Termination and Appeal in a Care Home
Gina worked as a Nurses Aide in a Care Home for 14 years. She had a prior discipline record for abusive and confrontational conduct toward co-workers. Gina was dis- charged for harassing and intimidating staff members following the latest com- plaint.
Gina was, by all accounts, an excellent service provider. She had a strong commitment to the residents and an excellent work ethic. Some of her co-workers said her high standards of care may have created conflict with other staff members on occasion.
A year ago, Gina was informally coached, received a reprimand, a writ- ten reprimand and a five day suspension over the course of 4 months. The disci- pline resulted from abusive and confron- tational conduct toward co-workers.
Gina’s father became a resident of the facility that year and the Union ob- served that she appeared to be under substantial stress during that period of time.
The matter that gave rise to the termination was a complaint by Sue, a Nurses Aide. Sue wrote a letter to management alleging a pattern of abu- sive treatment by Gina. Sue said she had raised her concerns informally with her supervisors on a number of occa- sions prior to making her formal com- plaint. Sue speculated, from the timing of the treatment, that it related to the fact that she had reported a staff mem- ber to management for abusing a pa- tient (who was terminated).
After receiving the complaint, the Manager, Paul, suspended Gina pend- ing an investigation. Paul interviewed Sue and kept notes of their meeting. The remedy that Sue wanted from the investigation was that Gina, “quit call- ing me names and bullying me and swearing and using foul language.” Sue identified others that had issues with Gina’s behaviour. Paul interviewed
Sheri who confirmed that she heard Gina call Sue a b***h. Sheri also con- firmed that Gina’s behaviour made people scared of her. Paul received another complaint about Gina before he was able to talk to her about the complaints. Kathy complained of abu- sive conduct directed towards her shortly after she had reported a staff member for patient abuse. Kathy told Paul to talk to Helen whom she said could confirm the conduct – which he did. Neither Kathy nor Helen re- ported the incident at the time as Kathy said she was scared of Gina and Helen said she worked extensively with Gina and noted that she was very good with residents but had an intimidating atti- tude with staff. Paul also received a complaint from Lisa who described Gina as a verbally abusive bully.
Before Paul’s interview with Gina, he received a hand delivered letter from her which apologized for her conduct and indicated she would do what was necessary to get her job back including, “a 100% turnaround apologizing ver- bally or written to each and every person I have hurt even those who have hurt me.” Paul was sufficiently impressed with the letter that he had discussions with upper management about the possibility of a ‘last chance agreement’ with Gina. Ultimately nothing came out of those discussions as both management and Gina did not wish to proceed.
Gina denied the allegations and said that people were “saying things about me that I know are not true but I don’t have any proof to support my side of the story.”
As a result of information gathered Paul interviewed Ashley who described Gina as rude and demeaning to her. Ashley said she tried to avoid confronta- tions with Gina in the hopes she would be left alone. Ashley also said Gina had called her at home on two occasions and described the calls as abusive and said they had frightened her. Part of one call was witnessed by her husband. The gist of the call was Gina complain- ing about her interview with Paul.
Gina was interviewed again and asked about the calls. She denied making one of them and said the other one was a joke. She said Ashley had no rea- son to fear her.
As a result of the information gathered, the Employer decided to terminate Gina with cause. The conclusion was that Gina was harassing and intimidating staff members and they had no confidence she would change. It was noted that 17 staff members would not work with Gina and declined or switched shifts if they had to work with her, which created operational difficulties.
The Union pointed to a number of discrepancies and weaknesses in the Employer’s evidence which it submitted made that evidence unreli-
able. Some of the interview notes were typed and some were not. Some were signed and some were not. The Union indicated Ashley had signed a letter of support for Gina and as such her evi- dence must be viewed with suspicion. The Union argued that the Employer’s Standards of Conduct did not set out any means to deal with harassment. The Union argued that the people who complained about Gina were not long serving employees and presumed that long term employees did not have a problem with Gina. The Union argued there was a lack of detail in the allega- tions against Gina and as such they were near impossible to reply to. They argued that a number of witnesses were not called to give evidence during the investigation and should have been. The Union argued that as the calls to Ashley occurred outside the workplace, they should not be considered in the investigation or give rise to discipline.
The arbitration panel concluded the discipline was warranted and upheld the Employer’s position. The panel concluded that it was not necessary for the employer to interview every person who might have relevant information but rather its obligation was to call enough evidence to satisfy the burden upon it. They were satisfied the Employer did so. Direct evidence provided by the witnesses at the arbitration confirmed the evidence they provided the Employer during the investigation. The panel concluded that the Union could have called witnesses to support its presumption that long standing em- ployees did not have a problem with Gina but did not do so.
The panel concluded that the Employer’s Standards of Conduct (which had been crafted with the aid of the Union) prohibited harassment inside
and outside of the workplace and so ruled that the calls to Ashley were prop- erly considered in the investigation. They also noted “This type of intimida- tion cannot be tolerated as it could have the effect of discouraging reporting of inappropriate behaviour.”
In assessing Gina’s evidence (denial of allegations for the most part) the panel concluded that her evidence was “not in harmony with the preponder- ance of the probabilities which a practi- cal and informed person would readily recognize as reasonable in the place and in those conditions”. Further they found that the written apology Gina provided to Paul conflicted with the denial of behaviour she tendered at the hearing.
The panel concluded the witnesses described a pattern of abusive conduct which was not dissimilar from conduct which had resulted in previous discipline. They concluded it was therefore not out of character for Gina and arose out of being reported to management for her conduct. The panel noted that Gina had been disciplined on 3 prior occasions but had not been convinced to change her conduct in the workplace.
Finally, the panel concluded that although Gina was an employee with 14 years of service, who had excellent skills in the care of residents, it did not mitigate against the “continuing pattern of abuse and harassment of her colleagues in a setting requiring teamwork…” They concluded there was no remorse, or acknowledgment of wrongdoing on Gina’s part and they were doubtful of her candor at the hearing and as such they saw no basis upon which they could reinstate Gina to the workplace.
How the responsibility to investigate impacts the workplace.
Ed is the CEO of a medium sized family owned manufacturing company. Kyle is an employee with over 30 years of seniority with the company. The allegations are that Ed violated the company’s harassment policy by yelling at and verbally abusing Kyle. The incident stems from the timeliness and quality of improvements made by Kyle to a piece of equipment for a very important customer. Ed and Kyle were in a confrontation about the equipment and Kyle became distraught, reported the incident to his supervisor and then left the workplace for the day. The company did not investigate Kyle’s allegations and he filed a grievance through the union.
The Company had delivered equipment to an important client and it was returned as defective. The client allowed the Company to attempt to make the issue right by redoing the job. Kyle completed the work and submitted it for inspection prior to being shipped out. The Production Supervisor, Barry inspected the equipment and completely rejected it. Barry told Ed he could not believe the lack of quality with the work that Kyle wanted to submit. The entire job needed to be disassembled and redone which delayed delivery and increased the pressure.
The inspection of the equipment took place at the end of the work day. Kyle, whose work was challenged and was now faced with the prospect of having to redo work, was frustrated. He waved his arms in the air, threw his tools on a work table and told the group that had been assembled to look at the equipment that he did not care and was going to go home and get drunk and forget about it. As it turned out, he did not leave work early that day. Ed was told about the incident, Kyle’s attitude and comments. The work was redone and assembled and Ed decided to inspect it himself before it went out.
Kyle said that he came upon Ed and his Manager who appeared to be having an argument. Kyle said he joined them at the location of the equipment and that was when Ed began to be little him. He said Ed was very mad and challenged him about the installation of the equipment. Ed questioned why it needed to be done three or four times and asked why Kyle submitted the previous work for delivery when it was not acceptable. Kyle tried to justify his original work and said that another supervisor thought it looked okay. Kyle said Ed started calling him names including ‘dog f***er’ and accused him of walking around the shop talking on his phone on company time. Kyle said Ed called him a drunk in reference to his comments the previous week. Ed said Kyle was a 30 year man, did not care and did not give a f**k anymore. Ed said, ‘Why don’t the older employees f**k off.’ Kyle responded that he liked his job and wanted to stay. He said the company was lucky to have an employee like him. The Manager intervened and conversation shifted to other topics.
Ed recalled the altercation differently. He said he asked a few questions about the equipment and Kyle became defensive and provided excuses. Ed said that Kyle’s comments about the company being lucky to have him did not go over very well with him. Ed said he replied that Kyle was well paid and that he was paid for every hour.
Ed categorically denied calling Kyle a ‘dogf***er’ and volunteered that he had never used that phrase in his life. He also denied the comments about older employees. Ed admitted to using the ‘f word’ but said that it was not directed at Kyle in particular and claimed they had used the word with each other in the past.
When the altercation ended, Kyle left and saw his supervisor, Barry. He told Barry what happened and broke down and cried. Barry told him to go home and said they would talk about it on Monday.
Kyle saw Barry on Monday but Barry did not appear to want to talk about the issue. Barry never did get back in touch withKyle. Barry did not pursue the matter further and neither did the Chair of the Workplace Harassment Committee who was aware of the issue.
Witness evidence was submitted that Ed had in fact used the term ‘dog f***er’ in a meeting two years previous.
There was no evidence provided of an investigation of any kind into what had happened between Kyle and Ed. Rather, the prime concern by management was the equipment and they continued to remain focussed on that aspect of the issue at the grievance hearing.
Upon hearing of the grievance, Ed submitted two written apologies to Kyle. However, the apologies continued to maintain that he had not used the language alleged and implied that Kyle had in fact attacked Ed during the exchange, The apologies also focussed on the equipment and the problems in getting the job done. At one point Ed summed his comments during the altercation up as ‘…honest and concise, and never was there any intent to cause Kyle any personal discomfort.”
Kyle testified that he did not think the apologies were sincere.
The panel found that for the most part Kyle’s evidence was better and more in line with witness information than Ed’s recollection. It was found that Ed indeed used the term ‘dogf***er’ and made the comments about older employees.
The panel found that the altercation did not take place on a level playing field, and that there was a power imbalance present.
The panel also noted that the company did not take any action to investigate the complaint. The fact that Barry was not called as a witness for the employer led the panel to the conclusion that he would have given evidence damaging to the employer.
The panel determined that the comments to Kyle about older employees did constitute harassment on the protected ground of age and also under personal harassment in the company’s policy. The panel sustained Kyle’s grievance by a majority decision.