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HomeMy WebLinkAbout1996-0588BARTLEY_PEETERS96_ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYF:ES DE L'ONTARJO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 588/96, 589/96 OPSEU # 96F026, 96F027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bartley/Peeters) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE R.J. Roberts Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D. Chiro EMPLOYER Coordinator, C A Negotiation Management Board Secretariat HEARING June 28, 1996 1 AWARD Tills arbItratIOn raIses the questIOn whether the Return to Work Protocol executed by the partIes on March 29, 1996, was breached on June 3, 1996 when the employer reported the two gnevors to the College of Nurses of OntarIo for alleged profeSSIOnal mIsconduct dunng the recent strike The speCIfic provISIOn of the protocol that was alleged to have been breached was artIcle 10.2, WhICh reads as follows lOON 0 Repnsals 10.2 It IS agreed that. (a) there WIll be no dIscIplme taken agamst any employee for any act done durmg the strike up to and mcludmg March 29,1996, (b) neIther party WIll mItlate any gnevance or any claIm m any court or tribunal for damages or other rehef, or any other claIm, for any matter arIsmg dunng the stnke, and WIll dIscontmue any that have been mItIated, F or reasons whIch follow It IS concluded that artIcle 10.2, above, was breached when the report was made to the College of Nurses and as a result the gnevances herem must be allowed. The facts were not III dIspute and were recIted by counsel as follows At the tlme of the mCIdent leadmg to the report to the College of Nurses, March 1, 1996, the two gnevors were employed as 2 regIstered nurses at the WhItby Psychlatnc HospItal Ms Peeters had been employed for over SIX years, WIth a servIce date of August, 1989 Ms. Bartley had been employed for Just over three years wIth a servIce date of January, 1993 Both gnevors had clean records, showmg no prevIOus IncIdents of dISCIplIne or profeSSIOnal mIsconduct. The gnevors were not out on strIke. They were retamed as essentIal workers by agreement between the partIes. At about two o'clock a. m. on March 1, 1996, Ms Peeters and Ms. Bartley sought to place a patIent In locked seclusIOn. Contrary to hospItal polley, they faIled to search the patIent for dangerous artIcles and faIled to post the patIent on constant observatIOn. As a result, the v neIther found nor confiscated a lIghter that the patIent had In her posseSSIOn. Moments after beIng left, the patIent started a small fire In her mattress and sheets. The fire was detected VIrtually ImmedIately The patlent was evacuated and the fire was extIngUIshed. No one was Injured and there was mInImal property damage The employer InvestIgated the InCIdent. ThIS InvestlgatIOn culmInated In a meetmg on May 9, 1996 between the two gnevors and, inter alia, Mr Ronald Ballantyne, the AdmInIstrator of the hospItal. In the course of thIS meetIng, the gnevors were forthrIght regardmg the CIrcumstances of the fire and, In the opmIOn of Mr Ballantyne, conducted themselves WIth honesty, cooperatIOn and Integnty In IdentIcal letters to the gnevors dated May 14, 1996, Mr Ballantyne concluded, "In the context of the mItlgatmg CIrcumstances related to thIS mCIdent, thIS letter serves as non-dISCIplInary counsel regardmg your part m the mCIdent." - " ,) Matters, however, dId not end wIth thIS non-dIsclplmary counselhng On June 3, 1996, Ms. Margaret Kuchmak, the ASSIstant AdmInIstrator PatIent ServIces, at the hospItal, sent IdentIcal letters to the College of Nurses reportmg the roles played by both gnevors m the mCldent of March 1, 1996 Both partIes agreed that m response to these letters the College of Nurses could launch ItS own mdependent mvestlgatIOn that, inter alia, could JeopardIze the nursmg lIcenses of the gnevors When the employer refused to WIthdraw these letters and recommend to the College that no such mvestIgatIOn take place, the gnevors filed the gnevances leadmg to the present proceedmg Counsel for the UnIon urged m hIS pnnclpal submIssIOn that artIcle 10.2 (b) of the Return to Work Protocol, properly construed, expressly prohibIted the employer from makIng such reports to the College of Nurses regardmg any mCldent that arose durmg the stnke Counsel stressed that artIcle 10.2 (b) stated m broad terms that, inter alia "neIther party wIll Imtiate any claim m any tnbunal for damages or other rehef, or any other claim, for any matter arlSlng durmg the stnke " The College of Nurses, he submItted, constItuted a "tribunal" wIthm the meanIng of artIcle 10.2 (b) The reports of Ms. Kuchmak, constItuted "claims" wIthm the meanmg ofartlcle 10 .2(b), he further submItted, smce artIcle 10m Its entIrety was dIrected toward preventmg repnsals, and the letters were capable of placmg m Jeopardy the nursmg hcenses -- and hence the hvlihoods --of the gnevors Counsel for the employer dId not dIspute that artIcle 10.2 (b) of the Return to Work Protocol was 4 mtended by the partles to be broadly construed. He agreed that m lIght of thIs, it was possible to construe artIcle 10.2 (b) m the manner suggested by counsel for the unIon. At the same tlme, however, he argued that artIcle 10.2 (b) should not be construed so as to forbId nurse managers from reportmg mCIdents of unsafe practice to the College of Nurses To do so he submitted, would be to permit the parties to contract out of the reqUlrements of the Ontano Nursmg Act, the Health DIsciplmes Act, and the regulatiOns and gUldelmes of a profeSSiOnal body It was essentIally suggested that thIs would viOlate publIc polIcy In support of thIS submIssiOn, reference was made to OntariO RegulatiOn 799/93 under the Nursmg Act, 1991 ThIS RegulatiOn reads, m pertment part. PROFESSIONAL MISCONDUCT 1 The followmg are acts of professiOnal mIsconduct for the purposes of clause 51 (1) (c) of the Health ProfeSSiOnals Procedural Code 25 F aIlmg to report an mCldent of unsafe practice or unethIcal conduct of a health care prOVider to, 1. the employer or other authonty responsible for the health care prOVIder, or h. the College. In lIght of tlus RegulatIOn, It was submitted, a nurse would be guilty of profeSSiOnal mIsconduct Ifhe or she faIled to report an mCIdent of unsafe practIce to the College of Nurses In connectiOn WIth thIS submIssiOn, It was noted that Ms Kuchmak, who reported the gnevors, was a nurse After havmg given the submIssiOns of the parties senous conSIderatiOn, I conclude that artIcle 10.2 (b) of the Return to Work Protocol should be construed m accordance WIth the submission of counsel for the UnIon. It does not seem to me that to do so would ViOlate publIc polIcy by 5 permittIng the partIes to contract out of provIncIally mandated standards of professlOnal conduct. SectlOn 25 of OntarIo RegulatlOn 799/93 IS phrased In the alternatIve A nurse only commIts professlOnal mIsconduct If he or she falls to report an InCIdent of unsafe practIce to eIther the employer or the College A report to eIther one wIll satIsfy hIS or her professlOnal oblIgatlOn. In the present case, the mCIdent of unsafe practIce InvolVIng the gnevors was reported to the employer The emplover InvestIgated the InCIdent and took the actIon that was deemed appropnate In the cIrcumstances, i.e , the Issuance of a non-dIscIplInary letter of counsellIng to each gnevor No further actlOn was reqUIred under sectlOn 25 of Ontano Regulation 799/93 In fact, It seems that, In general, the only tIme that It would be necessary to make a report to the College of Nurses to satISfy a nurse's professlOnal oblIgatlOn would be when the InCIdent of unsafe practIce resulted m termInatlOn. A document that was entered Into eVIdence at the heanng, the Guidelines for Professional Behavior ofthe College of Nurses, explaInS why It states, III pertment part. Nurses' obhgatlOn to report InCIdents of unsafe practice to an appropnate authonty, IS one of the ways m which [the College's] goal IS achIeved. Generally speakIng, , the appropnate authonty IS the person who has control over, and supervIsion of, the partIcular health profeSSIonal as well as the clIents. [The College] IS the authonty to whom an employer reports the termmatlOn of an employee for reasons of professlOnal mIsconduct, mcompetence or mcapacIty The ratlOnale is that the employer IS no longer m the posItlOn of supervlSlon. ReportIng IS necessary for the protectIon of the publIc When termmatlOn IS not Involved, the employer generally remams m pOSItIon to protect the pubhc through the exerCIse of Its powers of supervISIon. After termmatlOn, those powers of 6 supervIsIOn no longer eXISt. The College of Nurses must then take over the responsibIlIty to protect the publIc by exerclSlng ItS authonty over a nurse's professIOnal status. Accordmgly, the gnevances must be allowed. The only questIOn remammg IS that of remedy Counsel for the umon submItted that an adequate remedy In the umque CIrcumstances of thIS case would be to make two orders The first order would dIrect the hospItal to send a letter to the College of Nurses statmg (1) It wIshes to wIthdraw the reports made by Ms Kuchmak, (2) In the OpInIOn of the hospItal It IS satIsfied that the IncIdents reported by Ms. Kuchmak have been fully and appropnately dealt wIth by the hospItal, and, (3) the hospItal does not WIsh the College to pursue the matter any further because no purpose would thereby be served. The gnevors are valued employees and the hospItal does not wIsh to lose theIr servIces. The second order would dIrect that In the event that the College nevertheless decIded to pursue an InvestIgatIOn based upon the reports of Ms. Kuchmak and subsequently revoked the gnevors' nurSIng lIcenses, the hospItal be reqUIred to offer the gnevors alternatIve employment and/or mcome guarantees at the RegIstered Nurse level for the remamder of theIr workIng careers. In my OpInIOn, the first order requested by counsel for the umon IS appropnate and an order IS hereby dIrected to the hospItal requinng It to complv WIth the terms set forth above The second order, however, seems premature m that It antIcIpates an event that mIght never take place I prefer mstead, to retam JUrISdIctIOn pendmg implementatIOn of thIS award and any potentIal actIOn that mIght nevertheless be taken by the College of Nurses upon the reports of Ms ,- 7 Kuchmak. tJI... Dated at Toronto OntarIo, thIS~ day of July, 1996 - ~ ~