No reinstatement for terminated harasser

The hospital reorganized the grievor's unit in a way she disagreed with. She did not treat the new employees, who had lower qualifications, in a respectful way. The grievor was terminated for harassment. The arbitrator found that her conduct was not worthy of termination, but that she should not be reinstated.

A nurse at a regional health centre was fired following allegations that she harassed less qualified nurses who were brought in as a cost-saving measure.

The union grieved.

M.W. was an experienced Registered Nurse (RN) who worked in the dialysis unit at a regional hospital. M.W. was the union representative for the bargaining unit.

In 2010, the employer moved to alter its staffing complement to save money. A number of the RNs who worked in the dialysis unit were to be replaced by Registered Practical Nurses (RPNs).

RPNs — with two-year diplomas — command smaller salaries than RNs, who have four-year university degrees.

The integration of the RPNs into the dialysis unit did not go smoothly. A number of the RNs felt the employer had failed to provide sufficient guidelines, procedures and policies to assist in arranging how the work was to be done in light of the more restricted scope of practice of the RPNs. Consequently, many RNs did not volunteer to mentor the RPNs.

Allegations of bullying

Many of the RPNs felt unwelcome in the unit. A number of them complained that they were bullied and intimidated by some of the RNs. Two RPNs resigned.

M.W.’s name was mentioned in connection with a number of the complaints. In November 2010, the director of the dialysis unit suspended M.W. and then conducted an investigation.

As a result of the interviews she conducted, the director concluded that the RPNs were being subjected to persistent bullying and intimidation and that M.W. was a participant in this misconduct.

M.W. was fired.

The letter of termination referenced the health centre’s “Zero Tolerance for Abuse” policy and its obligation to maintain a safe, healthy and violence-free workplace.

The letter alleged that M.W. was responsible for creating a hostile work environment for the RPNs through bullying and intimidation and that she was guilty of disrespectful behaviour, a hostile attitude and unprofessional conduct.

The employer said that M.W. had engaged in an insidious pattern of intimidation and harassment that warranted discipline. M.W. had not acknowledged her wrongdoing either during the investigation or during the course of the arbitration. Termination was warranted, the employer said. Even if discharge was not found to be the appropriate penalty in the circumstances, the employer said that reinstatement was not a viable option.

The union said that M.W. was being used as a scapegoat to cover for the employer’s poorly implemented staffing moves.

The union said that workplace harassment was a serious matter that should not be trivialized. The alleged incidents — even if they occurred — were not worthy of discipline and certainly did not amount to cause for discharge. The employer’s application of its “Zero Tolerance” policy was selective and self-serving, the union alleged. While the employer referenced the policy to support its case for M.W.’s discharge, it did not follow up on similar allegations against other RNs.

The Arbitrator found that M.W. engaged in intimidating and bullying conduct in the workplace. While M.W. denied the substance of most of the charges, the Arbitrator found that the consistency and numbers of reports of belittling gestures and bits of passive aggressive behaviour supported the allegations.

Subtle misbehaviours not amenable to progressive discipline

While discipline was warranted, termination was too severe a penalty in the circumstances, the Arbitrator said.

However, the regime of progressive discipline was not particularly well suited to dealing with this kind of situation, the Arbitrator said.

“In this matter the grievor’s actions were extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour. Single discreet incidents however are more easily dealt with in the arbitral context than the allegations of subtle behaviours over a period of time because the former gives an arbitrator the ability to evaluate each incident, and to apply the principle of progressive discipline in determining the appropriate penalty, whereas a series of subtle behaviours does not afford the same opportunity.”

The Arbitrator said that other RNs may have been involved in the impugned behaviour. The Arbitrator said too that the lack of guidelines and the lack of managerial supervision may also have contributed to the turmoil on the unit.

In other circumstances, the Arbitrator said that reinstatement would be appropriate, but not in this case.

The ability to be able to work together effectively as a team was a necessary component of the job both for the effective functioning of the unit and to ensure proper patient care, the Arbitrator said.

In this case there was evidence of an irrevocable breach of trust between management and M.W.

“The grievor’s actions were a direct challenge to management’s authority to staff the Dialysis Unit as management saw fit. Her behaviour at the very least contributed to destabilization of an entire department, and contributed to the resignation of at least two RPNs.”

The employer was ordered to pay M.W. damages in lieu of reinstatement.

Reference: Peterborough Regional Health Centre and Ontario Nurses Association. David K.L. Starkman — Sole Arbitrator. Lynn Harnden for the Employer. Sandy Donaldson for the Union. May 7, 2012. 46 pp.

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