Michigan Radio & TV Buzzboard

Grievor - Female, age 35

Job Title - Health Care Aide

Seniority - 3 years

Rate of Pay - $22,50/hr

Employee Record - Good

Nature of Grievance - Improper Discharge

Remedy Sought - Reinstatement with no loss of wages or benefits

The Employer owns a chain of nursing homes across Canada, including this 120 bed facility in a small community in south-west Ontario.

The employee was in the room with one of the male residents, tending to his care, The women were always wary of this resident because he often tried to grab at them. This time he succeeded. Got her right by the privates. She screamed, called him a filthy pervert and slapped him.

Just then, the resident's family was walking down the hall on their way to visit with him. They had heard what had transpired in the room. When they entered the room the resident had his hands over his face crying. They complained to the Administrator.

When the Administrator confronted the employee later that day, she admitted what had happened, in a defiant tone and expressed no remorse. They fired her for abuse of a resident.

The Union filed a grievance.

Does the grievance succeed?

Were there formal complaints filed about the resident's behavior?

TC Talks wrote: ↑

Thu Mar 16, 2023 1:23 am

Were there formal complaints filed about the resident's behavior?

I'm not sure if there was even a mechanism for "formal" complaints. But the problem with this resident was well known throughout the facility,

I would say that sometimes when one touches you in an inappropriate way (like criminal), sometimes you react in a less than a logical manner.

For that reason, she shouldn't have been fired.

The resident could be charged, technically.

Is the resident in severe cognitive decline?
Does he recognize his family by name?
Does he know what day it is?
Does he know his own name?
Does he know who the president is?

It sounds like the facility needs better protections for it's team members.

I don't think she should have been fired, and she likely should have called the police for the assault to get a police record.

The slap put it all in another realm. Its not her fault, a visceral reaction, but it changes the game, especially with the patient putting on the crying and hands over face act. Police deal with this sort of thing regularly.....perception becomes reality.

craig11152 wrote: ↑

Thu Mar 16, 2023 11:04 am

Is the resident in severe cognitive decline?
Does he recognize his family by name?
Does he know what day it is?
Does he know his own name?
Does he know who the president is?

I was with you till that last line. It should have read "Does he even know he's the President?"

J/K

She probably should not have been fired, but I would think she'd have a case against the facility if this was a KNOWN issue and they did nothing to even TRY to rectify it. There should be some pretty good records of conversation with family if this was an ongoing issue. And if it was as serious as described, they probably should have had the resident on a plan to rectify the behavior or leave the facility.

In any arbitration case involving discipline or discharge, the burden of proof is with the Employer. First they must prove the employee is guilty of the alleged offense. In this case, the Employer would have no difficulty establishing guilt. The employee already admitted to having committed the offense.

Next, the Employer must show that the penalty administered is appropriate for the offense committed

Abuse of a resident is one of the greatest offenses that an employee of a health care facility can commit and it usually results in a discharge.

However, if there are mitigating factors, an arbitrator will sometimes set aside the discharge and substitute a lesser penalty, such as a period of suspension.

What would mitigate in this employee's favour is the fact that this was an isolated incident for an employee with an otherwise spotless record. Also, the union would argue, there was provokation for her actions. We believed we had at least a shot at reinstatement. But there are no guarantees.

To butress its case, the Employer would emphasize the severity of the offense and the employee's lack of remorse

Screw remorse, a crime was committed on her. In this instance she shouldn't have to provide remorse to keep her job - however she should never have to be alone in the room with him again. I think the relatives were a bit thin skinned and without compassion by complaining knowing that crime was likely committed by him.

Again, a police report would have help the employee.

The male resident was in the early stages of dementia. He wasn't right out of it, but he was no longer in full control of his impulses. Just as a former Presidential candidate was not in control of his urges and later boasted about it.

The Administrator at the facility acknowledged that, with the exception of this incident, the grievor had been a good employee. She also realized there was a good chance an arbitrator would order her reinstatement, She did not want the employee back. The Home was concerned about its reputation in the community

She proposed that we discuuss a monetary settlement that would not include reinstatement.

I contacted the grievor and she was willing. She already had a job at a different nursing home in town and she wasn't at all eager to return to her former workplace.

Turkeytop wrote: ↑

Sat Mar 18, 2023 7:52 pm

The male resident was in the early stages of dementia. He wasn't right out of it, but he was no longer in full control of his impulses. Just as a former Presidential candidate was not in control of his urges and later boasted about it.

The Administrator at the facility acknowledged that, with the exception of this incident, the grievor had been a good employee. She also realized there was a good chance an arbitrator would order her reinstatement, She did not want the employee back. The Home was concerned about its reputation in the community

She proposed that we discuss a monetary settlement that would not include reinstatement.

I contacted the grievor and she was willing. She already had a job at a different nursing home in town and she wasn't at all eager to return to her former workplace.

I'm not sure the administrator was being forthcoming on the facility's real reason for not wanting her back. They knew there was an issue with the behavior of the patient before the incident. Yet they were unable or unwilling to implement measures to protect their staff from such behavior.

Myself I think your griever has grounds for a lawsuit. The home knows they messed up. Based upon what you have shared with us, I see a suit having a high chance of success.

Under Ontario law she has no grounds for a law suit. Where there is a collective agreement in place, the remedy must be sought through the grievance/arbitration procedure.

Under the law, any worker can refuse to do work he/she believes is unhealthy or unsafe. She could have refused to attend to that resident.

The maximum remedy available is reinstatement and to be made whole financially. She indicated she was not interested in that remedy.

Arbitration awards become public records, Grievanve settlements do not.

Regardless of the outcome, the Employer did not want this incident to become public record. They were eager to settle.

The employee already had a new job and had no desire to return to the place.

In the final setllement, the employer agreed to change the employee's record to indicate resignation, instead of discharge. They further agreed to pay her three months severance pay, The employee accepted.