HomeMy WebLinkAboutGriffin 23-01-10IN THE MATTER OF AN ARBITRATION PURSUANT TO
THE LABOUR RELATIONS ACT, 1995
Between:
WAYPOINT CENTRE FOR MENTAL HEALTH CARE
(“the Hospital”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 329
(“the Union” or “OPSEU”)
RE: DOROTHY GRIFFIN – DISCHARGE GRIEVANCE
ARBITRATOR: Peter Chauvin
APPEARANCES FOR THE HOSPITAL:
Andrew N. Zabrovsky Legal Counsel
Diane Harbin Legal Counsel
Avleen Banwait Student-at-Law
Robert Walton
Karen Maisonneuve
Jonathan Kytayko
Nicola Robitigh
APPEARANCES FOR THE UNION:
Alison Vanek Union Representative
David Vajda
Justin LeGros
Dorothy Griffin
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AWARD
What This Case Is About
[1] The Grievor was a Nurse working in the Hospital’s Brébeuf Program for Regional Forensics (“the
Brébeuf Program”). The Hospital is in Penetanguishene, and was formerly known as the Mental Health
Centre Penetanguishene. The Hospital’s Brébeuf Program is Ontario's only high security mental health
program that detains in custody persons who have been found to be not criminally responsible (NCR) for a
criminal charge due to a mental disorder (these persons are referred to in the legal system as “an accused”).
[2] These accused are subject to the criminal justice system, through the Ontario Review Board (the
ORB). The ORB is a tribunal established under the Criminal Code of Canada to oversee the ongoing care
of such accused persons. The ORB can issue Dispositions Ordering that an accused be detained in custody.
[3] The Brébeuf Program’s only patients are those accused persons who have been Ordered by the ORB
to be detained at and treated by the Brébeuf Program. The Brébeuf Program provides detention and
treatment programs for those accused, including:
• Psychiatric assessment to determine criminal responsibility
• Psycho-social assessment for treatment planning and risk evaluation
• Nursing, psychiatry and psychology treatment and therapy
• Treatment for recovery and to reduce the risk for recidivism
• Pharmacological treatment
• Behaviour management
• Social rehabilitation programs
• On-going risk assessment
• Annual reports to the ORB and monitoring of Dispositions
[4] JB is one such accused. In 1997 JB was found to be not criminally responsible, due to a mental
disorder, on a Criminal Code charge of aggravated assault. Due to this, JB has been detained in custody
since 1997. As of 2019, JB had been detained in custody in the Hospital’s Brébeuf Program for several
years. At the Hospital, JB is referred to as a patient of the Hospital.
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[5] The ORB has issued several Dispositions regarding JB. The most recent Disposition was dated May
28, 2019. It Ordered that: (1) JB must be detained at the Hospital; (2) the Hospital must provide for the
health care of JB; (3) the Hospital is allowed to take JB on outings into the community, provided she is
accompanied by two Hospital staff (the Hospital refers to these as “an escort” or “an outing”), and; (4) the
Hospital must inform the local police when it is taking JB on such an outing.
[6] Some accused patients who are detained at the Hospital may have the goal of rehabilitating to the
point that they can return into society, with some degree of independence. However, that is not the present
goal or expectation for JB. Rather, due to JB’s mental and physical conditions, the present expectation is
that JB will be detained in the Hospital indefinitely, with no plan to re-integrate her into society.
JB’s Health Conditions
[7] In December 2019 JB was 67 years old. She was a “brittle” or “complicated” diabetic. As such, her
blood sugar levels had to be carefully monitored. She was on diabetic medications, including two or more
types of insulin. JB was also on a strict low-calorie 1800 calorie/day diabetic diet.
[8] Given that JB's diet was strictly regulated and restricted by the Hospital, JB was “food motivated”.
This means that JB craved foods that she was not allowed to eat, and that she could be easily motivated and
manipulated to do things, if she was offered food that was not on her diabetic diet. Also, it was common
for JB to get irritated and upset if she was denied food.
[9] Also, JB had very few teeth, and wouldn’t wear dentures. Accordingly, she could not chew her food
very well. As such, she is on a Doctor Ordered “chopped food diet”. This means that her food must be
chopped into small pieces, so that it will be easy to swallow. If this is not done, JB is at a risk of choking.
[10] JB had other mental, physical and behavioral conditions as well. JB was described as being
“simple”. JB could read and write a little, had a limited vocabulary and poor handwriting. JB had cataracts,
and wouldn’t wear glasses. As such, JB was referred to as being “almost blind”. JB had kidney problems.
JB had moods, and could become upset, unstable, agitated, aggressive, abusive and difficult to manage,
sometimes for no apparent reason, or if her blood sugar was not properly managed.
[11] JB was not capable of taking care of herself. She could not manage, on her own, her diabetic
condition, including the monitoring of her blood sugar, and the proper taking of her insulin injections and
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pills. Nor could she follow, on her own, her diabetic diet. Failure to properly manage her diabetes
medications, and failure to follow her diabetic diet, could cause very serious health consequences for JB.
JB could also not manage, on her own, her other mental, physical and emotional health conditions.
[12] To summarize, JB had a quite diminished physical, mental and emotional state. As such, JB was a
“vulnerable patient”. JB was dependant on the medical judgment and expert care of the health care
professionals at the Hospital who were responsible for caring for her.
[13] This is evidenced by the fact that the Office of the Public Guardian and Trustee had issued an Order
stating that JB was incapable, pursuant to the Health Care Consent Act, of managing her own treatment,
and placing the responsibility of managing all of JB's health care needs upon the Hospital.
[14] The Hospital provides JB with around the clock supervision and care, including monitoring her blood
sugar multiple times per day, and ensuring that JB is properly receiving her diabetic medications. The
Hospital also prepares and provides JB with a specifically formulated diabetic diet, that must be strictly
followed, and monitors JB to ensure that she is following the diabetic diet.
[15] JB’s physical, mental and emotional health care needs were extensive enough that she had a one-
on-one relationship with one Nurse, who was referred to as JB’s “primary Nurse”. The Grievor was JB’s
primary Nurse. This means that of all of the health care professionals at the Hospital, the Grievor had the
primary relationship with JB, spent the most time with JB, knew the most about JB’s physical, mental and
emotional conditions and needs, and bore the primary responsibility for caring for JB’s complex needs.
[16] The Grievor had a good relationship with JB. The Grievor was kind and compassionate to JB, and
generally provided JB with good care. The issue is not whether the Grievor normally cared for JB in an
appropriate manner.
[17] Rather, the issue is whether, on December 22, 2019, the Grievor exercised poor judgment and
engaged in misconduct when she took JB to a cannabis dispensary, so that the Grievor could purchase CBD
lotion as a Christmas present for her husband (“the outing”). I will now summarize only the most relevant
facts regarding the outing.
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The Outing – A Summary
[18] Seven witnesses, including the Grievor, testified at the arbitration regarding what happened during
the outing. The arbitration extended over numerous days. Having carefully considered the testimony of the
witnesses, the documents that were entered into evidence, and the extensive arguments presented by the
parties, I find that the following happened in connection with the outing.
[19] On Sunday, December 22, 2019, the Grievor wanted to go to a cannabis dispensary called Sessions
Canada (“Sessions”) in Collingwood, where the Grievor wanted to purchase CBD lotion for her husband
as a Christmas present. Christmas was only three days away.
[20] The Grievor wanted to go to Sessions during working hours. So the Grievor had to take a patient
with her, and call it an outing. As stated earlier, JB’s ORB Disposition allowed for outings. As JB’s primary
Nurse, it was commonplace for the Grievor to take JB on outings. As such, the Grievor decided to take JB
on an outing to Sessions, so that she could purchase the CBD lotion. Without JB, the Grievor would not
have been allowed to leave the Hospital to go to Sessions.
[21] However, two staff members must be present on all outings with JB. The Grievor asked another
Nurse to accompany her on the outing. This Nurse did not think that Sessions was an appropriate place to
take JB, and declined to participate in the outing. However, the Grievor eventually found a Patient Care
Assistant (PCA), Ms. Marchand, who agreed to go on the outing.
[22] It was a Sunday, so there were no managerial persons on the Unit. Rather, there was a bargaining
unit Nurse who was assigned to be the Charge Nurse for the shift. The Grievor had to inform the Charge
Nurse that she was taking JB on an outing to Sessions. When the Grievor did this, the Charge Nurse also
did not think that Sessions was an appropriate place to take JB, but did not feel that he had the authority, as
being only the Charge Nurse, to outright prohibit the Grievor from going. So the Grievor went on the outing,
at 12:15 PM.
[23] On the way to Sessions the Grievor brought JB to a Dairy Queen for lunch, where JB had a burger,
fries and 1.5 strawberry sundaes. The lunch was about 1000 calories, much higher than that allowed under
JB’s diabetic diet. This would cause JB to have high blood sugar, unless it was properly and promptly
managed. High blood sugar can cause adverse health and behavioural problems for JB.
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[24] Also, the Grievor did not chop up the hamburger patty or the fries. This created a risk of choking for
JB, and was a violation of JB’s chopped food Order.
[25] At Sessions, the Grievor and JB browsed the store for about 30 minutes, and then the Grievor
purchased CBD lotion. The Grievor testified that she felt that there was no harm in taking JB to Sessions,
because she didn't explain to JB where they were going, why they were at Sessions, or what they were doing
at Sessions. The Grievor testified that “JB didn’t even realize or understand that she was at a cannabis
dispensary, or what I was buying”. The Grievor testified that JB enjoyed the ride to Collingwood and back,
and that that justified the outing.
[26] Upon returning to the Hospital at about 4:15 PM, JB was upset and agitated. Another Nurse took
JB’s blood sugar level. During this, JB yelled at the Nurse. Such agitation can be a sign that JB’s blood
sugar is too high, and required treatment. This behavior was known for JB. The two blood sugar readings
were very high readings, and required that the Duty Doctor be called. The Grievor called the Duty Doctor.
[27] When the Duty Doctor came, the Grievor only told the Duty Doctor that JB had just had a snack of
applesauce and a diet pop at about 4:30 PM when JB had returned to the Hospital. This was true. However,
the Grievor did not also tell the Duty Doctor that JB had also had the high calorie Dairy Queen lunch at
about 1 PM, which was very relevant to the blood sugar issue that the Duty Doctor had been called in to
treat. The Grievor’s failure to provide this information could have had an effect upon the actions that the
Duty Doctor took for JB, and could have had negative health consequences for JB.
[28] Finally, the Grievor transported the CBD lotion in the Hospital van with JB, and then brought the
CBD lotion into the Hospital and discussed it with other persons at the Hospital. There are also other less
relevant aspects of the outing that I have not included in this summary, but will discuss later in this Award.
The Termination Letter
[29] The Hospital conducted an investigation, and concluded that the Grievor did not demonstrate an
understanding of the seriousness of her misconduct, but rather attempted to justify her actions, by stating
that cannabis “is the societal norm”, that the mayor was on TV and was promoting the grand opening of
Sessions, and that going to Sessions was like going to an art gallery or museum. Most importantly, the
Grievor stated that, in any event, the outing was OK, because JB “had no idea where she was”.
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[30] The Hospital also concluded that the Grievor displayed a lack of judgment and a lack of remorse for
her actions, and that the Grievor’s actions created a safety risk for JB. The Hospital discharged the Grievor
on January 31, 2020, citing the following 14 Grounds:
1. You planned the escort to Sessions
2. You attended Sessions
3. You used Hospital I.D. (nametag) to gain access to Sessions
4. You brought the patient into Sessions
5. You purchased CBD Lotion at Sessions
6. You brought CBD Lotion onto the Hospital unit
7. You did not take a GO-bag or Hospital issued cell phone on the outing
8. You used a Hospital van to transport the CBD Lotion
9. You used the patient outing for personal use
10. You neglected to manage JB’s diabetic condition by:
a. Leaving unit prior to ensuring JB’s blood sugars were appropriately managed
b. Providing a meal to JB that exceeded the caloric count in the diet ordered for JB
11. You neglected to follow the chopped diet ordered for JB
12. You provided inadequate information to the Duty Doctor upon return when reporting information
regarding JB’s high blood sugar
13. You did not report the issues of the outing to the Clinical Manager
The Issue in Dispute
[31] The Hospital submitted that the Grievor’s actions were so improper and so lacking in judgment, on
numerous Grounds, that it had just cause to discharge of the Grievor. The Hospital noted that it also
discharged the Patient Care Assistant who went on the outing with the Grievor, and also gave the Charge
Nurse a one-day suspension for not stopping the Grievor from going on the outing.
[32] The Union acknowledged that the Grievor’s actions were somewhat lacking in judgment, but
submitted that they were not so lacking in judgment that it warranted her discharge. Rather, the Union
submitted that the Grievor should have only been given a 10-day suspension.
[33] For the reasons that follow, I find that the Grievor's actions were very lacking in judgment, and
amounted to serious misconduct, and that her discharge was warranted. To understand that conclusion,
more factual context and detail is required, which will be provided.
[34] I will analyze each of the 14 Grounds that the Hospital has put forward in support of its discharge. I
will address those 14 Grounds in a manner similar to how that the Union grouped them in its closing
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argument. I found the Union’s grouping of the 14 Grounds, and how it addressed those Grounds, to be very
appropriate and useful.
[35] The Union acknowledged that nine of the Grounds were technically breached, but submitted that no
discipline, or at the least substantially less discipline, should have been imposed for having technically
breached those nine Grounds. For the other five Grounds, the Union submitted that there was no breach of
those five Grounds, so no discipline should have been imposed for those five Grounds.
[36] In reviewing each Ground, I will determine whether any discipline was warranted for that Ground.
If discipline was warranted, I will state whether that breach warranted “minor” discipline or “major”
discipline. At the end of the Award, I will consider cumulatively all of the minor and major discipline that
was warranted, in determining whether discharge was ultimately warranted.
THE GROUNDS THAT THE UNION DOES NOT DISPUTE
1. The Grievor Planned the Escort to Sessions
2. The Grievor Attended Sessions
4. The Grievor Brought JB into Sessions
[37] The Union does not dispute these three allegations. However, the Union submitted that these three
allegations do not amount to any wrongdoing, and therefore cannot be Grounds for any discipline. I do not
agree with this. Rather, I find that the Grievor’s decision to take JB to Sessions was a very serious lack of
judgment and misconduct that warrants major discipline. My reasons for this are as follows.
[38] The purpose of the community outings is to get the patient into the community. Sometimes it is to
enjoy a fun community event. Other times, it may be to go shopping for something that the patient wants.
On these latter outings, the Nurse may also buy something. However, the outing is for the patient. The
outing must be for the benefit of the patient, and not for the benefit of the Nurse.
[39] Having heard the testimony of all of the witnesses, and having reviewed all of the documents, I
have come to the conclusion that, and unfortunately, on this occasion the Grievor allowed self-interest to
cloud her judgment, and that she planned and took JB on the outing to Sessions for her own benefit, rather
than for the benefit of JB. I come to this conclusion for a number of reasons.
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[40] It was Sunday, December 22, 2019, only three days before Christmas. The Grievor readily
acknowledged that she wanted to buy CBD lotion for her husband, as a Christmas present. She could get
the CBD lotion that day at Sessions, during her working hours, but only if she took a patient with her to go
to Sessions, on an outing. The Grievor could not go to Sessions alone. She could only leave work if she
was taking a patient on an outing. JB could serve as that patient.
[41] The Grievor knew that JB could be motivated to do things by offering food as a reward. The
Hospital submitted that the Grievor enticed JB into going on the outing by telling JB that she would take
her to Dairy Queen for lunch on the way. Such a Dairy Queen lunch would have been a very desirous meal
and motivator for JB. The Hospital’s theory is consistent with some of the facts of this case, and is a
plausible theory. However, I am not satisfied that the Hospital has in fact proven its theory. The Hospital
did not call any witness to specifically testify that they had in fact seen or heard the Grievor entice JB to go
on the outing by promising her a lunch at Dairy Queen. And the Grievor denied that she did this.
Accordingly, I am not prepared to accept the Hospital’s theory.
[42] However, it is clear that other Nurses thought that it was inappropriate for the Grievor to take JB
on an outing to Sessions. Another Nurse would not go on the outing for this reason. The Charge Nurse also
said that the Grievor should not take JB on this outing. Both of these should have forewarned the Grievor
that this outing was inappropriate. However, the Grievor still went on the outing with JB. The Charge Nurse
was disciplined for not stopping the Grievor from going on the outing. Ms. Marchand, the Patient Care
Assistant who went on the outing, was discharged.
[43] If the Grievor simply wanted to take JB on an outing, she could have taken JB to numerous other,
and common, outing destinations. However, the Grievor instead decided to take JB to Sessions, a cannabis
dispensary in Collingwood. This was novel. There had never been an outing to a cannabis dispensary before.
[44] It is clear that the Grievor's decision to take JB to Sessions was her own decision. It was not a
decision that was made by someone else and placed upon her. And it was not a spur of the moment decision.
It was premeditated, and even challenged by two of her peers. The Grievor acknowledged that she wanted
to go to Sessions to buy CBD lotion as a Christmas gift for her husband. I find that the choice to specifically
take JB to Sessions on that day, December 22, was motivated by the Grievor’s self-interest to buy CBD
lotion, rather than to go on an outing that would be for JB’s benefit.
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[45] The Grievor testified that she took JB to Sessions because that weekend was Session’s grand
opening, and that it would be a fun event that JB could enjoy. I find that that was not the real or primary
purpose of the outing. Most tellingly, in defending her decision to take JB to Sessions, the Grievor testified
that it was not inappropriate to take JB to Sessions, and there was no harm in it, because she didn't explain
to JB where they were going, and while at Sessions, JB didn’t understand where she was, what was being
sold, or what the Grievor had purchased. This indicates that the Grievor knew that the outing to Sessions
was inappropriate. If the outing was for JB’s benefit, the Grievor would have explained all of these things
to JB. In the absence of explaining any of these things to JB, there was no benefit to JB in going to Sessions.
However, there was clearly, and admittedly, a benefit to the Grievor in going to Sessions.
[46] Also, JB was not going to buy anything at Sessions. The Grievor testified that she did not bring JB
to Sessions so that JB could buy anything, and that she would not have allowed JB to buy anything. Again,
this clearly indicates that the purpose of the outing was to enable the Grievor to buy the CBD lotion as a
Christmas present. It was not to provide JB with a meaningful and beneficial outing.
[47] The Union noted that there was no policy or rule regarding the types of outings that were
appropriate, and no process for obtaining approval for a specific outing. This is true. However, the Grievor
is a Nurse, and the primary Nurse for JB, who is a vulnerable patient. The case law is clear, which will be
discussed later, that Nurses are skilled practitioners who must exercise their judgment wisely and
appropriately. Nurses are held to a high standard of care. The Hospital is entitled to expect its Nurses to
exercise good judgment in caring for the patients, including in deciding what outings are appropriate for
the patients, even if there are no specific policies or rules regarding that. The Union acknowledged this,
stating that notwithstanding that the Grievor did not breach any specific policy or rule, the Grievor may
have nevertheless made an error in judgment in taking JB to sessions. I find that the Grievor made a serious
lack of judgment in connection with the outing, which warrants major discipline.
[48] The Union has also noted that JB simply enjoys going on van rides, and that on the outing JB was
able to enjoy a 40-minute van ride each way to and back from Collingwood. The Union submitted that this
is sufficient to render the outing appropriate. I do not agree. If the outing was for JB’s benefit, the Grievor
could have simply taken JB for a long van ride. JB may have enjoyed that long van ride. However, in
choosing to specifically take JB to Sessions so that the Grievor could buy CBD lotion, the Grievor rendered
the outing to be for her own self-interest and benefit, thus rendering the outing inappropriate and improper.
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[49] The Union similarly submitted that it was appropriate to take JB to Sessions, because it was the
grand opening of Sessions. The Union submitted that it was a “community event”, that was promoted on
TV by the mayor of Collingwood, and was therefore similar to numerous other community events that the
Grievor had taken patients to in the past, such as: the Elvis festival in Collingwood; ice sculpture festival
and Winterama in Barrie; the Orillia car show; the cranberry festival; the maple syrup festival; the
steampunk festival; dirt bike races; the Simcoe County museum; county fairs; going to the beach; going
swimming; going on a hike, and; openings of grocery stores, boutiques and other stores.
[50] I am not satisfied that going on these outings is analogous to going to Sessions. Again, the Grievor
didn't explain to JB where they were going or why they were at Sessions, and at Sessions JB did not
understand where she was and what was being sold. This lack of knowledge and lack of participation should
not be the case with the other outings referred to by the Union, that were for JB’s benefit. Rather, this lack
of knowledge and lack of participation quite clearly shows that there was no benefit to JB in going to
Sessions. Instead, the outing was for the Grievor’s benefit. Accordingly, regardless of whether the outing
to Sessions can be analogized to those other outings, the distinguishing, and culpable, factor is that the
outing to Sessions was for the Grievor’s benefit, and not for JB’s benefit, and that renders the outing to be
improper and deserving of major discipline.
[51] Finally, the Union noted that as of 2019 cannabis had been made legal, and submitted that there
was therefore nothing improper about taking JB to Sessions. However, when asked whether it would be an
appropriate outing to take JB to a liquor store, which is also legal, the Union acknowledged that that may
not be appropriate. However, the Union submitted that it might be appropriate to bring JB to the grand
opening of a winery, where some wine could be sold. I am not satisfied that these two situations are
analogous. Also, in any event, the most culpable aspect of this outing is that it was for the Grievor’s benefit,
and not for JB’s benefit, and that renders the outing to be improper and deserving of major discipline.
[52] I do not come to my conclusion that the discharge was appropriate because the Grievor purchased
CBD lotion, which is a cannabis product. Rather, my conclusion is based on the fact that the Grievor
planned and took the outing for her own personal benefit, rather than for JB's benefit, and then engaged in
further misconduct in connection with the lunch at the Dairy Queen and the communications that the
Grievor had with the Duty Doctor upon returning to the Hospital. I would come to the same conclusion,
that discharge is appropriate, if the Grievor had taken JB to Walmart, only for the Grievor’s self-interest,
only so that the Grievor could purchase a Christmas present she needed, and if the other misconduct had
occurred in connection with the outing to Walmart as well.
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3. The Grievor Used her Hospital ID to Gain Entry to Sessions for JB
[53] The Union does not dispute this allegation, but submitted that this Ground does not warrant any
discipline. The Union noted that staff are required to visibly wear their Hospital ID badge on outings, and
that it is normal for staff to show their Hospital ID to gain entry to an outing location for themselves and
the patient as well. Also, the Union noted that Sessions did not record or store the Grievor’s Hospital ID
badge information, and that there was no evidence of any reputational damage to the Hospital. I find that
this allegation, on its own, does not warrant discipline.
5. The Grievor Purchased Cannabis While on Duty
[54] The Union does not dispute this allegation, but noted that it is common for a Nurse to purchase
things while on outings with patients. This is true. When Nurses take patients on an appropriate outing,
such as to Walmart to purchase some clothing for the patient, the Nurse may also purchase something, as
an ancillary activity. However, what distinguishes this case is that the outing to Sessions was not an
appropriate outing. Rather, it was an inappropriate outing. It was planned by the Grievor, to be for the
Grievor’s benefit, to purchase the CBD lotion. The purchase of the CBD lotion was not an ancillary activity.
Rather, it was the reason for the outing. The outing was only for the Grievor’s benefit, and it was not for
JB’s benefit. That renders the outing and the purchase to be improper, and deserving of major discipline.
6. The Grievor Brought CBD Lotion into the Hospital
8. The Grievor used a Hospital Van to Transport the CBD Lotion
[55] The Union does not dispute these allegations, and acknowledged that the Grievor’s actions
breached the Hospital’s Policy against transporting a prohibited substance in a Hospital van, and bringing
that prohibited substance into the Hospital. However, the Union submitted that these breaches are worthy
of only minor discipline, because the CBD lotion has only minimal THC content, and is commonly used
for therapeutic purposes. Also, once the Grievor arrived back at the Hospital, she had to escort JB back into
the Hospital, so the Grievor had to bring the CBD lotion with her into the Hospital, because she couldn’t
leave it in the van, and couldn’t go to her own car, to leave it there. Also, the Union submitted that once in
the Hospital, the Grievor had only minimal discussions with other staff regarding the CBD lotion, and it is
unclear whether she showed it to any other staff member.
[56] I agree that these breaches deserve minor discipline. The fact that the Grievor drove back to the
Hospital in the Hospital van with the CBD lotion, and then brought the CBD lotion into the Hospital, as
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stated above, are not, on their own, as serious as the Grievor’s other acts of misconduct. However, they are
breaches of the Hospital’s policies, and they do warrant minor discipline.
7. The Grievor Failed to take a GO-bag and a Hospital Cell Phone on the Outing
[57] The Union does not dispute these allegations, but submitted that no discipline is warranted, because
the GO-bag and Hospital cell phone policy has not been properly communicated or consistently enforced.
The Union noted that some staff do not even know what a GO-bag is, and didn’t always have access to a
Hospital cell phone, and have never taken a GO-bag or a Hospital cell phone on any of their outings. Rather,
they have just taken their own cell phone, and no GO-bag. The Union noted that in this case the Grievor
took her personal cell phone with her, and the Hospital had the cell phone number if they needed to reach
her. In view of all of this, I agree that no discipline is warranted regarding these allegations.
10b. The Grievor Provided a Meal to JB that Exceeded the Caloric Count in JB’s Diabetic Diet
[58] The Union does not dispute this allegation. JB’s Doctor ordered diabetic diet was limited to 1800
calories per day. The Grievor took JB to the Dairy Queen, and the lunch that the Grievor helped JB order,
and allowed JB to eat, had about 1,000 calories. This was well over what JB should have had for lunch.
[59] The Union submitted that the Grievor’s actions in violating JB’s Doctor ordered diabetic diet were
the most serious of all the Grievor’s actions, and warranted most, if not all, of the ten-day disciplinary
suspension that the Union proposed as the appropriate discipline. I agree that this is a very serious act of
misconduct that warrants major discipline.
[60] The Union noted that JB has eaten in the past hamburgers, fries and ice cream. That is true.
However, it was clear that although JB has eaten this food, sometimes on special occasions, JB’s food and
portions were still always carefully monitored and adjusted to ensure that overall her daily meals still
complied with her total daily calorie count. And obtaining approval to modify JB’s meals was difficult, and
required approval in advance. Even for special food on special days, such as Christmas or birthdays, JB’s
meals may have been modified, but they were always approved in advance, and her 1800 calorie per day
diet was always maintained. JB didn’t get to choose what she ate. JB could only eat the food that the
Hospital allowed her to eat, in compliance with her diabetic diet.
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[61] As a Nurse, and JB's primary Nurse, the Grievor had to appreciate the importance of this diabetic
diet, and ensure that JB followed the diabetic diet. The Grievor could not choose to have JB follow, or not
follow, this diabetic diet. JB is a complicated diabetic, and there are strong medical reasons for why JB is
on the Doctor ordered diabetic diet. Failure to follow the diabetic diet can cause serious medical problems
for JB. The Grievor brought JB to the Dairy Queen, helped JB purchase the high calorie lunch, and allowed
JB to eat the lunch. The Grievor did not ensure that JB followed her diabetic diet. In not doing so, the
Grievor did not provide the care for JB that the Grievor must provide to JB.
[62] Also, the Grievor did not accept responsibility for her improper actions. Rather, the Grievor
provided excuses for why she did not have JB follow the diabetic diet. Also, the Grievor stated that JB did
not suffer any immediate health consequences as a result of not following her diabetic diet. This is not the
point. Rather, the point is that as JB’s primary care Nurse, the Grievor had to ensure that JB followed her
Doctor ordered diabetic diet. Fortunately, no immediate health consequences happened. But something
could have happened, and that is the reason that JB was on the diabetic diet, and why it had to be followed.
11. The Grievor Neglected to Follow JB’s Doctor Ordered Chopped Food Diet
[63] The Union also does not dispute this allegation. The Union acknowledged that JB was on a Doctor
ordered chopped food diet, and that the Grievor did not chop JB’s hamburger patty and fries. The Union
acknowledged that the Grievor’s actions were in violation of the Doctor ordered chopped food diet, but
submitted that this is worthy of only minor discipline, for the following reasons.
[64] The Union submitted that there was no real danger to JB because the Grievor and Ms. Marchand,
the Patient Care Assistant who went on the outing with the Grievor, sat beside JB the whole time she was
eating, and they could have intervened had JB choked. The Grievor also testified that there was a fire station
only a block away from the Dairy Queen, and that the fire station could have been called if JB choked.
Also, the Union submitted that the Dairy Queen hamburger patty is thin, and the fries are doughy, and are
easy to eat, and did not present a choking hazard. And again, the Union noted that no health consequences
occurred to JB as a result of the Grievor not following the chopped food diet.
[65] Again, I cannot agree with this characterization of this event, or the conclusions drawn by the
Union. JB has few teeth. Due to this, she is at a risk of choking, and is subject to a Doctor ordered chopped
food diet. As a Nurse, and JB's primary Nurse, the Grievor must understand the importance of this chopped
food diet, and must follow it. The Grievor cannot choose to follow or not follow such a Doctor ordered
14
chopped food diet. Again, the Grievor did not provide the proper care for JB, and did not accept
responsibility for her improper actions. Rather, the Grievor has provided excuses for why she did not have
to follow the chopped food diet, and stated that no health consequences occurred to JB as a result of not
following the chopped food only diet. Again, this is not the point. It does not matter that, on this occasion,
JB did not choke. JB could have choked, and there could have been negative consequences for JB. The
Grievor placed JB at risk. This is another example of a significant lack of judgment by the Grievor, and a
failure by the Grievor to acknowledge her lack of judgment, and to accept responsibility for it. Accordingly,
this warrants major discipline.
THE GROUNDS THAT THE UNION DOES DISPUTE
9. The Grievor Used the Outing for Her Personal Use
[66] I consider this Ground to be the same as Grounds 1, 2 and 4, addressed above. As such, I will not
repeat here everything that I said regarding Grounds 1, 2 and 4. To summarize, I ruled that the Grievor
allowed self-interest to cloud her judgment, and that she planned the outing and took JB on the outing to
Sessions for the Grievor’s own benefit, so that she could buy CBD lotion, rather than for JB’s benefit, and
that this warrants major discipline. My reasons are in my consideration of Grounds 1, 2 and 4.
10a. Failed to Ensure JB’s Blood Sugar was Appropriately Managed before Leaving the Unit
[67] The evidence was unclear as to whether the Grievor checked JB’s blood sugar status before the
Grievor left on the outing with JB at 12:15 PM. The Grievor testified that prior to leaving on the outing she
was aware of JB’s blood sugar level, and she was aware that JB’s lunchtime insulin had not been given.
There was insufficient evidence that before leaving on the outing at 12:15 PM, JB’s blood sugar level was
inappropriate, or that it was improper to take JB on the outing for that reason. As such, there can be no
discipline for this Ground.
12. The Grievor Provided Inadequate Information to the Duty Doctor
[68] The Union noted that the Hospital did not call the Duty Doctor to testify, and that the Grievor gave
the only evidence regarding this Ground. The Union noted that the Grievor testified that she was the one
who called the Duty Doctor, and that she told the Duty Doctor that JB’s blood sugar level was high, and
the Duty Doctor didn’t ask her any questions, so she only offered that JB had just had some applesauce and
15
a diet ginger ale. The Union submitted that the Duty Doctor was able to ask anything else, including whether
JB had eaten anything else that day, or eaten anything out of the ordinary, but the Duty Doctor did not do
so. The Union submitted that the Duty Doctor, and not the Grievor, was in the best position to know what
information he needed to make the proper decision about JB’s medical care.
[69] I do not accept the Grievor’s position regarding this. Given the Grievor's responsibilities as a Nurse,
and the fact that she was the primary Nurse for JB, it is not acceptable for the Grievor to choose to inform
the Duty Doctor of only the applesauce and diet ginger ale that JB had recently had, and to not inform the
Duty Doctor of the high calorie lunch that JB had eaten. The high calorie lunch is very relevant to JB’s
blood sugar level and diabetic treatment. Choosing to not disclose this information was improper, appears
to be even deceptive, and could have been harmful to JB.
[70] The fact that the Duty Doctor didn’t ask the Grievor any questions was understandable, given that
the Grievor had provided information regarding the applesauce and diet ginger ale, and didn’t provide any
information regarding the Dairy Queen meal. Under those circumstances, the Duty Doctor would have no
reason to ask further questions, but rather could expect that the Grievor, as a Nurse, would have provided
all of the relevant information. As such, the Duty Doctor’s actions do not exonerate the Grievor in her
decision to withhold the important information regarding the high calorie Dairy Queen lunch. Rather, this
is an example of the Grievor trying to place the blame for her own improper misconduct on the Duty Doctor.
[71] Also, the fact that the Grievor later charted some information regarding the Dairy Queen lunch does
not exonerate the Grievor from having withheld this important information to the Duty Doctor. Rather, the
subsequent charting makes it worse. If the lunch was important enough to chart it later in the day, it should
have been important enough to raise with the Duty Doctor when they were together addressing JB’s blood
sugar level. That was the time to disclose this information to the Duty Doctor. As a result of the Grievor’s
actions, the Duty Doctor treated JB in the absence of having that important information. These actions of
the Grievor breach her duty of care to JB, and warrant major discipline.
14. The Grievor Failed to Report the Issues of the Outing to the Clinical Manager
[72] The Grievor testified that she felt the only significant issue of the day was JB’s high blood sugar
upon returning from the outing, and that she did report that to the Duty Doctor, and did chart that and what
JB had for lunch. Also, the evidence was that staff were not required to report to the Clinical Manager every
time a patient had high blood sugar levels, and did not always provide a follow up email regarding the
16
details of the outings that they went on. Also, there was insufficient evidence that the Grievor did not send
an email about the outing. As such, although I do not find that only significant issue of the day was JB’s
high blood sugar upon returning from the outing, I do not find that the Grievor breached this Ground.
THE AGGRAVATING FACTORS
[73] The Hospital submitted that there are several, and very serious, aggravating factors that render
discharge the appropriate penalty, and rule out the reinstatement of the Grievor to the Hospital. The Hospital
submitted that throughout this process the Grievor has failed to understand and acknowledge that she
exercised very poor judgment and breached patient care orders. The Hospital submitted that the Grievor
has also failed to accept responsibility for her improper actions, and rather has provided excuses for her
actions, so as to try to minimize the seriousness of her misconduct. The Hospital submitted that the Grievor
did this during the investigation by the Hospital, and then continued to do this throughout the arbitration.
[74] The Hospital noted that during the investigation of this matter by the Hospital in January 2020, the
Grievor read a written statement that she had prepared, and that the Grievor referred to this statement at the
arbitration as an “apology”. However, the Hospital submitted that this statement was not an apology, but
rather was a list of excuses for why her conduct was not improper, and does not show any remorse. Rather,
the Hospital submitted that this statement shows that in January 2020 the Grievor failed to understand and
accept responsibility for her actions, but rather tried to minimize the seriousness of her misconduct.
[75] The Hospital submitted that the Grievor repeated this lack of understanding, responsibility or
remorse throughout the arbitration hearing. The Hospital submitted that again throughout the arbitration the
Grievor provided a long list of excuses for why her conduct was not improper, rather than stating that she
understood and accepted that her actions were improper, and giving reasons to believe that she would not
commit such misconduct again in the future. In view of all of the above, the Hospital submitted that all of
the Grievor’s actions do not provide the Hospital with any reason to believe that the Grievor understands
that her conduct was improper, or that the Grievor would not engage in misconduct or poor judgment if she
was reinstated to employment.
THE MITIGATING FACTORS
[76] The Union submitted that the following mitigating factors should reduce the penalty to something
less than discharge, and that a 10-day suspension is the appropriate discipline.
17
[77] The Grievor was hired by the Hospital in April 2001. As of January 31, 2020 she had worked at
the Hospital for almost 19 years. However, under the Collective Agreement, the Grievor’s seniority date
is in 2008. So she had about 11 years of seniority as of her discharge on January 31, 2020.
[78] On January 31, 2020 the Grievor was 61 years old, only four years from her anticipated retirement
at age 65. As a result of her discharge, the Grievor lost out on four years of her highest pensionable income.
The Union submitted that this will cause the Grievor to have a significant reduction to her pension.
[79] The Union submitted that this was an isolated incident, and not a pattern of misconduct. The Union
noted that the Grievor had a good and caring relationship with JB, and had no discipline on her record at
the time of her discharge. Notwithstanding this, the Union noted that the Hospital chose to go to the ultimate
penalty of discharge, rather than implementing progressive discipline. Again, the Union submitted that a
10-day suspension would have been a more appropriate response, and would have served the rehabilitative
purpose that progressive discipline serves. The Union submitted that progressive discipline should have
been applied.
[80] The Union noted that the Grievor’s discharge was reported to the College of Nurses of Ontario
(CNO), as the Hospital is required to do, and that the CNO investigated the incident and issued no discipline.
Although the Report of the CNO was not provided, the Union submitted that this nevertheless indicates that
the Hospital’s response to this incident was excessive, and an overreaction.
[81] The Union submitted that this overreaction may be because the Grievor purchased CBD lotion,
which is a cannabis product. The Union noted that cannabis products are legal, but are still stigmatized. The
Union submitted that the Hospital stigmatized cannabis products, and as a result of this overreacted to the
outing to Sessions, and the purchase of the CBD lotion. The Union submitted that the Hospital's reaction
would have been completely different if the Grievor and JB had gone to Walmart, to purchase some
clothing, which is a relatively common outing for the patients.
[82] The Union submitted that the Grievor was forthright with the Hospital in its investigation of the
incident, and admitted to many acts of poor judgment during that investigation. The Union also submitted
that in her testimony the Grievor accepted that she had exercised poor judgment and apologized for it. The
Union submitted that the Grievor acknowledged that she: gave JB a Dairy Queen lunch that exceeded JB’s
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diabetic diet; could have charted more details regarding JB’s behaviour; was prepared to accept some
discipline for her actions; had seen the error of her actions, and; would not make the same mistakes again.
[83] Finally, the Union also noted that during the investigation in January 2020, the Grievor read a
written statement that she had prepared. The Union referred to this statement as an “apology”. Contrary to
the Hospital’s interpretation of this statement, the Union submitted that the statement displays that the
Grievor did understand and acknowledge that she exercised poor judgment, accepted responsibility for that,
and showed remorse for it.
[84] Based on all of this, the Union submitted that the penalty of discharge is excessive, and that these
mitigating factors should reduce the penalty so something less, such as a 10-day suspension.
[85] For the reasons stated earlier in this Award, I do not find that the Hospital’s actions were caused
by an overreaction to the fact that the Grievor purchased CBD lotion. Also, although the Grievor did make
some statements during the investigation and the arbitration, including reading her statement during the
investigation, and repeating it at the arbitration, to the effect that she acknowledged that some of her actions
were improper, I do not find that overall the Grievor demonstrated an acceptable understanding and
acceptance of her wrongdoing, and showed an acceptable level of remorse for it.
THE LAW
[86] The parties put before me numerous cases in support of their positions. Almost all of these cases
pertain to the discipline that was appropriate for a wide range of acts of misconduct by a wide range of
employees. I find the cases that are most relevant to this case are the cases dealing with health care
professionals who have exercised poor judgment and/or committed misconduct in providing their services.
The cases make it clear that health care professionals are held to a high standard of care and responsibility,
and that the discipline that can be imposed can be quite substantial when they have breached that high
standard. This is so because of their specialized training and the critically important services that health
care professionals are entrusted to provide to the persons under their care, who are sometimes very
vulnerable. This is also due to the very special relationship of care and trust that they hold with such patients.
[87] The discipline becomes even greater if certain other circumstances also exist. For example, if the
Nurse does not even appreciate that their judgment was poor, or does, but fails to report their poor judgment,
19
or worse yet, attempts to cover up their poor judgment. Under these circumstances, discharge may very
well be appropriate.
[88] In addition to this, it is also a significant aggravating factor if, when confronted with the poor
judgment and/or misconduct, the Nurse continues to deny or cover up their actions, or fails to accept, take
responsibility for, and show remorse for their misconduct, and thereby fails to show that they will not repeat
the poor judgment. This leaves the employer with the concern that the Nurse’s judgment is so poor, or that
the Nurse is in such a state of denial, that the poor judgment or misconduct could be repeated in the future.
This could irreparably harm the relationship between the employer and the Nurse, making their continued
employment untenable.
[89] The high standard to which health care professionals, including Nurses, are held is succinctly set
out in the following passage from Campbellton Nursing Home Inc. v. CUPE, Local 2354 (Roy), 2016
CarswellNB 406 in which Arbitrator Doucet stated that [bolding added]:
60. The work of employees in the health care sector requires a high degree of compassion
for patients. Accordingly, these employees must possess the necessary skills enabling them to
deal in a dignified way with patients under their care. The patient's vulnerable situation is at
the heart of the high standard that is required of them. As stated in Baptist Housing Society
(Grandview Towers) v. H.E.U., Local 180 (1982), 6 L.A.C. (3d) 430 (B.C. Arb.) (Greyell), at
par 24 and 25:
A much higher standard of conduct is expected from employees in the health
care field than in other occupational fields. In this industry arbitrators are required
to have regard not only to the interests of the grievor and of the employer but also
must have regard to the public interest. Both employer and employee are
reposed with a public trust for which they are held accountable.
The public trust is onerous. In broad terms it is a charge of responsibility for
the physical and emotional comfort of a member of our society who is unable to
live independently…
[90] Arbitrator Stout cites this passage with approval at paragraph 164 of his Award in St. Joseph’s at
Fleming Long-Term Care Facility v. CUPE, Local 2280 (Perrault), 2015 CarswellOnt 927, stating that:
“There is no doubt that health care employees are held to a very high standard of conduct. Many of the
cases referred to me by the parties cite the award of Baptist Housing Society…”.
[91] This high standard, and the effect of aggravating factors, are addressed very well in City of
Cornwall v. CUPE, Local 5734 (Lafleche), 2022 CarswellOnt 4947 (Parmar) in which a paramedic was
20
discharged for not following instructions and a transport standard when he was transporting a patient to the
Hospital. It was found that he exercised poor judgment in the transport. Also, Arbitrator Parmar discusses
several aggravating factors, which she found “magnified exponentially” the discipline that was warranted,
and resulted in her upholding the discharge, stating that [bolding added]:
72. The Grievor engaged in misconduct when he resisted Dr. Blackmore’s instructions to
proceed to Cornwall and then proceeded to Ottawa without express authorization by a doctor
and in contravention of the trauma bypass standard. This is not an insignificant breach of his
professional responsibility, as it placed the Employer at risk of liability in the event a negative
outcome from the patient followed in the course of the transport to Ottawa. Fortunately, that
negative outcome did not arise, but that does not change the fact the Grievor created that risk
by failing to follow the trauma bypass standard. That said, there may still have been some
room for this employment relationship to continue if the Grievor had simply
acknowledged what he did. After all, there is no suggestion that his decision to proceed to
Ottawa was based on anything other than his view of the best interest of the patient; it is just
that he had no professional authority to make that decision. Unfortunately, his subsequent
conduct, whereby he sought to conceal his initial misconduct about the trauma bypass
standard by concocting an explanation that he could not understand the base hospital doctor, is
even more serious misconduct.
74. … Breaches of rules put in place to ensure the safety of employees or the public are
serious offences, and the fact that no injury or harm is sustained as a result of the breach
does not diminish the seriousness of the misconduct. Honesty is a fundamental element of
the employment relationship, the breach of which may, in itself, establish a basis for discharge.
Furthermore, healthcare professionals are held to a higher standard, in so far as it relates
to professional obligations of integrity and competence. This of course applies to
paramedics, as noted in BC Emergency Health Services, supra, where the discharge of two
paramedics was upheld, in part, due to their dishonesty during the employer’s investigation
into their conduct with respect to a patient. The arbitrator stated:
The employer must have the ability to trust a paramedic’s account of their conduct
since they work with vulnerable persons and are largely unsupervised in the
nature of their work. Some authorities have held that the trust requirements in
health care, together the need to protect the vulnerability of patients suggest that
a denied incident, or an untruthful account of a disputed incident, is sufficient
to warrant discharge.
75. The decision in Royal Victoria Hospital, supra, is particularly instructive. In that
case the grievor, a registered Nurse with 13 years of service, performed a medical procedure
without first registering the patient or having a doctor’s authorization, which was known by
the Nurse to be required by both hospital policy and her professional obligations. There was
no dispute that the Nurse did this with the honest view that urgency was present and doing so
was in the patient’s best interest. The matter came to light when she mentioned it in
conversation to another Nurse, who, due to a sense of professional obligation, immediately
indicated she was going to report the matter. However, even then the grievor did not report
it. The arbitrator reviewed a number of cases dealing with discipline in the context of
healthcare professionals, and noted the following:
21
The foregoing cases illustrate the high standard of conduct expected of
professional healthcare workers, the substantial discipline that properly flows
from not following crucial procedures even where failure to do so does not
injury the patient, and in that context, the greater harm in not reporting mistakes
which in themselves might not justify summary dismissal. But they also show a
distinction in outcome for errors or mistakes found to be in the nature of careless or
negligent conduct as opposed to acts of willful disregard for important rules of policy
and/or procedure, which may be a difficult line to draw.
76. Relying significantly on the fact the Nurse failed to report her own misconduct,
despite the fact the grievor acknowledged her wrongdoing at the arbitration hearing, the
arbitrator upheld the discharge.
77. In the present case, the Grievor’s actions with respect to the transport to Ottawa is
serious misconduct worthy of discipline. This was magnified exponentially when he then
tried to cover up that misconduct with an explanation that was simply not true. To borrow
from Royal Victoria, while it is understandable that employees sometimes make mistakes “it
is the employee’s reaction to a mistake that is of great significance” in determining the
appropriate penalty. Dishonesty is the type of misconduct that strikes at the heart of the
employment relationship. It is of particular concern in the case of a health professional,
who must be trusted to exercise his discretion in a manner that meets professional
standards while working independently. Employers of health professionals can rightfully
demand this level of trust in their employees because it is essential to ensuring the public’s
trust in the employer…
[92] Similarly, in UNA, Local 213 v. Forest Grove Centre, 2011 CarswellAlta 2007 a Nurse engaged in
an altercation with another staff member, during which a resident went unattended. Arbitrator Wallace
upheld the discharge, citing several aggravating factors, stating that [bolding added]:
49. Against the mitigating factors of service and clean disciplinary record, however, one
must place several seriously aggravating factors. First among them is that this discreditable
incident occurred in the context of the health care industry, and particularly that it happened
in a facility full of very aged, infirm residents just about totally dependent upon the
compassion and professionalism of the care staff for their well-being. The case law is clear
that a higher standard of conduct applies to health care professionals, and this conduct
was a very marked departure from the standard expected by management and the public...
50. … What these cases show, then, is that in a long-term care setting, cases of patient
abuse at the low end of the scale of severity can justify termination of employees with
seniority and disciplinary records similar to the Grievor's.
51. It is also an aggravating factor that the Grievor did not display either remorse or a
sense of accountability for this incident in the investigation or in this hearing. Throughout,
she resolutely maintained her version of the facts and the view that that the entire incident was
the fault of Mary. She admitted fault only reluctantly and under pressure of cross-
examination. I have found that the evidence is not consistent with her version of the case. I
am forced to the conclusion that the Grievor's inability to accept responsibility for her part
22
in these events or to show remorse, augurs poorly for her prospects of continued
employment in this facility. The Employer in its termination letter, and Ms. Smith in her
testimony, stated that management had come to the conclusion that the necessary trust in the
Grievor had been irretrievably broken by this misconduct. While that is sometimes said by
employers in termination cases as a kind of formula or talisman, and cannot dictate the result,
in this case there is justification for the conclusion.
[93] In West Park Health Centre v. CUPE, Local 1263 (Dutt), 2013 CarswellOnt 10708 a PSW left
residents lying in soiled clothing and linen. Arbitrator Keller found that the PSW’s conduct warranted some
discipline, and that the addition of the following aggravating factors clearly elevated the discipline to
discharge, stating that [bolding added]:
23 It is further my view that discharge is the appropriate penalty in this case. There is
absolutely nothing to suggest that the grievor accepts any responsibility for the incidents.
There is nothing to suggest that she understands or cares that the lack of care could negatively
affect the health of the residents. There is nothing to suggest that if she is reinstated these or
similar incidents will not recur.
24 The responsibility of the employer is to provide the best care it can to its residents. It has
both a legal and moral obligation to do so. Reinstating the grievor would run contrary to
permitting the employer to fulfill its responsibility to the residents.
[94] Finally, the facts in Montage Support Services of Metropolitan Toronto v. OPSEU, Local 597
(Alexander), [2000] OLAA No 87 are somewhat similar to the facts in this case. In Montage Support
Services two residential support workers took two highly vulnerable residents to the theatre on an approved
outing. However, for a period of time at the theatre they left the two residents alone, asking a theatre
attendant to monitor the two residents, which was a breach of resident care policies. They were discharged.
Arbitrator Saltman upheld the two discharges, stating that [bolding added]:
33. Although, in these proceedings, the Grievors acknowledged that they exercised poor
judgment in leaving the clients unattended and that perhaps they should have handled matters
differently, they gave no such acknowledgement when confronted by Ms. Powers the day
after the incident or when interviewed by Mr. Morassutti some four days later. On both of
these occasions, there was no acknowledgement of wrongdoing, no real appreciation of the
seriousness of their actions and no expression of remorse. Although Ms. Brown claimed that
she apologized to A for having left him on the day of the outing, for reasons which were not
explained, she offered no similar apology to the Employer the following day or at any time
prior to the commencement of these proceedings.
36 In this case, as well, the Grievors left two helpless individuals unattended in a public
place, thereby putting them at risk of serious harm. The fact that no harm befell these
individuals was merely fortuitous and does not provide a basis upon which to excuse, or
23
even ameliorate, the Grievors' misconduct. Furthermore, the Grievors attempted to
diminish the extent of their misconduct by minimizing the time they left the clients
unattended. Moreover, it was not until the hearing that there was any expression of remorse
or acknowledgement of wrongdoing. In these circumstances, while the Grievors were
admittedly not short service employees, I am of the view that this is not an appropriate case
in which to modify the penalty. In the result, the grievances must be dismissed.
SUMMARY
[95] The following summarizes that the Grievor exercised very poor judgment, failed to follow Doctor's
orders regarding JB's care, and engaged in misconduct. The Grievor also failed to acknowledge, accept
responsibility for, and express remorse for her misconduct. In view of the high duty of care that is placed
upon Nurses who care for vulnerable patients, and considering all of the Grievor’s improper acts, I find that
discharge is the appropriate sanction, notwithstanding the mitigating factors. This is not a case where lesser
discipline, based upon the principle of progressive discipline, is appropriate. The summary is as follows:
• The Grievor took JB on the outing to Sessions, for the Grievor’s own benefit, and not for JB’s benefit.
• The Grievor did this notwithstanding that another Nurse and the Charge Nurse had told her that they did
not think that an outing to Sessions was appropriate.
• The Grievor brought JB to a Dairy Queen, where JB had a high calorie lunch, that was not allowed under
JB’s diabetic diet.
• The Grievor also did not chop up JB’s lunch food, in violation of the Doctor’s chopped food Order.
• Upon returning to the Hospital, JB’s blood sugar was very high. The Grievor only told the Duty Doctor
that JB had just had a snack of applesauce and a diet pop, and did not tell the Duty Doctor that JB had
also had the high calorie lunch at Dairy Queen.
• This was not an isolated and momentary aberration. Rather, it was intentional, premeditated, planned
and prolonged. It lasted over a period of about four hours. And had several acts of misconduct within it,
as summarized above.
• During the Hospital’s investigation, the Grievor did not demonstrate an understanding and acceptance
of her misconduct, and show remorse for it, but rather attempted to justify her actions and offer
explanations to minimize the seriousness of her misconduct. The statement, or apology, that the Grievor
read during the investigation does not change this. Rather, in some ways, it reinforces this.
• At the arbitration, the Grievor repeated this lack of understanding, responsibility and remorse, and did
not give reasons to believe that she would not commit such misconduct again in the future.
24
[96] For all of these reasons, I find that the Grievor’s discharge was warranted. As such, the Grievance
is dismissed. I remain seized with regard to the interpretation, implementation and enforcement of this
Award.
Signed at Toronto on January 10, 2023.
___________________________________
Peter Chauvin, Arbitrator