X-ray tech suspended after criminal charges laid

You make the call

This instalment of You Make the Call involves an X-ray technologist who challenged his suspension after criminal charges against him were laid.

In June 2016, the Vancouver Coastal Health Authority (VCHA) was made aware that the RCMP was investigating the sexual assault of a patient at one of its hospitals. The alleged perpetrator was a then-57-year-old X-ray technologist at the hospital with nearly 30 years of service. The VCHA didn’t receive any details, but it launched an internal investigation. It asked the worker to co-operate in the investigation, but the worker declined on the advice of his lawyer, since the police investigation was ongoing.

The VCHA decided to implement a safety plan that involved reassigning the worker to non-patient care duties at a different hospital. The worker went along with the plan and proceeded to perform “special project” work for the next 18 months. In addition to receiving his regular pay, he was reimbursed for expenses incurred from the longer commute to the second hospital.

The special project work was below the worker’s expertise level, but it was the only appropriate work available — the VCHA itself described it as a “make work” project to allow the worker to continue working while the police investigation was going on. It often involved duties that others were doing and was given to him a little bit at a time. It eventually became obvious to other employees that something was up, since the work the worker was doing was not actually special project work and it wasn’t meaningful.

In November 2017, the RCMP informed the VCHA that the worker had been charged with three counts of sexual assault involving three different patients, on three occasions in 1990, 1997, and 2001. The VCHA was given no other information on the identity of the patients.

At this point, the VCHA was concerned about the public finding out about the charges, the seriousness of the offences, and the trust issues they raised — as well as the fact the duties the worker was performing had little value. It decided to suspend the worker without pay pending the outcome of the criminal proceedings. Though receiving no pay while on suspension, he continued to be covered by the VCHA’s benefits.

The union grieved the suspension.

Was the suspension appropriate?

OR

Should the worker not have been suspended?

If you said the suspension was appropriate, you’re right. The arbitrator noted that the Supreme Court of Canada had established that work was a fundamental aspect in a person’s life and it was important for people to contribute. However, she noted that if “it is impossible to find alternate work in light of the nature of both the workplace and the crimes charged, it may well be reasonable to hold the employee out of service.”

Though the VCHA continued to allow the worker to work while police were investigating, once charges were laid things were more serious when it came to the worker’s presence in the hospital and the potential harm to the VCHA’s reputation — the laying of criminal charges can be found by anyone on the Internet, the arbitrator said.

The arbitrator determined that the suspension was reasonable and appropriate. As for whether the suspension should be paid or unpaid, she noted that while the VCHA was a large organization that could afford to pay the worker’s salary while on suspension without too much trouble — essentially making it an administrative leave — “it would be at substantial risk of causing serious damage to its reputation.” As an X-ray technologist, the worker worked mostly independently and with often-vulnerable patients. The charges and patients involved raised serious concerns about trust, the arbitrator said.

“There can be few if any offences more serious than a health care worker committing an act of sexual assault on a patient,” said the arbitrator.

As a result, the arbitrator also determined it was reasonable for the suspension to be unpaid, noting that once the criminal matter was resolved the VCHA had the right to conduct its own investigation and determine appropriate discipline.


For more information see:

• Vancouver Coastal Health Authority and HAS (BJ), Re (2018), 291 L.A.C. (4th) 391 (B.C. Arb.).

 

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