'The employer had to go with just-cause termination because it needed to send that message'
An arbitrator has reinstated a Newfoundland and Labrador healthcare worker who was fired for resident abuse.
Although the arbitrator determined that discharge was excessive, it doesn’t mean that the employer did anything wrong in its investigation and termination decision, according to Ruth Trask, an employment lawyer with Stewart McKelvey in St. John’s.
“I think that this is just the way that it works and everything's working as it's supposed to - the employer did the right thing [in terminating for cause],” says Trask. “The arbitrator decided it was a bit too harsh, let's put [the worker] back in the workplace and see if he can stay on the right side of the line from here on out.”
Slapped, swore at resident
The worker, 26, was a temporary full-time personal care attendant (PCA) for Eastern Regional Integrated Health Authority at a long-term care facility in St. John’s. Hired in May 2018, his job duties involved providing personal care to residents. Many residents had dementia, so sometimes the job included exposure to physical and verbal aggression from them.
The worker was trained in techniques to approach difficult residents so there was no safety risk or loss of dignity to the residents, including the “stop and go” technique, which involved stepping back if things became difficult.
On Nov. 29, 2020, the worker was bathing a resident in the facility’s tub room with a licensed practical nurse (LPN) and a nursing student.
The resident had a history of aggression, so two people were required to bathe her – the nursing student was observing and not participating. As the worker was putting pants on the resident, she kicked him in the face. The LPN heard the worker say something like “you bitch” and a slapping sound. She didn’t see the slap, but saw the resident react and stop kicking. The nursing student confirmed that the worker slapped the resident on the leg.
Both the LPN and the nursing student knew that staff were supposed to use the “stop and go” approach, although they understood that it would be difficult while drying and dressing a resident due to the risk of the resident falling. However, they didn’t think that the worker’s actions were acceptable.
The LPN examined the resident afterwards and didn’t see any mark on the worker’s leg. She reported the incident and the worker was suspended with pay pending an investigation.
Eastern Health investigated, including interviews with the worker, the LPN, and the nursing student. The worker admitted to slapping the resident on the leg, saying that he reacted to her kicking him. He said that he couldn’t remember if he used inappropriate language, but he might have.
The investigation determined that there was no injury to the resident, but the worker’s actions breached Eastern Health’s policy for therapeutic care. Given that Eastern Health trusted its PCAs to care for residents who were cognitively unwell and the public trusted it to care for vulnerable residents, the authority determined that the employment relationship was irreparably damaged.
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Just-cause discharge
The worker was discharged for just cause on Dec. 14. The union grieved, arguing that progressive discipline should be used for a first offence.
Despite the union’s challenge, Trask doesn’t see much wrong with the decision to discharge the worker given that there wasn’t much dispute as to what happened.
“The [worker] admitted that he slapped the resident on the leg and didn't initially admit the foul language, but did cop to it later,” she says. “It makes a lot of sense that they decided to terminate, go through the grievance process, and have the arbitrator tell them to take this [worker] back, rather than saying, ‘It’s all right, we'll put you back in the workplace,’ because resident abuse is taken seriously.”
At the hearing, the worker acknowledged that he slapped the resident lightly and use the word “bitch.” He said that the comment was not directed at the resident but was “a spontaneous reaction to the kick in the face.” He also said it wasn’t safe to step away from the resident because she was half-dressed and the floor was wet.
The worker accepted that his behaviour was inappropriate and said that he would apologize if given the opportunity. He said that he didn’t apologize during the investigation because he just wanted to “stick to the facts of what happened.”
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Proper training and investigation
It was clear that Eastern Health trained their employees well, since two others reported the incident, and it acted properly by investigating immediately, says Trask.
“Their investigation appeared to have been complete, because they spoke to all the people that were involved and the only new testimony was the [worker] admitting that he had spoken foul language to the resident - which the other two individuals in the room had said had occurred,” she says. “I don't think there's anything that they missed, and I don't think that the arbitrator saying there should be a one-year suspension instead of a termination was due to any problem during the investigation.”
The arbitrator found that the worker’s physical and verbal abuse of a cognitively unwell resident was “a breach of trust and a fundamental breach of his duties.” He also found that zero tolerance of resident abuse was a reasonable policy, but agreed with the union that discharge for resident abuse was not automatic.
The arbitrator also found that the worker’s actions were “a momentary spontaneous reaction” to being kicked in the face. The slap and the foul language were inappropriate and breached his fundamental duties, but it was an isolated incident that wasn’t premeditated, the arbitrator said.
The arbitrator noted that the worker had a short period of service, but he had no history of discipline and he admitted to slapping the resident in the investigation. He acknowledged using foul language in the arbitration hearing and offered to apologize, which were mitigating factors, said the arbitrator.
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Spontaneous action
“The arbitrator was convinced by the fact that it was a spontaneous response and it is understandable that a person who's kicked in the face has a negative, strong reaction,” says Trask. “And the worker acknowledged on the stand that it was completely inappropriate to a slap a resident - that was the thing for the arbitrator that made him say this is unlikely to be repeated, because it was so spontaneous.”
The arbitrator determined that the trust relationship could be restored given the mitigating factors, although the worker’s actions were a breach of a PCA’s fundamental duties.
Eastern Health was ordered to reinstate the worker with a one-year unpaid suspension on his record “with full redress including compensation and restoration of service and seniority.”
While Eastern Health was entitled to treat the matter as seriously as it did, the reality of unionized workplaces is that the power of reinstatement is there – outside of that context, the worker would not be reinstated, says Trask.
“I think everything about this case - the employer taking a very strong view and terminating, and the arbitrator saying ‘No, a one-year unpaid suspension’ - is all in line with progressive discipline,” she says. “Because if this [worker] does something again in the future, presumably just cause will be available to the employer because it would be a second mark on the record.”
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High standard
Trask emphasized that Eastern Health had to go with the discharge route, even if the arbitration process resulted in lesser discipline.
“The employer came in strong, saying the law says that residents’ needs must be taken very seriously - and in the healthcare sector, that is a significant issue and it's something that the public is very upset about,” she says. “When you have residents that are not able to advocate for themselves, then we need to have an even higher level of trust in the employees that are caring for those individuals.
“And that's why I think the employer had to go with just-cause termination, because it needed to send that message to their workforce, to the public, and to all of the stakeholders - to say ‘We take this seriously and we don't accept this kind of conduct.’ There's no other option.”
See NAPE and Eastern Regional Integrated Health Authority (Wells), Re, 2023 CarswellNfld 80.
