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CUPE Local 139 v. North Bay Regional Health Centre

February 13, 2018

Arbitrator reinstates employee who spoke out against workplace violence

Arbitrator recognizes that violence faced by employees working in hospitals is a matter of broad public policy concern.

Background

Sue McIntyre had worked as a registered practical nurse for many years when, in 2016, she was unexpectedly asked to speak out at a union conference she was attending on the issue of workplace violence.  Her comments focused on patient violence in forensic psychiatry units. She made general allegations that nurses were targets for violence on understaffed wards, that nurses were told that violence is part of their work, that nurses were often blamed by their employer for being assaulted, that nurses were thanked for “taking one for the team,” and that nurses faced reprisals for reporting incidents of violence or demanding increased security.

These comments were included in a press release issued by the Union and made their way onto the website of a local newspaper, where they were seen by the grievor’s employer, the North Bay Regional Health Centre (“the Hospital”).  The Hospital fired the grievor, claiming that her remarks had harmed the Hospital’s reputation. Her union, CUPE Local 139, grieved her termination.

The arbitrator’s decision

Following a lengthy hearing, Arbitrator Herlich reinstated the grievor holding that the Hospital had failed to show just cause for termination.  In reaching this conclusion, the arbitrator noted, as an important contextual factor, that “there is no doubt that violence faced by employees working in hospitals is a matter of broad public policy concern” and that “[t]he ability of individual employees to express and share relevant workplace experiences is critical to the success of any effort to stem the incidence of violence in Ontario hospitals.”

The arbitrator found that the statements made by the grievor, while untrue to the extent that they reflected directly on the grievor’s own hospital, were not false when considered as comments of a general nature applicable to hospitals across the province.  In this regard, he considered that the grievor’s statements and the concerns they reflected were consistent were consistent with reports on hospital workplace violence published by the Ontario Hospital Association and the New England Journal of Medicine.

The arbitrator found that some discipline was nonetheless warranted, given that the extent to which the comments were not truthful and were likely to have caused the employer harm.  However, he was satisfied that discharge was not a just and reasonable penalty in the circumstances, considering especially that the grievor did not intend for her comments to be public and they were only reported publicly for a few hours before they were taken off the newspaper’s website at the grievor’s request.  The arbitrator held that a written warning or a minor suspension would be just and reasonable in these circumstances, but owing to (unrelated) disciplinary notations that the grievor already had on file, he substituted the “more severe” penalty of a one-week suspension.

The arbitrator denied the Hospital’s request to award damages in lieu of reinstatement.  He was not persuaded that the employment relationship had been irreparably damaged, and stressed that the presumptive remedial response is reinstated.

In the result, the grievor was reinstated to her employment with full back pay (subject to the one-week suspension), without loss of benefits or seniority.

The decision was reported by the CBC, Canadian Occupational Safety Magazine, the Sudbury Star, the Kingston Herald, and Canadian Employment Law Today.

Lawyers

Mark Wright

Practice Areas

Labour Law