The grievor had been charged with drug trafficking. She was originally suspended with pay but, when a trial date was not imminent, without pay. The arbitrator found that the hospital had no cause either to suspect the grievor of other misconduct or to fear loss of public trust.
A nurse employed at a hospital in a Women and Children’s program was suspended without pay after the employer learned that she had been charged with possession and trafficking of cocaine.
Jane Doe (J.D.) was hired by the Cambridge Memorial Hospital to work on a casual basis in the hospital’s family and child health unit. J.D. moved to full time status when the program evolved into the Women and Children’s program in 2008. She had about 10 years’ service when she was suspended in November 2011.
On Nov. 7, 2011, the local newspaper reported a significant drug bust in the community.
About $5 million worth of cocaine was seized. Marijuana and marijuana plants valued at about $275,000 along with $132,000 cash were also recovered. Nine people were arrested and charged with drug related offences, including J.D. and her husband, who was identified as a member of the Hell’s Angels.
J.D. was initially suspended with pay. However, in February 2012, that paid leave was converted to an unpaid leave when the employer learned that J.D.’s case would be held over for an indefinite period of time.
The union grieved, arguing that the forced leave amounted to a suspension without just cause.
Before the Arbitrator, the employer argued that it was entitled to impose a non-disciplinary suspension.
The hospital said it was a public institution and that it was properly concerned with maintaining the public’s trust. Hospital employees were required to operate in an environment where drugs were available and where they were administered and where patients may be under treatment for drug dependency.
The hospital said that allowing J.D. to continue working while the charges were pending could erode the public’s trust.
Moreover, the hospital said that it should not be forced to bear the burden of paying J.D. for a long period of time while she awaited trial. There was a point where it was reasonable to convert a paid leave to an unpaid suspension, the employer said. After three months, the employer said it had reached that point.
The union said there was no evidence that J.D. had engaged in any improper activities in the workplace. Nor had the employer presented any evidence to show that the charges against J.D. had any negative effect on either the hospital’s reputation or on J.D.’s ability to do her job. Even in the event of a conviction on trafficking charges, the Nurses’ Code of Conduct did not require an automatic prohibition against working as a nurse, the union said. Under the Charter of Rights and Freedoms, every accused person has the right to be presumed innocent. J.D. was entitled to that presumption, the union said.
Presumption of innocence
Phillips Cable, decided in 1974, reversed a trend that saw workers who were awaiting trial on serious criminal charges routinely suspended, the Arbitrator said.
Phillips Cable reset the balance between the employer’s interest in maintaining efficient and orderly operations and the employee’s interest in maintaining the presumption of innocence. Phillips Cable requires employers to establish facts to show that it would be detrimental to the employer to retain an employee who is awaiting trial:
“Accordingly, the company must establish that this risk of guilt presents a substantial and immediate hardship to itself or to its workers, and that this hardship cannot be practicably met by anything other than the suspension of the employee.”
Ontario Jockey Club developed a five-part test to assess an employee’s level of risk to his or her employer, including a requirement that the employer investigate the nature of the charges to some extent in order to make a genuine attempt to assess the level of risk presented by an employee. The test also requires employers to show that they have considered the possibility of mitigating any risks posed by the employee through enhanced supervision or reassignment.
The Arbitrator ordered J.D. reinstated.
The Arbitrator did not follow the line of cases such as Oshawa General Hospital or Hamilton Regional Cancer Centre, which accept that the mere existence of a drug-related charge is sufficient to justify an employee’s suspension.
In this case, the employer had little information about the facts supporting the charges or what role J.D. allegedly played in the matter.
The Arbitrator said that the hospital had not demonstrated that the charges against J.D. were sufficiently detrimental to require her removal from the workplace.
“In the circumstances of this case, I do not see how the charges themselves, without any other evidence, are sufficiently detrimental to the hospital so as to justify the suspension of the grievor for a significant amount of time while she is awaiting trial… there is no evidence that the grievor is either working under the influence of any narcotic or sharing it with patients or co-workers. In addition, there is no evidence that she is stealing drugs from the hospital. There is no evidence that other staff or patients would be unable or unwilling to deal with the grievor. I do not think that in these circumstances, the potentially innocent employee… should bear the entire cost of waiting for the outcome of the prosecution of the charges against her.”
The Arbitrator rejected the employer’s assertion that the notorious nature of the charges alone was sufficient to justify the suspension because of the potential for damage to the employer’s interests and reputation.
Given that J.D.’s husband was also charged and named in the media as a suspected gang member, there was no getting away from the notoriety regardless of whether or not J.D. was even charged, the Arbitrator said.
The employer had to show that the charges against J.D. were an impediment to the hospital’s ability to run an efficient and safe operation. The employer did not satisfy that requirement.
Reference: Ontario Nurses’ Association and Cambridge Memorial Hospital. Norm Jesin — Sole Arbitrator. Rod Dobrucki for the Union. Brent Labord for the Employer. Nov. 28, 2012. 18 pp.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.