Minor abuse of patient not grounds for termination, arbitrator rules
It pays to be nice, a long-term care worker has learned.
The personal support worker at a long-term care facility in Bruce County, Ont. was fired after her bosses judged her interactions with two residents as abusive.
Only referred to as "B.G.," the staffer’s job was to physically assist residents with the tasks and activities of day-to-day living.
The staff complement at the Gateway Haven Home for the Aged consisted of three personal service workers for every 25 residents. Many of those residents suffer from mental, psychological and physical deficits and challenges, including dementia and difficulties with mobility.
B.G. had racked up 19 years’ seniority when she was terminated in July 2012.
In January 2012, three staff members reported concerns to management about B.G.’s treatment of a resident referred to as "J."
They reported witnessing B.G. deal with J in a brusque and familiar manner, persistently badgering the resident about the need to drink prune juice in order to address a problem with constipation.
Those who observed the interaction between the two on that day saw B.G.’s tone and behaviour towards J escalate over the course of her shift — to the point where it became threatening.
‘Unprofessional’
The situation boiled over when J became overwhelmed and tearful. One staff member — a physiotherapist — made a report to management. She described the conduct as unprofessional and unlike anything she had seen in 20 years.
Gateway Haven has an extensive prevention of abuse and neglect policy. It defines and differentiates kinds of abuse and provides graduated disciplinary measures to respond to resident abuse. Staff are well aware of the policy and receive training on it annually, according to the arbitrator’s decision.
So it’s not surprising the employer investigated the allegations. While the employer accepted that B.G. had no intention to be hurtful, it accepted the testimony of the staff members and concluded B.G. had committed a "minor to moderate" offense of "verbal/emotional/psychological abuse," according to Gateway Haven’s policy.
She was given a five-day suspension, and cautioned about her manner and demeanour. She was also warned any further incidents of abuse would result in her termination.
But six months later another incident was reported. This time, facility staff reported B.G. was observed to be acting impatient and short-tempered. She was alleged to have addressed a resident in a loud, aggressive voice and even slammed some of the resident’s personal items down on a desk.
B.G. was fired. The local 2458 chapter of the Canadian Auto Workers (CAW) union grieved both the five-day suspension and the termination on her behalf.
The employer said it maintained a policy of zero tolerance towards abuse as mandated by the Long-term Home Care Act, 2007. The two residents involved were frail and vulnerable — neither was considered to be abusive or to present significant behavioural challenges.
Credibility played its part. None of the witnesses had any motive to fabricate evidence or to embellish their stories, therefore their testimony was taken very seriously. On the other hand, the employer said, B.G. displayed a certain lack of candour and her memory of events was selective. She had not apologized, nor had she shown any remorse.
The employer maintained its policy against abuse was reasonable and it had been properly applied against B.G., so termination was warranted.
The union argued the employer acknowledged B.G. never intended to harm anyone. Of particular concern was that the employer’s investigation was one-sided, as they did not conduct interviews with the two residents involved nor other staff members.
Culminating incident misinterpreted
CAW went on to say B.G.’s handling of J’s circumstances may have been less than perfect, but the employer had not met the burden of establishing that abuse had occurred. Thus, the five-day was excessive, the union said, going as far as to call it a "gross injustice."
The incident in question was minor, unsubstantiated and did not warrant the termination of a 19-year veteran of the company.
Arbitrator Paula Knopf judged the testimony of the employer’s witnesses as more credible and agreed B.G. had treated J in a disrespectful, demeaning and inappropriate manner.
Knopf said B.G. should have known her badgering and over-anxious treatment of J presented a threat to J’s dignity as well as to her emotional and medical well-being. The arbitrator agreed that constituted abuse. However, she deemed the five-day suspension excessive. In light of B.G.’s 19 years of full-time service, Knopf decided to reduce the five-day suspension to just three.
She also deemed the termination to be excessive, considering the circumstances. That the employer viewed the second incident as fuel to automatically justify termination was misplaced, Knopf added.
In this case, the principle of a culminating incident did not create an automatic formula which equated to "one more mistake equals termination," the arbitrator said. The purpose of the principle of the culminating incident was to allow an arbitrator to consider an employee’s entire record in order to make a judgment about the appropriateness of termination.
With respect to the allegations in the second case, the arbitrator also accepted that B.G.’s conduct was inappropriate and abusive. However, the scale of abuse was minor and the incident was short-lived, spontaneous and unintentional.
"While it is true that a single, momentary and involuntary act of abuse could wipe out two decades of hard work, the situation with (the second resident), even with the grievor’s previous record of one recent similar event, does not warrant discharge."
B.G. was ordered reinstated.
Reference: The Corporation of the County of Bruce Gateway Haven Home for the Aged and CAW Local 2458. Paula Knopf— Sole Arbitrator. Chris Eames for the Employer. Kim Yardy for the Union. March 28, 2013. 29pp.