run by Leisureworld. Mary Agble, a four-year employee, Sheenel Mathurin, a three-year employee, Naheed Ghyas, a five-year employee, and Marian Henry, a six-year employee, were all PSWs working the night shift. Their job duties involved the personal care of residents and helping them in their daily activities when on the day shift and monitoring residents and the building during the night shift. On night shifts, each PSW was entitled to a one-hour break, the time of which would vary depending on what happened during the night. Leisureworld policy dictated breaks should be taken away from the unit where a worker was stationed, usually in the staff break room. Breaks also had to be completed by 4:30 a.m., which was when workers began their rounds. The facility’s policies also outlined misconduct that was considered serious enough to warrant disciplinary action up to and including termination, such as resident abuse and sleeping while on duty.

Unannounced visits by management found sleeping workers

On Nov. 14, 2008, the facility’s administrator and director of care arrived at the building at 5 a.m. to check how things were going and introduce the administrator, who had only been on the job a short time. They came to the doors of a unit and saw the lights in the nursing station were off and a PSW, who turned out to by Agble, seemingly asleep. She was reclined in a chair with her eyes closed, a sheet under her and a coat on top of her.

After observing Agble for a short period of time, the managers opened the door and Agble moved forward and looked up. She told them she was “doing documentation” and showed them a single piece of paper. They also found a resident who was susceptible to falls around the corner out of Agble’s sight banging a bathroom door.

While the managers checked on the resident, Agble walked quickly down the hallway and they saw her nudge another PSW’s arm and tell her they were there. The second PSW, Mathurin, was sitting in a chair facing away from them. When the managers reached her, they thought she looked “sleepy-faced” and she had a chair with a blanket and a rolled up sheet on it. Mathurin said she had just sat down after finishing her rounds and there was a blanket on the chair because she had just cleaned feces off it. She also said she was sitting there so she could monitor the patient they had just encountered, letting him wander around to calm down.

The managers then went to other units, introducing themselves to staff. When they came to an unsecured unit on the second floor, they saw through the window Naheed Ghyas propped up on two chairs in the hallway outside the nursing station. Her torso was on one chair, her legs on the other, there was a sheet on the chairs and a blanket over her. Her eyes appeared to be closed.

When the managers opened the doors, Ghyas jumped at the noise and she appeared sleepy. The director of care told her to make up her bed and get to work. Later that day, Ghyas called the director and apologized, saying she was sick and had just had a Tylenol when they found her.

Three days later, the administrator returned to the facility with the associate director of care to see if anyone was still sleeping on the job. While on the ground floor at about 4:40 a.m., they saw Henry in the activity room, sitting in a chair with her eyes closed and head down. Her legs were sprawled across another chair.

Henry woke up when they came into the room and she said she was on her break until 4:30 a.m. When they told her it was after 4:30 a.m., she first argued about the time and then said her break went until 5 a.m. She also said she wasn’t in the basement staff room because it was “scary and it smelled.”

Investigative meetings brought denials from employees

Leisureworld held investigation meetings with each PSW. In her meeting, Agble denied sleeping or nudging Mathurin and became aggressive towards management. However, the fact the lights were out and she didn’t have the proper binders didn’t support her claim she was doing documentation and the “nest” she made in the chair didn’t support her claim she had just sat down. Her denials, her sleeping on duty and her failure to monitor the patient around the corner were given as grounds for dismissal.

Leisureworld also decided Mathurin was sleeping on the job and she neglected the patient in the hallway while she was sleeping. It was clear to the administrator she had created a bed for herself and she had been facing away from where the patient was, so her explanation was not believable. Leisureworld decided to terminate Mathurin as it felt the employment relationship was irreparably harmed by her dishonesty and misconduct, particularly since she was a relatively short-term employee.

Ghyas changed her explanation during her investigation meeting. She denied she had apologized for sleeping but rather it was for sitting down, which she claimed she had only done for two minutes. She later said it had only been for a few seconds and there was a sheet on the chair because there was feces on it. Leisureworld felt Ghyas had changed her story after talking to others and found little credibility in her story. It terminated her employment for sleeping on the job and not being honest in the investigation.

After telling the administrator she was taking a break in the activity room, Henry then claimed she was doing paperwork by the light from the hallway. She couldn’t offer an explanation as to why she was late going on her break and why she was still lying on the chair at 4:40 a.m. As a result, she was terminated for sleeping on the job, being insubordinate when the administrator questioned her and being dishonest.

Poor supervision caused ‘culture of disrespect’

The arbitrator found it was reasonable to believe all four workers were sleeping or preparing to sleep when management came to check on them, as they all had made beds for themselves on chairs. Henry’s case was slightly different as the arbitrator found it likely she had simply overslept a few minutes from her break, while the others were on duty.

The arbitrator also found though sleeping on the job was serious misconduct that had the potential to harm residents, the more serious conduct was the dishonesty of the workers in the ensuing investigations. Since none of the workers admitted to any wrongdoing and went so far as to lie to cover up their misconduct, the arbitrator found Leisureworld had sufficient cause for termination of their employment.

“An employer has the right to expect to be told the truth when questioning its employees,” said the arbitrator. “The trust factor in the relationship is the glue that keeps it together. Without trust, there can be no meaningful relationship.”

However, the arbitrator found there was poor supervision of the workers and sleeping on the job was probably not uncommon and records of previous discipline were poorly kept. These poor HR practices and lax supervision likely contributed to a “culture of disrespect for rules and regulations,” said the arbitrator. As a result, the early morning visits to the facility were likely an attempt to catch workers sleeping rather than addressing the problems.

The arbitrator ordered Leisureworld to reinstate all four workers, with their time since dismissal to go on record as an unpaid suspension. Each worker had strict conditions that if they were found sleeping at work again or lied about a resident’s care, they would be dismissed immediately.

For more information see:

Leisureworld v. S.E.I.U., Local 1-Canada, 2010 CarswellOnt 1133 (Ont. Arb. Bd.).

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