Hearsay not enough to dismiss nurse for alleged sexual assault

Employer relied on flawed investigation that didn’t produce real evidence of assault

A Saskatchewan employer’s investigation wasn’t thorough enough to find that a unionized senior citizens' home nurse harassed a resident, an arbitrator has ruled.

The nurse worked at Santa Maria Senior Citizens Home in Regina. Originally from the Philippines, she obtained her nursing degree and worked as an occupational health and safety nurse for 10 years there. She moved to Regina in 2009 where she started a position at a hospital before joining Santa Maria in
February 2010.

The nurse’s duties included transferring, lifting, bathing, feeding and portering residents as well as helping them with any other needs on three different floors.

On July 14 and 15, 2011, the nurse was working on the third floor of the home. On one of those days, she heard a bell in the late morning while she was at the nurses’ station. She went to the room corresponding to the bell and notice light and saw a resident — referred to as "SG" — crying. Another resident was near the door of SG’s room in a wheelchair.

The nurse asked SG why she was crying and SG responded that the other resident was bothering her and she wanted the resident out of her room. The nurse wheeled the other resident out of the room and returned to sit beside SG on her bed to comfort her. The nurse asked what SG wanted to do and SG said nothing and thanked her. SG hugged the nurse and the nurse left the room. The nurse didn’t remember seeing SG for the rest of the day as she didn’t require much assistance and the nurse was busy feeding residents in her group at lunch.

SG had lived with her cousin’s daughter for almost 40 years and was like a mother to her. She began staying in the senior citizens home after being diagnosed with a brain tumour in April 2011 that affected one side of her body. It was agreed that if SG became too anxious or depressed she would move back in with her cousin’s daughter.

It had been decided SG would be taken home around July 17 because she missed her family. Two nights before she was to go home — which happened to be July 15 — SG’s cousin’s daughter came to visit her. The daughter found SG upset and crying. When asked what was wrong, SG said when she went for lunch that day, someone had cornered her with her walker and took stuff from her room, so she had called for help. SG said someone came to help her, took her for lunch, and brought her back to her room. However, after lunch, she was still upset and that person put her hand down the front of her blouse and fondled her, then put her hand down by her crotch. The person then said “I love you granny” and left.

SG said the person who did this was Filipino and her name was Christini with an “i” at the end of the name.

The daughter didn’t immediately report this to Santa Maria because she didn’t want to cause any problems for SG during her last two days. After she took SG home on July 17, SG was still upset so she called the health region to report the incident.

The health region contacted an independent investigator to carry out an investigation into SG’s complaint. He interviewed SG three times and she didn’t specifically identify who the culprit was, though she said the person was about five-foot-seven. She also changed her story, saying her breasts were “pinched” instead of “fondled.” When asked, SG acknowledged that she hugged the nurse after the incident with the other resident in the wheelchair.

The investigator interviewed the nurse with two representatives from the Canadian Union of Public Employees (CUPE). The nurse was caught off guard by the allegations but felt she hadn’t done anything wrong. Because she still had some language issues, she didn’t fully understand what the interview was about, and when the CUPE representatives explained it to her, she was shocked.

The nurse said she hadn’t helped SG at lunch time and the only time she saw her was in her room when she answered the bell.

The investigator concluded that, “on a balance of probability,” the nurse was guilty of sexually harassing SG. Santa Maria management concluded the report substantiated the complaint against the nurse and, since it had a zero-tolerance policy for resident abuse, it terminated her employment on Sept. 9, 2011.

CUPE contested the dismissal, arguing there wasn’t sufficient proof of the assault allegation and the investigation was flawed.

Arbitrator Anne M. Wallace found Santa Maria’s cause for dismissal was reliant completely on hearsay evidence, of which much was questionable, because there was no direct evidence of the sexual assault. The lack of direct evidence put more onus on the investigation to dig deep, but Wallace agreed with CUPE that it was flawed.

Wallace found the investigator didn’t check all the employees who were working on the floor that day to see if there were any other possible culprits. He also didn’t look at Santa Maria’s records of SG, which would have revealed she suffered from anxiety, panic attacks, depression and macular degeneration in her eyes, as well as had recent cataract surgery. No witnesses other than SG were interviewed, or anyone else who was working on the floor that day.

In addition, the investigator didn’t show SG a photo of the nurse to see if she recognized her or the fact the nurse at five-foot-two would have had difficulty harassing SG as she reported.

“The investigator never considered the implausibility of SG’s description of the event nor did he do anything to test out if the alleged assault could even have occurred the way SQ said it did,” said Wallace.

Wallace also noted the investigator interviewed SG three times — during which there were inconsistencies — and the nurse only once, making it unfairly weighted against the nurse. SG’s description of the assault was never questioned, said Wallace.

Wallace found there was insufficient evidence to show the nurse sexually assaulted SG and Santa Maria shouldn’t have relied on an incomplete investigation that didn’t uncover anything other than hearsay evidence. Santa Maria was ordered to reinstate the nurse.

For more information see:
Santa Maria Senior Citizens Home Inc. and CUPE (Mantes), Re, 2015 CarswellSask 893 (Sask. Arb.).

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