This case highlights the difficulties that unions face when seeking reinstatement of a grievor who has been found to have been dishonest. The Grievor was a Licensed Practical Nurse who was disciplined for four separate incidents:
1. The PICC Line Incident when the Grievor removed the dressing to expose the peripherally inserted central catheter line which, in the Employer’s view, was poor practice given the lack of sterile dressing to re-bandage the site;
2. The Toloxin Incident when a resident’s medication was inappropriately administered;
3. The Fall Incident when the Employer alleged that the Grievor abandoned a resident who had fallen; and
4. The Whistleblower Complaints which alleged that the Grievor breached company policy when she took photos of residents, their wounds, and their medication records on her personal phone and sent them to a colleague.
Ultimately, Asbell held that termination was not an excessive disciplinary response (para 71). He noted that “none of the incidents were, in-and-of-themselves, fundamental breaches” which warranted termination. However, each incident was significantly compounded by the Grievor’s ongoing dishonesty, denial of wrongdoing, and refusal to accept responsibility, such that the employment relationship was irreparably damaged. In particular, Asbell noted that:
• With respect to the PICC Line Incident, the “evolution of the Grievor’s version of events is concerning to me, as it is the first in what appears to be a pattern of dishonesty that has given the Employer due cause to sever the employment relationship” (at para 74).
• With respect to the Toloxin Incident, the Grievor intentionally lied to the Employer and the Alberta Labour Relations Board in order to protect the HCA. Her explanation evolved from claiming she administered the medication, to asserting it was administered under her direction, to finally admitting that the HCA administered the Toloxin independently, without her authorization, and without either worker taking the resident’s heart rate. Asbell stated that “a lapse in judgment motivated to protecting a fellow colleague could, in some circumstances, be overlooked” but highlighted that, in this case, the Grievor’s dishonesty was too excessive and her failure to take responsibility or demonstrate remorse demonstrated that she was not a candidate for rehabilitation.
• With respect to the Fall Incident, Asbell found that the Employer’s conclusions about the Grievor’s conduct were not fully supported by the evidence. However, he noted that the Employer’s concerns were aggravated by the Grievor’s changing explanations and the credibility issues that arose from her conduct in the other incidents. As a result, he viewed the incident as part of the broader pattern that undermined trust in the employment relationship.
• With respect to the Whistleblower Complaints, Asbell found that the Grievor:
o Intentionally chose to disregard the Employer’s policies on multiple occasions by using her personal cellphone to photograph and communicate resident information (para 80);
o deliberately misled the Employer when questioned and denied taking any photos until she was confronted with clear evidence. She explained that she “wanted to see what they had” before admitting her conduct;
o denied photographing a resident’s medication administration record and denied viewing, taking, or destroying a confidential complaint that had been inadvertently printed at her workstation; and
o continued to deny these allegations during the arbitration hearing.
After assessing all the evidence, Asbell stressed that trust is especially important in the healthcare setting where employees are responsible for the care of vulnerable residents. He concluded that the Grievor’s “efforts to conceal the truth, deny her actions, and deflect responsibility” rendered the employment relationship unworkable, despite her years of service, previously clean disciplinary record, and reputation as a skilled and caring nurse.