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Nov 29, 2012

Ontario arbitrator denies reinstatement after nurse threatened management following unjust suspension

Employment relationship too poisoned after nurse’s threatening behaviour in suspension meeting: Arbitrator
    
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An Ontario nurse was subjected to an unjust suspension, but is not entitled to reinstatement after being dismissed for threatening his bosses in the suspension meeting, an arbitrator has ruled.

On Jan. 30, 2009, the nurse was suspended for five days for writing derogatory criticisms of doctors and therapists on a patient’s chart. The misconduct violated the hospital’s code of conduct, but the nurse stood by the comments, as he believed the doctors didn’t do their jobs properly.

On Oct. 14, 2009, the nurse received a second five-day suspension for failing to follow the policy for restraining a patient. On that day, management called a meeting with the nurse to formally issue the suspension. During the meeting, the nurse became angry and disputed that he had done anything wrong because the patient’s history indicated there should be caution in restraining him. He refused to accept the suspension letter and said in a loud voice, “I will get you back, I know who you are, I am on the edge, I'm on the edge.

The three supervisors in the meeting, who were both female, felt scared and threatened , so they reported the incident to the program director. The hospital interviewed the supervisors and decided to terminate the nurse’s employment effective Dec. 2, 2009. Two days later, the nurse filed a grievance claiming harassment, including the argument that the suspensions were unjust.

The arbitrator found that the charting incident was worthy of a suspension, but was too harsh. In the hospital’s progressive discipline policy, a five-day suspension put the nurse “at the brink of termination.” A three-day suspension was more appropriate, said the arbitrator.

As for the nurse’s failure to follow the restraining policy, the arbitrator found it was reasonable for the nurse to be cautious about it, since there were legitimate reasons to not restrain the patient. The arbitrator found the second suspension was unjust and no discipline was needed.

However, though the nurse had reason to be displeased at the suspension meeting and may not have intended any harm to the supervisors, the arbitrator found that a reasonable person would find his behaviour in the meeting threatening and intimidating. In addition, the arbitrator noted “there is generally a greater concern today about threats and violence in the workplace” and the nurse didn’t show any regret or acknowledgement that he did anything wrong.

The arbitrator found the nurse’s behaviour was inappropriate and deserving of discipline, but termination was not the proper level of discipline. However, reinstatement was not the solution, since the nurse displayed mistrust and a lack of regret that poisoned the employment relationship. As a result, the arbitrator ordered the hospital to pay damages — in lieu of reinstatement — which should be negotiated between the parties.

For more information see:

Humber River Regional Hospital v. O.N.A., 2012 CarswellOnt 8834 (Ont. Arb. Bd.).

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