Even when an employee is found to have engaged in serious misconduct, it seems to be increasingly difficult to justify termination for cause. Decision makers will consider many extenuating circumstances to justify ordering compensation in lieu of notice or reinstatement. This trend is aptly demonstrated in a series of recent decisions in the health care sector. Even terminations for patient/resident abuse are sometimes overturned.
(i) Physical Abuse of Patient
In the recent case of Saskatchewan Association of Health Organizations Representing the Prince Albert Parkland Health Region v Canadian Union of Public Employees, Local 4777 (PDF), a licenced practical nurse was found to have entered a paraplegic patient’s room uninvited. Despite the fact the team caring for the patient had the situation under control, the nurse grabbed the patient’s raised arm and pinned it to the bed forcefully. The nurse told the patient that he was stronger than him. He then threatened to tie the patient down and call security.
Arbitrator William Hood acknowledged that the nurse’s actions were demeaning and disrespectful. It constituted patient abuse. But the employer’s decision to terminate the nurse was nonetheless found to be excessive. A ten day suspension was ordered instead.
(ii) Non-Physical Patient Abuse
In the case of Gateway Haven Home for the Aged v CAW Local 2458 (PDF), an Ontario arbitration decision, a staff member was found to have continuously badgered and been aggressive with a frail 91-year-old, female resident. The resident suffered from diabetes and dementia. On an occasion when the resident was constipated, the employee called her lazy and made her stay on the toilet. The employee wouldn’t help the resident return to her bed. Another staff member eventually had to intervene.
Another complaint about the same employee was lodged. A fellow staff member reported seeing the employee using loud and aggressive tones with another resident who suffered from dementia. That resident was told to “hurry up”. The employee then grabbed the resident’s purse and a book from her walker and slammed them down on a table.
The employee was then terminated.
Arbitrator Paula Knopf determined that the continuous badgering and over-anxious treatment of these residents constituted abuse. But she still decided that termination was not warranted. In support of this conclusion, the arbitrator cited the following mitigating factors: the employee’s 19 years of service, the absence of harm to the residents involved, the spontaneous nature of the events, the employee’s lack of malice, and the “mild to moderate” nature of the abuse.
Lessons for Employers
These cases are but two examples of a trend that sees employers in the health care sector sometimes being overturned when strictly enforcing zero-tolerance patient abuse policies. Such decisions seem to dilute the effectiveness of efforts to address and prevent patient and resident abuse. Some forms of abuse are treated as less serious than others. Instead of holding employee caregivers to high standards of accountability, some of these decisions seem to downplay the seriousness of unacceptable behavior.
This is a trend that does not seem isolated to the health care sector. It is seen, to varying degrees, across both the public and private sectors in Canada. Employers need to be aware of the high threshold that must be met in order to successfully establish just cause to terminate.
Before making the decision to terminate an employee for cause, employers must investigate thoroughly. Consider whether it has been made clear to employees that the conduct in question is a termination offence. It is also important to consider all of the relevant circumstances, including potential mitigating factors such as those discussed above.