Employee awarded damages in lieu of reinstatement
The improper reporting of a complaint at Extendicare’s long-term care facility in London, Ont., resulted in dismissal.
Anna Schurmans was fired after she failed to follow proper procedure for registering a complaint. Schurmans was working as a full-time activity aide when a resident’s son approached her with concerns about his mother’s care.
The woman in question, referred to as Resident X, was in the final stages of life. Her son had been advised of her condition and, as a result, was in the facility on a regular basis.
Resident X’s son was at the facility on Oct. 28, 2015, and approached Schurmans to voice concerns about the staff. He had been called hours before and been notified his mother was actively dying, but when he arrived at the facility, she was in stable condition. He told Schurmans he had doubts about the nurse providing care for his mother.
Schurmans later repeated this information to her co-worker, Margaret Johnson. Johnson then relayed this information to Helen Klus, the nurse providing care to Resident X. Klus entered a note into Resident X’s progress report stating the resident’s son had voiced concerns about her care and made a complaint to Schurmans.
The note prompted an inquiry the following day. Management spoke first to Klus and then to Schurmans. Schurmans was asked to formally submit the complaint — as is required by company policy — so it could be properly addressed.
Schurmans declined, stating Resident X’s son had spoken to her in confidence and that he had just been stressed out and was venting, rather than making a formal complaint or attempting to have any employee disciplined.
The employer continued to investigate the matter and subsequently held a meeting with Schurmans and Margaret Glasgow, union steward for Unifor Local 302. Schurmans was reminded in the meeting that she was obligated as an employee to report any and all concerns to the appropriate management staff. Because of her failure to report the incident initially and because of her subsequent refusal to provide a report when asked to by the employer, Schurmans was terminated.
Unifor filed a grievance on Shurmans’ behalf requesting she be returned to work. The union argued the onus is on the employer to demonstrate Schurmans was acting with intent to harm the employer’s interests or the interests of its residents, and there was no evidence to suggest that intent.
The union also submitted that Schurmans was a longstanding employee with 12 years of seniority.
Her only previous discipline was a five-day suspension, the union argued, and dismissal for an unrelated incident did not logically follow in the application of progressive discipline.
The employer, however, argued the essential trust between employee and employer was damaged beyond repair. If just cause for dismissal was not proven, the employer submitted the circumstances were not an appropriate case for reinstatement.
Arbitrator Christopher White found Schurmans guilty of workplace misconduct but did not support a finding of just cause for discharge.
“Notwithstanding that conclusion,” White said, “this is not a case in which reinstatement is appropriate.”
Considering the mitigating circumstances as well as the employer’s ongoing concern about Shurmans’ honesty and judgment, White ordered an award of damages in lieu of reinstatement.
White considered Schurmans’ hourly rate, value of benefits and several contingencies in determining damages. While the parties will need to perform an exact calculation, White said Schurmans was entitled to either her statutory entitlements as owed to her under the Employment Standards Act or the sum of $11,089.65, whichever is greater.
Reference: Extendicare and Unifor Local 302. Christopher C. White — arbitrator. Peter Vanderkloet for the employer, Robert Buchanan for the union. Feb. 24, 2016.