Employer wasn’t aware of nurse’s concerns over bedbugs at patient’s home when it made decision to terminate
An Ontario health care provider’s termination of a registered nurse’s employment was for performance issues and not a reprisal for the nurse’s raising of safety concerns at a patient’s home he visited, the Ontario Labour Relations Board has ruled.
Michael Carr was a registered nurse with St. Elizabeth Health Care HNHB, a provider of home health care services in the Hamilton, Niagara, Haldimand and Brant areas of southern Ontario. Hired on Nov. 20, 2012, Carr provided home services such as wound care, palliative care, infusion care and dialysis care.
In early February 2016, Carr’s supervisor met with him twice to discuss a complaint from one of Carr’s patients. The supervisor asked Carr to engage in a “practice reflection” process — a process recommended by the College of Nurses in which a nurse analyzes and learns about her own professional actions in order to improve. The college notes in its professional standards for nurses that “practice reflection is a professional expectation and legislated requirement.” Carr was expected to analyze how he could have managed his visit differently to avoid the patient’s displeasure as much as possible, even if the patient was difficult.
Carr said he believed he was being blamed unfairly and the patient had anxiety that played a role in the complaint. However, he agreed that he made a mistake with the patient’s medication. The supervisor asked Carr to provide a “practice reflection” essay to explain what went wrong and how it could have gone better, but Carr was agitated and refused to accept responsibility.
A couple of weeks later, Carr submitted a 500-word essay to the supervisor. The supervisor wasn’t happy with it as Carr seemed to only blame the patient for the problems during the visit. Carr also complained that he couldn’t carry certain supplies in his car when visiting patients.
The supervisor was alarmed as she didn’t see any indication that Carr had analyzed why the visit went wrong and what he could have done differently. As far as she was concerned, it wasn’t right to only blame the patient and the essay didn’t meet the requirements of “practice reflection.”
Supervisor had had enough
The supervisor considered other issues she had been having with Carr, including confrontations over scheduling and on-call issues, and being difficult to work with. She ultimately decided Carr’s employment should be terminated and emailed St. Elizabeth’s HR manager, director of nursing and regional director on March 1, saying they should act quickly before another complaint arose.
However, the supervisor realized she couldn’t arrange coverage for Carr’s schedule on short notice and the termination had to be approved by St. Elizabeth’s vice-president, operations, so several days passed.
On March 7, Carr emailed the supervisor expressing concern over bedbugs at a patient’s home he was scheduled to visit. The following morning, Carr emailed the supervisor again saying he would need a full body suit for the visit. A suit wasn’t available but Carr was informed they had gowns, boots, and gloves. Suits were for “extreme” bedbug situations” he was told.
Carr responded that the situation at the patient’s home seemed extreme to him.
Shortly thereafter, Carr emailed St. Elizabeth’s health and safety consultant to say that if he wasn’t provided with a full suit, he would “probably be exercising a work refusal” as nothing had been done about the bedbugs, though they had known about the issue “for weeks.”
Sixteen minutes after Carr’s email to the health and safety consultant, his supervisor emailed him to set up a meeting the following day, March 9. At the meeting, Carr’s employment was terminated.
Employee felt concerns over bedbugs were ignored
Carr filed a complaint, claiming his employment was terminated as a reprisal for his raising safety concerns over the bedbugs at a patient’s house and contemplating a work refusal under the Ontario Occupational Health and Safety Act. He argued St. Elizabeth’s showed reluctance to address the bedbugs issue and when he pushed by considering a work refusal, his termination happened quickly.
The board noted that Carr didn’t actually engage in work refusal. Instead, he sent an email to St. Elizabeth’s health and safety consultant that suggested he “probably” would do so since the organization couldn’t provide the full body suit that he requested. Though this could have been perceived by St. Elizabeth’s as a threat to refuse work — which would also be protected under the act — it was important to note that Carr informed only the health and safety consultant. He didn’t send the email to his supervisor and there was no evidence the supervisor knew about Carr’s suggestion of a work refusal, said the board.
The board found the supervisor was not aware of Carr’s threat of a work refusal and, in fact, the evidence indicated she had made the termination decision a week before Carr raised any issues regarding bedbugs at a patient’s home. In addition, there was no indication she knew about the work refusal suggestion when she met with Carr for the termination meeting, said the board.
“The fact is St. Elizabeth has ...met its onus under (the act) by proving that the decision to terminate Carr was effectively made on March 1 and 2, 2016, some six or seven days prior to the bed bug issue being raised by Carr with (the supervisor) and others,” said the board. “The fact that the final authority needed from (the vice-president, operations) to terminate Carr was only provided on either March 7 or 8, 2016, does not alter the conclusion that St. Elizabeth has proven that its reasons for terminating Carr had nothing to do with, nor was it tainted by, the issue of bedbugs, but rather had everything to do with a history of varying confrontations with his supervisor, leading to a deteriorating relationship.”
The board dismissed Carr’s complaint, finding St. Elizabeth’s terminated his employment for reasons other than his safety concerns and potential work refusal.
For more information see:
