Not every incident of workplace incident results in dismissal: arbitrator
An Ontario care home worker who was fired for striking a colleague has been reinstated with no compensation for the nearly four years since her termination by an arbitrator.
Sienna Altamont Community Care (SACC) operates long-term care facilities in Ontario for residents who have frequent and intensive care needs. Each resident has an individualized care plan that is updated as needed.
The worker was a personal support worker (PSW) at a long-term care home in Scarborough called Altamont Care Community. She started on a part-time basis in 2012 and became a full-time employee in 2016. Her role as a PSW was to provide personal care to residents and help transfer them to or from their bed. SACC had a lift-and-transfer policy for moving residents, on which the worker received training.
Breach of lift requirement
In April 2018, the worker was suspended for one day for an incident involving a resident. Although the collective agreement had a sunset clause allowing removal of suspension records from an employee’s file after 18 months if there was no further discipline, suspensions for incidents involving residents were not removed.
About one month later, the family of a resident expressed concern over how regularly the resident was receiving showers. SACC reviewed footage from a hallway surveillance camera to see check on staff who entered the resident’s room to provide care.
The investigation found that on three days, the worker transferred the resident from her wheelchair to the shower chair and back without the assistance of any other staff members. According to SACC, the resident’s plan of care was that two people were required to transfer the resident since 2017, so there was a logo at the foot of the resident’s bed indicating the two-person lift requirement and the worker should have been familiar with it because she had cared for the resident for five years.
On May 28, SACC suspended the worker for five days. The union grieved, arguing that there was a second logo on the resident’s wardrobe indicating only one person was necessary to assist the resident once she was out of bed. However, SACC responded that PSWs are supposed to look at the bed for the proper logo indicating transfer requirements. In addition, if there was any confusion as to the requirements, PSWs are to verify it in the resident’s plan of care.
The worker conceded that there were two logos in the room, but she maintained that in the circumstances she could handle the transfer on her own, but the suspension remained.
Health-care workers face workplace violence and harassment, but dismissing it as part of the job would be a health and safety misstep.
Altercation in resident’s room
On Jan. 1, 2019, the worker was tasked with transferring a resident who was severely disabled and required two staff and a mechanical lift to transfer her from her bed. The worker was unable to communicate her needs but was aware of her environment.
The worker asked a registered practical nurse (RPN) to help her transfer the resident, but another PSW said she would help.
However, an altercation between the worker and the other PSW ensued inside the resident’s room. Both exited the room shouting at each other and the worker said she wanted to call the police, although she didn’t. An RPN separated the two and reported the incident to the on-call manager, while two other PSWs entered the room to care for the resident.
Both the worker and her colleague were placed on leave pending the outcome of an investigation, which involved interviewing two RPNs on duty and a written statement from the worker.
The colleague said that the worker was difficult to work with and the worker had confronted her while they were attaching lift connections to the resident’s bed, saying that the colleague had never liked her. The colleague responded by telling the worker to hurry up and, according to the colleague, the worker reached over the bed and slapped her on the arm. The colleague left the room and told an RPN that the worker had hit her, but the worker denied it and an argument ensued.
The worker claimed that the colleague had ignored her requests for assistance and then became angry in the resident’s room, gesturing in the worker’s face. The colleague yelled that she had hit her, so the worker left the room first. She denied hitting her colleague.
Surveillance footage showed the colleague leaving the room first in an agitated state, but the worker maintained that she had left first. The colleague also provided photographs showing scratches on her arm.
An Ontario arbitrator reinstated a long-term care worker who was fired for mistreatment of workers after 19 years of service.
Fired following incident
The other PSW involved in the incident was suspended for three days after apologizing for the incident and the worker was terminated for cause. The union grieved the worker’s termination.
First addressing the five-day suspension, the arbitrator found that the evidence showed a disregard by the worker as to the resident’s lift requirement. Given that the worker had cared for the resident since 2017, it was unlikely that she wouldn’t have been aware of the two-person lift requirement, said the arbitrator in finding that the worker just found it convenient to transfer the resident without assistance. The suspension grievance was dismissed.
As for the incident leading to the worker’s termination, the arbitrator found that the video footage and photographs, along with the colleague’s report and what the RPN’s described supported the likelihood that the worker hit her colleague, although it was not clear who initiated the altercation.
While the colleague was suspended for three days, the arbitrator found that the worker’s conduct was worse. She should not have struck her colleague or continued the argument in full view of the resident or other staff, said the arbitrator, adding that the worker had two relatively recent instances of discipline on her record.
However, the arbitrator noted that not every incident of workplace violence results in discharge and the incident was a heated confrontation between two employees who were acting as they shouldn’t. Although the worker didn’t admit her role or show contrition, the arbitrator found that termination was excessive.
SACC was ordered to reinstate the worker, but without compensation for the nearly four years since her termination to reflect the seriousness of her misconduct.
See SEIU, Local 1 and Sienna Altamont Care Community (Asante), Re, 2022 CarswellOnt 16691.
