Bullying nurse was wrongfully dismissed, but shouldn’t be reinstated: Arbitrator

Bullying behaviour over time wasn’t enough to warrant termination, but damaged team-oriented work environment
|employmentlawtoday.com|Last Updated: 07/31/2012

An Ontario nurse who was fired for a “subtle” bullying campaign against co-workers was wrongfully dismissed but should not be reinstated, an arbitrator has ruled.

Maureen Withers was a Registered Nurse (RN) with the dialysis unit at the Peterborough Regional Health Centre in Peterborough, Ont. In 2010, the health centre replaced 20 per cent of its RNs with Registered Practical Nurses (RPNs) in order to cut costs. RPNs had a narrower range of practices and were equipped to deal with more stable patients than RNs handled.

The health centre asked RNs to help mentor the new RPNs as they began work at the centre in August 2010, but some RNs were reluctant, since the newcomers were replacing fellow RNs. The health centre received reports of bullying and harassment of the new RPNs by RNs.

In particular, the health centre discovered Withers sometimes made shoulder contact with RPNs, followed by an “excuse me.” Withers also made gestures at RPNs, such as rolling her eyes and flapping her hands, which made the RPNs uncomfortable, and acted unfriendly towards them at other times. She had also tried to persuade other RNs not to mentor the RPNs.

Two RPNs in the dialysis unit informed the unit manager that they were returning to their previous positions because they didn’t want to deal with Withers’ behaviour any longer.

In November 2010, Withers was suspended without pay pending investigation into her conduct. She claimed she was surprised, as she hadn’t been told there were concerns. She denied the reports of her bullying behaviour. One month later, Withers was dismissed for creating a hostile work environment with bullying behaviour, contrary to anti-harassment provisions in the collective agreement and a workplace policy prohibiting disrespectful behaviour.

The nurses’ union challenged the dismissal, arguing Withers was a scapegoat for the health centre’s inability to integrate the RPNs successfully and as a reprisal for a complaint Withers had filed about staffing levels and a grievance filed against her supervisor.

The arbitrator found Withers engaged in a pattern of “intimidating and bullying conduct” that was “extremely subtle, and in that sense (was) extremely insidious.” Though the arbitrator acknowledged that this type of behaviour is more difficult to address on a progressive basis, the arbitrator found there was no previous warning or discipline cautioning Withers against this behaviour. As a result, the arbitrator found termination of employment was too harsh.

However, the arbitrator also found Withers didn’t accept responsibility for her “entirely inappropriate” conduct and the dialysis unit was a busy area that required a lot of teamwork. Since the bullying took place over a period of time and Withers didn’t make any apologies, the arbitrator felt restatement of Withers to her position wasn’t possible. Instead, the health centre was ordered to pay damages for wrongful dismissal, to be worked out in discussions between the health centre and the union.

For more information see:

·Peterborough Regional Health Centre v. O.N.A., 2012 CarswellOnt 6388 (Ont. Arb. Bd.).

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