Discipline and Discharge - Stewart McKelvey

Discipline and DischargeHotel-Dieu Greys Hospital and OntarioNurses Association (Joanne Jacobs)What happened: Grievor went off work due toinjuries incurred in a motor vehicle accident.Malingering established on the facts: While ondisability leave, the grievor went on a 10 dayfamily camping trip during which time she wasbicycling and swimming. The assistant directorof human resources testified she had seen thegrievor at her son’s hockey games and lacrossegames and the grievor was sitting, standing,walking, clapping and shouting in a wayinconsistent with her claim to physicallimitations. The mployer conducted surveillancefor over 12 days starting on September 12,2009. Surveillance report showed level of activityinconsistent with grievor’s claimed restrictionsand limitations. Employer believed grievor hadcommitted long term disability (LTD) fraud andthat this would eventually be reflected in thehospital’s insurance premiums. Employerfollowed up with the union to inquire into whetherthe grievor’s capabilities had changed. As of theend of October 2009, they had received noresponse. Employer inquired with the grievordirectly to arrange for a meeting for November 3,2009. The grievor wanted to wait until after anupcoming appointment with her family physicianon November 26, 2009. She said she had beenworking at the gym with a trainer and believedthere would be some changes in her restrictions.Based on this conversation, the employerbelieved that the grievor suspected she hadbeen under surveillance. In the end the meetingdid occur on November 3, 2009. At the meeting,the surveillance was disclosed to the grievor andher employment was terminated.What the arbitrator said: Discharge upheld.Arbitrator found that the grievor had engaged indishonest and fraudulent conduct. As a result,there was no question that the hospital had justcause to discipline. He further concluded that onthe facts there was little to support the grievor’srequest for a substitution of lesser discipline withreinstatement. The following factors were ofinfluence: Grievor not a long-term employee; Conduct premeditated – involvedmisleading employer and healthcareproviders; Grievor didn’t acknowledge wrongdoing– continued deception throughouthearing; No evidence of economic hardship onGrievor or her family; and Grievor destroyed degree of trustrequired to maintain employmentrelationship.Credit Valley Hospital and Canadian Union ofPublic Employees (N. Brathwaite)What happened: Grievor discharged for breachof employer’s code of conduct. In September2010, an adolescent outpatient committedsuicide by jumping from the top of multi-levelparking garage. Grievor, who was assigned toclean up the scene, took pictures with his cellphone and posted them on his Facebook pagewith a caption under each picture. They weredeleted the following day.- 5 -