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HomeMy WebLinkAboutWELCH-1989-22-12 , , ~ , r. .~ ~.. 1 IN THE MATTER OF AN ARBITRATION BETWEEN: TORONTO EAST GENERAL AND ORTHOPAEDIC HOSPITAL INC. ("the Hospital") and THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO ("the Association) AND IN THE MATTER OF A GRIEVANCE OF RON WELCH BOARD OF ARBITRATION: Ian C. Springate, Chair Janet Slone Taylor, Hospital Nominee Sandra Nicholson, Association Nominee APPEARANCES: For the Hospital: Janice A. Baker, Counsel Betty Burkholder William Jones For the Association: Susan Ursel, Counsel Jim Austin Ron Welch HEARING: August 16, 1989, in Toronto ~ 2 AWARD The Association. and the grievor allege that the grievor was disciplined without cause. The Hospital disputes that the grievor was disciplined. The grievor is a junior medical technologist in the Hospital's microbiology laboratory. He commenced employment with the Hospital in 1961 but left in 1964 to attend university. The .grievor returned to the Hospital in 1968. We were not advised of any concerns on the part of the Hospital relating to his job performance prior to the events giving rise to these proceedings. The microbiology laboratory examines specimens for the presence of various types of microorganisms. Specimens are placed on an artificial growth medium so as to allow any bacteria present to grow to the point where they can be positively identified. This process may take several days. So as to allow a physician to commence an antibiotic treatment program for a patient before this process is completed, a technologist may perform a preliminary assessment of the specimen. This is done by taking a smear from the specimen and examining it under a microscope. By staining the smear the technologist can ascertain whether any bacteria present are gram-positive or gram-negative. By examining the morphology of the organisms, the technologist can also generally reach a ~ 3 preliminary opinion as to whether the bacteria are staphylococci or streptococci. The microbiology laboratory has a number of work stations which are commonly referred to as benches. The general practice is for a technologist to rotate through all of the benches. For some four or five years prior to the events giving rise to these proceedings, however, the grievor did not rotate. Rather, he was permanently assigned to the planting bench where he processed specimens and planted them on a growth medium. The grievor would generally not again deal with the specimen. Instead, after the requisite waiting period the cultured specimen would go to the bench where that particular type of sample was analyzed. If a smear needed to be read, a technologist working on the same bench would do the smear. In urgent situations, however, where a smear had to be done immediately or "stat", it was assigned to the grievor to perform. This work had been allocated to the grievor in 1984 on the understanding that it would enable him to remain proficient in reading smears. In December of 1987 Ms Betty Burkholder, the chief technologist in the microbiology laboratory, set out to do a performance review of the grievor. Ms Burkholder concluded that because of the narrow range of duties being performed by the grievor, she was not able to assess his performance against the ~ i 4 duties outlined in his jOb description. In the result, she decided that the grievor should go on rotation like the other technologists. Ms Burkholder also decided that it would be appropriate for the grievor to be reoriented to the various benches in the laboratory. The grievor commenced this reorientation on February 29, 1988. The reorientation involved the grievor working in various parts of the laboratory, either directly with a senior technologist or having a senior technologist available to assist him if he had any questions. At times emergency situations arise which require that a technician work on a specimen after regular working hours. To deal with these situations a technologist is assigned to standby duties with the understanding that he or she will return to the laboratory if required. If called back to the laboratory the technician will plant the specimen and also do a smear reading. The technologist assigned to standby duty receives standby pay and also callback pay if actually required to return to the laboratory. Since about 1972 this work has been made available to all technologists on a rotating basis. The grievor performed his share of the callback work without any concerns being raised as to his ability to do so. Generally the only technologists not offered standby and callback work are new employees who have not yet completed their orientation. Depending on a new employee's background, this initial orientation may last from three to six , 5 months. On March 29, 1988, Dr. Righter, the director of the microbiology laboratory, requested that the grievor do a stat smear with respect to a sample from an emergency patient and phone her with the results. The grievor did the smear and by telephone advised Dr. Righter that the smear had gram-positive cocci, which was correct, and that he believed they were streptococci, an opinion which proved to be erroneous. The grievor testified that he concluded that streptococci were likely present because he noted gram positive cocci singly, in pairs and in chains. Streptococci are characterized by an arrangement of cells in chains, although single cells, pairs of cells and occasional clusters may also be found. Dr. Righter was not called as a witness. It is clear, however, that she had doubts concerning the correctness of the grievor's opinion that streptococci were present. Presumably Dr. Righter"s doubts arose from her knowledge of the patient's medical history which suggested that the bacteria were likely staphylococci. A technologist is generally provided with a patient's medical history to assist in formulating a preliminary opinion. The medical history is usually in writing, although at times a technologist will receive it orally. The grievor testified that he was quite sure that he had not received ~ 6 the patient's history in writing and had no recollection of having received it orally. Because of her concerrrs, Dr. Righter did not forward the grievor's opinion to the physician treating the patient. Dr. Righter did, however, raise the matter with Ms Burkholder. Ms Burkholder personally reviewed the smear. According to Ms Burkholder, when examining the smear she saw cells arranged in clusters, in pairs and in the odd short chain. She testified that due to the predominance of cells grouped in clusters, which is characteristic of staphylococci, as well as the patient's history, she concluded that the smear justified a preliminary assessment that staphylococci were likely present. Ms Burkholder passed this information on to Dr. Righter, who presumably forwarded it to the relevant physician. There is some conflict in the evidence as to whether Ms Burkholder also discussed the matter with the grievor that day. On April 4, 1988, it was positively concluded from the culture that the grievor's opinion had been incorrect and that the bacteria had, in fact, been staphylococci. That same day Ms Burkholder reviewed the smear reading as well as the final result with the grievor. She also advised the grievor that she was removing him from standby duty until he had completed his reorientation. ~ 7 In giving her evidence Ms Burkholder acknowledged that a preliminary assessment based on a smear might subsequently be proven incorrect by the final culture report. She noted that this could occur fora number of reasons, including the fact that certain things could only be seen from the culture. Ms Burkholder also indicated, however, that in her view the incident in question was not one of those situations. The smear read by the grievor on March 29, 1988 was not presented in evidence. Ms Burkholder did not view the situation as one which called for the imposition of discipline. She was, however, concerned about the grievor's ability to give correct smear results, particularly on callbacks when no senior staff were present. As a result of her concerns, Ms Burkholder decided to remove the grievor from callback duties until he completed the reorientation program which he had started on February 29, 1988. The grievor's reorientation continued until December 1988. In addition to the regular reorientation program, from time to time Ms Burkholder gave the grievor some smears to interpret and then discussed his interpretation with him. On January 18, 1989 the grievor was reinstated to standby and callback duty. The grievor estimated that he lost approximately $2,800.00 as a result of not being able to do standby and callback work. ~ 8 The Hospital does not contend that the manner in which the grievor interpreted the smear on March 29, 1988 was grounds for the imposition of discipline. It does, however, contend that it was an appropriate basis for concern relating to the grievor's ability to properly read smears. The Hospital submits that because employees doing callback work must work alone without supervision, it was reasonable for the grievor to be removed from these duties until the completion of his reorientation. The Association, however, contends that the Hospital's action amounted to a punitive sanction. Most discipline arises from the conscious decision of an employer to discipline an employee for some act of alleged misconduct. Apart from instances where it is believed that the employee's action justified the ultimate sanction of discharge, by imposing discipline the employer generally seeks to deter the employee from engaging in similar conduct in the future. Generally the fact that an employee has been disciplined becomes part of his or her record and puts the employee on notice that further inappropriate conduct will likely result in a more serious disciplinary response. For the least severe form of discipline, namely a written warning or reprimand, this is the only effect of the discipline. Other forms of discipline, however, such as a suspension without payor a disciplinary demotion, also have a punitive impact on the employee in the form of a loss of income. ~ 9 An employer may take action which results in a loss of income to an employee without recording it as discipline on the employee's record. In instances where the motivation is a desire to penalize the .employee for conduct which is within the employee's power to correct, the employer's action will be viewed as disciplinary, even though the employer has not labelled it as such. See: Re Ravco Stamoinq Products Ltd. and Christian Labour Association of Canada (1981), 1 L.A.C. (3d) 298 (Hinnegan). This, however, was not the ~ituation with respect to the grievor. Ms Burkholder did not remove the grievor from callback duties as a penalty aimed at correcting his behaviour. Rather she was motivated by a desire to remove the risk of having the grievor make an error while doing callback work until such time as the Hospital was assured that he could properly perform the work. Action taken by an employer which is not motivated by a desire to punish an employee or to correct misconduct, but which represents a reasonable response to operational considerations, is generally not viewed as being disciplinary, even though it may result in a loss of income to the employee. A not uncommon example of this is the demotion of an employee because he or she lacks the skill or aptitude necessary to perform the work associated with a particular position. See: Re Government of Saskatchewan and Saskatchewan Government Emoloyees' Union (1988), 2 L.A.C. (4th) 423 (Ish). A somewhat different fact situation was ~ 10 addressed in Re Alcan Smelters and Chemicals Ltd. and Canadian Association of Smelter and Allied Workers (1985), 20 L.A.C. (3d) 253 (Hope). That case involved an employee who arrived at work 50 minutes late and was advised that he had been replaced and accordingly there was no work for him. The arbitrator rejected the union's contention that the employer's action in depriving the employee of the opportunity to work for the remainder of the day was an act of discipline equivalent to a one day's suspension. Although the arbitrator in the Alcan Smelters case concluded that on the facts of that case the employee had not been disciplined, he recognized that a determination concerning whether or not an employee has been disciplined involves not only the issue of whether the employer intended to impose discipline, but also the impact on the employee. In this regard, the arbitrator commented as follows: I repeat my agreement with the union that an act can amount to discipline if it has a punitive consequence, whether or not it is characterized or intended by the employer to serve a disciplinary purpose. The arbitrator in Alcan Smelters did not indicate the point at which action not intended to have a disciplinary purpose will nevertheless be viewed as punitive and thus constitute discipline. In our view, in a case such as this that point is reached when the negative impact on an employee ~ 1 1 is greater than what would be justified by a reasonable non-disciplinary employer response to the situation. In the instant case there is no need to make a finding as to the skill level displayed by the grievor on March 29, 1988. It is sufficient that an incident occurred which led Ms Burkholder to in good faith become concerned about the grievor's ability to read smears with the required level of accuracy. This concern led her to temporarily remove the grievor from callback duty. We cannot fault Ms Burkholder in this regard. In matters relating to patient care the Hospital is entitled to take precautionary measures. A difficulty, however, arises from the manner in which the Hospital sought to assure itself that the grievor was able to properly interpret smears. Rather than put the grievor through a concentrated refresher program on reading smears, or rearranging his reorientation program so that for a time it stressed this particular task, the Hospital was content to primarily rely on the general reorientation program. This resulted in the grievor being removed from callback duty for an unduly long period of time. Indeed, he was kept off callback work for some nine months, substantially longer than employees new to the laboratory. We are satisfied that the negative consequences to the grievor of being disqualified from performing callback work for such an extended , 12 period of time were not justified by the Hospital's need to protect its interests and those of its patients. In the result, we conclude that while the grievor's disqualification from doing standby and callback work was initially reasonable, after a time it ceased to be so and became punitive. Being punitive it amounted to a form of discipline. As already noted, there is no claim that the grievor's conduct was deserving of discipline. The evidence led in these proceedings did not address the length of time that it would have reasonably taken for the Hospital to assure itself that the grievor was sufficiently skilled in reading smears. Presumably this would have depended largely on the grievor's skill level at the time. While concerns were raised with respect to the smear reading he performed on March 29, 1988, the evidence indicates that the grievor had previously performed a large number of such readings over an extensive period of time without difficulty. While we cannot say with any accuracy as to how long it might have taken for the Hospital to assure itself that the grievor's skills were up to the required level, we believe three weeks to be a reasonable estimate. The Hospital relies on the fact that after being taken off callback work the grievor performed certain clerical work on an overtime basis for which he was paid as a technologist. This , 13 clerical work was also performed by other technologists but on a more limited basis. To whatever extent this clerical work may have served to mitigate the grievor's lost wages, it will be taken into account in. determining the amount of compensation that he is entitled to receive. The Hospital is directed to compensate the grievor for lost wages resulting from him being taken off standby and callback duties for longer than a three week period, sUbject to the .possible mitigation referred to above. This board of arbitration will,remain seized of this matter in the event the parties are unable to agree on the amount of compensation owing to the grievor. DATED AT TORONTO THIS 22nd DAY OF DECEMBER, 1989. / . .,L:;0':2._.j&7c:Z~-((c.~__---- Ch~r "Sandra Nicholson" ------------------------------- Association Nominee ~ I . r 14 ADDENDUM I agree with the majority award of this board in respect to most of its findings. I would have found, however, that a period longer than three weeks was necessary to properly reorient the employee in reading smears. In view of the lengthy refresher course deemed necessary to reacquaint the employee with the various aspects of the job, I believe that, even if intensive retraining focused on this one aspect of the jOb had occurred, it would have taken longer than three weeks to ensure that the employee properly met the standards of the Hospital in reading smears. Dated at Toronto this 22nd day of December, 1989 "Janet Slone Taylor" Hospital Nominee ,