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HomeMy WebLinkAboutNieuwenhuis 03-08-19 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:48PM; Page 2/18 ~~ "~",,j~,'d"1' ",h,~#,f", ~ 't, ~ c l- AY' c-. 'I; ~ iI, 'f\ 'E. ~'v~~ - ~t\' U A ?~\)'S ,,~ r\ \ \~\\-,~ ,,0 \l'J t\\~~\:,~~:;-~">~~_. \;On ""'~. In the Matter of An Arbitration Between Peterborough Regional Health Centre ("the Health Centre") And Ontario Public Service Employees Union Locals 342 & 343 (the "Union") Regarding: Discharge Grievance of Grace Nieuwenhuis Sole Arbitrator: Felicity D. Briggs For the Employer: Brian O"Byme, Counsel Jennifer McLauchlan Cheryl Harrison For the Union: Ann Lee, Grievance Officer Terry Baxter Errol Downey Grace Nieuwenhuis Sent By: FELICITY D BRIGGSj 416 925 9933j Aug-22-03 12;48PM; Page 3/18 The grievor, Grace Nieuwenhuis, was discharged fi'om her employment at the Health Centre on November 5,2002. Her letter of termination stated: This letter is to confirm our meeting of to day's date in the presence of Errol Downey (Union Representative) and Jennifer McLauchlan (Employee Relations Consultant) wherein I advised you that your employment was being terminated effective immediately for behaviow's towards and comments to patients of the Health Centre which were totally unacceptable. The Health Centre does not and will not tolerate behaviours such as those you have demonstrated. The relevant facts of this case are not in dispute. Where the parties are significantly disparate is regarding the amount of penalty that is appropriate given the facts. The grievor is a laboratory technician who began her employment with the Health Centre on March 22, 2000. She has no disciplinary record. The principle responsibility of her position was as a phlebotomist. She was discharged as the result of her actions with respect to two separate incidents. The first incident involved a local health care provider (hereinafter referred to as Ms. B.) who attended at the Health Centre due to a needle stick injury on January 18, 2002. She had scratched herself at her workplace with a needle that had been used by an HIV positive patient. Once in the emergency room at the Health Centre she was escOlted to a curtained area to have her blood drawn by Ms. Nieuwenhuis. While the grievor was preparing to draw Ms. B.'s blood she reviewed the requisition. According to Ms. B) Sent By: FELICITY 0 BRIGGSj 416 925 9933j Aug-22-03 12:49PM; Page 4/18 the grievor then asked her l( so, what did you do, sleep with some one who had AIDS?" Ms. B. testified that she felt she was being judged and her view was that the comment was unprofessional. The grievor had only a vague recall of this interchange but at no time did she dispute Ms. B' s recall. This incident did not come to the attention of anyone at the Health Centre until October 29, 2002. On that day Cheryl Harrison, the grievor's Manager, was approached by Tanya Stuart, Corporate Director of Community and Patient Relations, who had been conducting a patient satisfaction study. In the information returned a past patient the following was stated: The concern/understanding of the nursing staff following my needle stick injury with a known illV patient. What I was most disappointed/upset with was that the person that drew my blood (sic). Upon learning that they were drawing blood for an IllV test asked Hyou don't mind me asking do you, I mean I don't mean to be noisy (sic) but did you, sleep with someone who has AIDS?" If you would like any further information please contact me". After that discussion Ms. Harrison went into the Medi~tech computer system to investigate who collected Ms. B.'s blood specimen. She ascertained that the grievor took Ms. B's blood on January 18, 2002. Ms. Harrison next reviewed the payrolll'ecords to ensure that the grievor had been working on that day. As the grievor was not working on October 29, 2002, Ms. Harrison decided to wait until Ms. Nleuwenhuis returned to work the following evening. At that point it was Ms. Harrison's intention to speak with the grievor and counsel her about her conduct. However, the following day, prior to the 2 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:49PM; Page 5/18 grievor reporting to work, Ms. Harrison was contacted by Darlene Johnstone, the Acting Manager of the Palliative Care Unit. Ms. Johnstone rep0l1ed that the grievor had come on to the unit to visit a patient (hereinafter refelTed to as "Mr. A.") who was dying of leukemia. Her visit was outside her working hours. During the visit she gave Mr. A. two books about "Natural Treatment of Cancer", She also gave Mr. A. a bottle of juice that she had purchased along with the books in a health food store that was part of a recipe for the "natural treatment" of cancers. The grievor checked with the nurses to make sure Mr. A. could drink fluids and then she offered him a drink of the juice. He declined. Not surprisingly~ the grievor~s visit (caused Mr. A. sufficient concern that he reported the incident to the nurses shortly after the visit. Ms. Han'ison again went into the computer system to investigate. She learned that the grievor had accessed Mr. A. 's chart which is a breach of the confidentiality policy. After speaking with Jennifer MacLauchlan in Human Resources, Ms. Han"ison contacted Errol Downey, President of the Local Union. She asked him to attend at a meeting with the grievor at 3:00 p.m. that same afternoon. At the meeting the grievor said that she didn't specifically recaJI the incident in January but that it was possible she said it because she believed in being open and honest with patients. When questioned about Mr. A., the grievor immediately admitted that she had accessed his records and that there had been no professional need to do so. According to Ms. Harrison, during the meeting the grievor did not appear to appreciate the seriousness 3 Sent By: FELICITY D BRIGGS; 416 925 9933; AUg-22-03 12:49PM; Page 6/18 of that infraction. The grievor explained to Ms. Harrison that she did not have a personal relationship with Mr. A. but she had spoken to him often during the course of drawing his blood. When asked she immediately admitted that she had visited Mr. A. and had given him books and the juice. She told Ms. Harrison that she had seen Mr. A. as a uperson and not as a patient" and that she was only trying to help. The grievor was told to go home and that she would be on a paid suspension while the incident was being investigated. After discussions with other Health Centre management personnel Ms. Harrison decided that discharge was the appropriate discipline given the January 18, 2002 incident, the confidentiality breach and the improper visit to Mr. A. She thought the grievor exercised very poor judgment in each of those instances and was concerned that Ms. Nieuwenhuis might do so again in the future. She thought that the grievor did not understand how inappropriate and unprofessional her behaviour had been therefore termination was in order. Ms. Harrison eXplained that the Health Centre is very sensitive about its public image and reputation particularly given some particular recent events. In cross examination Ms. Harrison admitted that the grievor had never shown any evidence of poor judgment prior to the incidents at issue. Further, she had thought the grievor was a good and reliabLe employee before October 29 ~ 2002, 4 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:50PMj Page 7118 Ms. Hanison agreed that it happens from time to time that other staff violate the confidentiality policy and access the health records of patients unnecessarily. She testified that she perfonns spot audits with the assistance of Mr. Downey and in those instances where a staff member has improperly accessed records they have been counseled. Ms. Harrison further conceded that if the January 18, 2002 incident was the only matter brought to her attention at the end of October of 2002, she probably would have only counseled the grievor. According to Mr. Downey employees "quite often)) access patient records without the necessity to do so. It was his recall that in the past when employees had been found to have improperly accessed patient records they were brought into a meeting and reminded of the policy. At most, those employees were given a verbal warning. Ms. Nieuwenhuis testified on her own behalf. She said that she had chatted with Mr. A. on many occasions when taking his blood. He had told her a lot about himself and his diagnosis. She thought perhaps he wanted someone to talk to because he had recently been infonned that his cancer was terminal. With this in mind when she attended at a local Health Food store she inquired about cancer treatments. After discussions with the staff of the Health Food Store she purchased two books. She also bought juice that one of the books suggested would cure cancel' if ingested each day for six weeks. In cross examination Ms. Nieuwenhuis admitted that she told Mr. A. that the people at the health food store told her that the juice could cure cancer. 5 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:50PM; Page 8/18 According to Ms. Nieuwenhuis, she had visited Mr. A. on her day off and asked him if she could show him something. She gave Mr. A. the books and the juice because she thought it might make him stronger. He indicated that he had been vomiting and he was unsure if he could drink it. The grievor checked with the nurses who said it was all right for Mr. A. to drink clear fluids if he could keep it down. She poured a little into a cup to see if the juice was clear. Mr. A. did not drink it and her later asked the grievor to drink the poured juice which she did. There was velY little discussion about the books because she hadn't read either of them. In cross examination of the grievor she admitted that she did not realize that one of the books recommended that an individual should refrain from eating anything else including any traditional medication during the six week period of taking the juice. The grievor also admitted that she had looked at his chmt through the computer system after drawing his blood on the Sunday morning prior to her visit. During her visit she told him that his white blood count was "nice and high". According to the grievor, at the end of her visit Mr. C. thanked her for her trouble. The grievor conceded that she had been Hvery defensi ve" during the meeting held on October 30, 2003. She was immediately concerned that Mr. A. had complained and she asked if he had "felt violated". This would have concerned her because she liked and l'espected Mr. A. 6 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:50PM; Page 9/18 At the hearing the grievor said that her actions were Hvery serious" and "wrong". She acknowledged that she had invaded the privacy of both Mr. A. and Ms. B. In cross examination she also conceded that she violated the confidentiality nlle and used poor judgment in the two incidents. She disagreed that she was impulsive but recognized that she is "spontaneous" at times. She said that she had not intended to continue her discussion with Mr, A. at a later date but she did leave him her telephone number in case he wanted to talk. She conceded that she would have gone for a further visit with other books or juice if he had asked her to. She thought an invitation to return would have made the situation different because Mr. A. was an adult, implying that he was able to make his own choices. HEALTH CENTRE SUBMISSIONS Mr. O'Byrne, for the Health Centre suggested that this grievance was about the trust and confidence that patients have in the Hospital and its employees. It is essential that patients be able to feel secure in the care they receive knowing that their confidentiality will not be violated and that they will not be confronted with insensitive or inappropriate comments. The Health Centre contended it is entitled to have a standard of performance that employees must meet and in this instance, the grievor fell far below that level. The Policy of the Health Centre is clear and known to employees., There was no dispute that the policy stated: 7 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:51PM; Page 10/16 The Kawartha Pine Ridge Information System has adopted a ZERO TOLERANCE policy on password violation, breach of confidentiality, inappropriate file access 01' failure to comply with computer safeguard guidelines and practices. Non compliance may result in disciplinary action up to and including termination or loss of privileges. The Health Centre submitted that patients are very vulnerable and all health care providers should be cognizant of that fact. Simply put, in both instances the grievol' exercised extremely poor judgment and patients were adversely affected. In the case of Ms. B., a patient felt like she was being judged and treated unprofessionally. With Mr. A. the grievor gave books and juice about alternative and arguable drastic cancel' treatment without even having read the books. Those actions coupled with the grievor having needlessly and without authorization accessed Mr. A. ts medical file left the Health Centre with no alternative but termination of the grievor's employment. Mr. O'Byrne acknowledged that this Board has the jurisdiction to award a lesser penalty. However, in making a determination as to whether to reduce the penalty it must be taken into account that Ms. Nieuwenhuis still did not appreciate the seriousness of her actions when giving her evidence. She seemed to comprehend that if a person was offended by what she said then it might have been wrong. However, her view was that if there was no offense taken then her actions were not wrong. Indeed, her "open and honest" approach would no doubt get her into trouble again and that is a possibility that the Health Centre cannot take, 8 Sent 8y: FELICITY D 8RIGGS; 416 925 9933; Aug-22-03 12:51PMj Page 11118 Regarding the issue of breach of confidentiality policy the Health Centre relied upon Re James Bay General Hospital (June 21, 1999) unreported (Knopf). Finally, the Health Centre conceded that there was no malice or ill intent in the grievor's actions. However, the Health Centre is concelned about the care it gives to its patients and the reputation it has in the community. For these reasons, the discharge should be upheld. UNION SUBMISSIONS Ms. Lee began by conceding that there is no doubt that there is just cause for discipline. Indeed, the grievor admitted that she exercised very poor judgment. However, there are several mitigating factors to take into account in the consideration of whether to substitute the penalty of discharge with a lesser form of discipline. Those factors include lack of intent to harm, a clean disciplinary record, motivated by good intentions and a prompt admission of wrongdoing. The Union suggested that the grievor was adversely affected by timing in this matter. Because the three infractions came to the attention of Ms. Han'ison in a twenty-four hour period there was no opportunity for the Health Centre to engage in progressive discipline. Consequently, the three infractions were raised at the same time with the grievor. The three infractions were considered at the same time and that fact, no doubt, was to the grievol"s detriment. For example, it should be recalled that Ms. Harrison 9 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:52PM; Page 12/18 conceded that if the matter of the January discussion was brought to her attention she would probably have only counseled the grievor. Further, she admitted that other employees found to have violated the policy regarding improperly accessing patient records are usually counseled on the first occasion. Ms. Hanison candidly testified that she knew of no other instances where the grievor exercised poor judgment and, generally speaking, she had thought Ms. Nieuwenhuis was a good and reliable employee. The Union disagreed with the Health Centre's suggestion that the grievor was not remorseful and did not comprehend the seriousness of her actions. Her evidence at the hearing was clear that she would not repeat her mistakes. While it was true that the grievor said she would have returned to visit Mr. A. if invited, there is no question that she would not have done so if the Health Centre told her to refrain from any contact with Mr. A. DECISION The Health Centre suggested that the penalty of discharge was appropriate in this instance because there were three serious infractions by a grievor who had yet to understand the significance of her poor judgment. The Union submitted that when the grievor was confronted with the facts she immediately admitted her mistakes and was remorseful. I have given this matter much thought. There can be no doubt, indeed, the Union did not contest, there is just cause for discipline. The single issue for my consideration is whether to substitute a lesser penalty than discharge in ]0 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:52PM; Page 13/18 this case. Arbitrator Knopf contemplated the factors to take into account in determining whether to substitute a lesser penalty for discharge. She said in Re James Bay (supra) at page 17: We do not agree with the employer that every situation where a violation of confidence occurs warrants discharge. Every case must be examined on its own merits. Even this employer only imposed a five-day suspension in a situation of an alleged breach of conduct a few years earlier. In all cases, many factors must be considered including the nature and context of the breach, the seniority of the grievor, his/her history of employment and the nature of the relationship with the patient. In addition, any mitigating factors must be considered. Turning to the nature and context of the grievorts infractions I must find that there were serious violations of policy and proper, professional patient care. The question asked by the grievor of Ms. B. in the emergency department was, as suggested by counsel for the Health Centre, "just stupidH. The grievor explained that she was "open and honestH with patients. She also acknowledged that she was occasionally "spontaneous," Had the grievor thought before she spoke on that day when she was drawing Ms. B.'s blood surely she would have said nothing. If she had taken into account how frightened anyone who is being tested for HIV probably is, it would have occurred to her that her question was unprofessional at best and callous at worst. I have no doubt that Ms. B. must have been hUlt and perhaps annoyed by the grievor's question. She testified that she found the grievor's actions to be "unprofessional". Ms. B. explained that perhaps she did 110t report the incident until she received the quality control questionnaire because she was concelned with other matters in her life at the 11 Sent By: FELICITY D BRIGGS; 41 6 925 9933 j Aug-22-03 12:52PMj Page 14/18 time. While I am not in any way attempting to trivialize the way the encounter affected Ms. B., I do note that she did not, for whatever reasons, complain about the incident at the time. I am convinced that the grievor understood at the time of the hearing the inappropriateness of the question she posed to Ms, B. I believe that her comment that she was an "honest an open person" was by way of explanation and not an excuse or suggestion that she did nothing wrong. I am more troubled by the incident with Mr. A. The grievor had more of an opportunity to consider and reflect about whether her actions were in accordance with proper patient care. The Health Centre did not doubt her good intentions and neither do 1. However, that does not lessen how ill advised her actions were. I agree with cOlU1sel for the Health Centre that patients in health care facilities are, generally speaking, vulnerable. This is true for those who visit emergency departments, those who are outpatients and those who are kept on an inpatient basis. Those people who are entrusted to care for patients must recognize and respect that vulnerability at all times. While that might seem like a significant responsibility to expect of health care professionals, it is nothing less than essential, it seems to me. The grievor testified that she did not see Mr. A. as a patient, rather she saw him as a man. This view of patients as "just people" is a luxury that health care providers cannot afford. The simple and unavoidable fact was that he was a patient. And during the period at issue he was a terminally ill patient who ought to have 12 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:53PM; Page 15/18 been able to rely on the grievor's professionalism. Her behaviour on the afternoon of October 30th, 2002 was, as suggested by the Health Centre, totally unacceptable. The grievor gave to Mr. A. books regarding the treatment of cancer that she had not read. While it might be said that she thought they were acceptable because she had purchased them from her health food store, the fact remains that she did not even read them. That the juice was purported to be an alternative to other cancer treatments in one of the books only compounds the inappropriateness of the entire incident. Mr. Q'Byrne said in his final submissions that the Health Centre was extremely concerned that the grievor testified she would have gone back to see Mr. A. with other material if she had been invited by him to do so. It thought this was further evidence that she simply did not understand the seriousness of her actions. Ms. Lee argued that this would never have happened once the Hospital had told her to stop visiting Mr. A. There is no reason to think that a "good" and "reliable" employee would disobey such direction from her employer. I accept that possibility. I am not prepared to find that the grievor would have continued to visit Mr. A. if she had been made aware of the Hospital's disapproval. Nor am r prepared to accept that the grievor's candid response that she would have revisited MI'. A. if invited by him to do so as proof that she still does not comprehend the seriousness of her actions. 13 Sent By: FELICITY 0 BRIGGS; 416 925 9933; AUg-22-03 12:53PM; Page 16/18 TUlning to the mitigating factors in this case. While the grievor's seniority was only two years and eight months at the time of her discharge, she had a clean record and was, as mentioned previously, considered to be a "good" and "reliable" employee. There had been no previous instances where the Health Centre had any concerns about her judgment. The Health Centre did acknowledge that there was no malice or ill intent in the grievor's actions toward Mr. A. I accept that Ms. Nieuwenhuis cared about the patient and was trying to help, albeit in an inappropriate fashion. By all accounts the grievor did not deny her actions although she had some difficulty remembering the incident with Ms. B., no doubt because it had happened some months earlier. Her immediate forthrightness is to her credit. The final mitigating factor that has influenced my consideration is the fact that the grievor was never taken through progressive discipline. It can be said that the grievor was discharged as the result of tlrree infractions arising from two particular incidents. Those incidents occurred approximately ten months apart. Ms. Harrison was extremely candid when she conceded that in other circumstances at least two of the infractions would have brought about a counseling session or a verbal warning. While there is no doubt that the incidents were significant the lack of progressive and con'ective discipline is extremely troubling, I understand that the Health Centre acted with relative dispatch when they leamed of the incidents. However, I am not prepared to uphold this discharge given that the griever has had no 14 Sent By~ FELICITY 0 BRIGGS; 416 925 9933; Aug-22-03 12:53PM; Page 17/18 opportunity to attempt to regain the Health Centre~s trust. My decision might have been quite different if the grievor had been disciplined for similar breaches of policy and proper patient care in the past. All of the circumstances of this case and the evidence I heard have led me to believe that this grievor should be given another opportunity to prove herself to be a good and reliable employee. It is my hope that because of this experience she will be very much aware that her open, honest and spontaneous nature must always take second place to proper patient care. There can be no doubt that the infractions were significant. Accordingly~ given the severity of the tl'ansgressions~ I am not prepared to order any compensation to be paid to the grievor. Therefore, I order the grievor to be reinstated as soon as is practicable. Her record shall be altered to show the period since November 22~ 2002 as an unpaid suspension with no accumulation of seniority. Her previous seniority shall be reinstated upon her return. I will remain seized in the event that there are any difficulties with the implementation of this award. The grievance succeeds to that extent. Dated in Toronto this 191h day of August, 2003. 15 Sent By: FELICITY D BRIGGS; 416 925 9933; Aug-22-03 12:54PM; Felicity D. Briggs 16 Page 18/18