Unauthorized access of records – Nurse’s job saved by late apology

Remorse over misconduct shown at arbitration hearing enough to mend employment relationship: Board
By Ryan Berger and Herb Isherwood
|employmentlawtoday.com|Last Updated: 06/07/2017

The British Columbia Labour Relations Board (LRB) recently upheld the reinstatement of a nurse who, on multiple occasions over an extended period, accessed private health authority records for personal reasons and without authority. The board upheld the arbitration award that ordered her reinstatement based in part on the nurse’s 11th hour apology. The decision illustrates the challenge for employers in alleging just cause even with strong facts.

The nurse has been employed with the health authority in a small community for eight years and had a discipline-free record. When she was confronted about the unauthorized access, she acknowledged that she had improperly accessed files including files of individuals connected to her co-workers. She even admitted that she had accessed files on occasions that the employer had not identified. She had no compelling reason for having looked at the files and explained that in some circumstances she had accessed files out of curiosity.

The health authority interviewed the nurse twice and during neither interview did the nurse apologize or show any remorse. Her employment was terminated as a result of this breach and her union grieved the termination.

In the arbitrator’s award, the arbitrator acknowledged that the nurse’s conduct was very serious. He noted that these incidents were not isolated incidents nor done on the spur of the moment.

However, he also considered that the nurse was employed in a small community in which her employer was the largest and perhaps the only stable health care employer in town. The nurse supported two children. The arbitrator concluded that these factors imposed a special economic hardship on her.

Interestingly, it was not until the arbitration hearing that the nurse, for the first time, expressed remorse for her conduct. Prior to the termination, there were two investigation meetings in which the employee did not express any remorse. Despite the natural response of skepticism that she was only apologizing to save her job, not because she was genuinely remorseful, the arbitrator accepted the nurse’s demonstration of remorse as genuine and, in considering all the circumstances, ordered the health authority to reinstate her to employment. The arbitrator imposed a 13-month suspension which meant that she would not receive any back pay on reinstatement.

The employer appealed the arbitration award to the LRB on the basis that it could not possibly have contemplated or factored into its decision making the possibility that the nurse would demonstrate remorse after the fact and that just cause should be determined as of the time of termination.

However, the LRB ruled that it was appropriate for an arbitrator to consider the subsequent expression of remorse in determining whether the discipline was excessive.

The LRB decision was focused on the expression of remorse by the nurse and how that impacted whether the employment relationship was capable of restoration. The LRB decision did not focus on a consideration of the ability of her co-workers to trust her given her flagrant breach of privacy and whether this would impact her ability to function in the workplace. The media reported that some co-workers were not happy with this decision and their union’s perceived failure to represent their interests.

Ryan Berger is a partner with the litigation team at Norton Rose Fulbright in Vancouver, focusing on employment law and human rights. He can be reached at (604) 641-4956 or ryan.berger@nortonrosefulbright.com. Herb Isherwood is a senior partner with the employment and labour team at Norton Rose Fulbright in Vancouver. He can be reached at (604) 641-4818 or herb.isherwood@nortonrosefulbright.com.

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