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North York General Hospital v Ontario Nurses’ Association, 2016 CanLII 27026 (ON LA)

Date:
2016-01-11
Citation:
North York General Hospital v Ontario Nurses’ Association, 2016 CanLII 27026 (ON LA), <https://canlii.ca/t/gr935>, retrieved on 2024-03-29

IN THE MATTER OF AN ARBITRATION PURSUANT TO

THE LABOUR RELATIONS ACT, 1995

 

 

BETWEEN

 

NORTH YORK GENERAL HOSPITAL

(the “Hospital”)

 

AND

 

ONTARIO NURSES’ ASSOCIATION

 (the “Union”)

 

                                       GRIEVANCES OF NURIA ABDOSH                                       

 

 

 

 

 

BEFORE                                Diane Brownlee

 

 

 

 

APPEARANCES

 

FOR THE UNION                Rebecca Lee Birtwistle, Labour Relations Officer (Litigation)

                                                Wendy Martyn, Grievance Chair

                                                Brandon Walker, Labour Relations Officer

                                                Nuria Abdosh, Grievor

                                               

           

FOR THE COMPANY         H. P. Rolph, Counsel

Michael Ward, Manager, Labour Relations

Andrea Ennis, Clinical Team Manager, Emergency Services

                                                                                               

 

 

 

 

A HEARING IN THIS MATTER WAS HELD IN TORONTO ON FEBRURY 13, MAY 21, JUNE 9, NOVEMBER 4 AND 10, AND DECEMBER 19, 2014; AND APRIL 10 AND 23, MAY 12, JULY 6, JULY 23 AND SEPTEMBER 3, 2015

 

 

 

 

AWARD

 

 

[1]               There are three Grievances before me.  The first Grievance pertains to a three day suspension that was imposed on the Grievor in relation to the care she provided for a patient on February 17, 2013.  The second Grievance pertains to a five day suspension that was imposed on the Grievor in relation to the care she provided to two different patients, on October 28, 2013 and December 3, 2013.  The third Grievance pertains to whether the Hospital met its duty to accommodate the Grievor’s religious obligation to pray, and whether the Grievor is entitled to compensation for shifts missed as a result of the delay in reaching an accommodation agreement.

 

[2]               The Hospital called Andrea Ennis, Clinical Team Manager, Emergency Services; Maria Stathopoulos, Human Resources Management Partner; Delia Veta-Attard, Human Resources Management Partner; Helen Kelly, Clinical Nurse Educator; Lynn Johnson, Crisis Nurse; and Dr. Jonathan Lee, Psychiatry Resident, to testify.  The Union called Wendy Martyn, Grievance Chair; Brandon Walker, Labour Relations Officer; and the Grievor, to testify.  I have carefully considered the testimony of the witnesses and the documentary evidence and I find the facts to be as follows.

 

Background Facts

 

[3]               The Grievor is a Registered Nurse who was hired on May 28, 2012 as a part time nurse in the Emergency Department.  The Grievor has many years of experience as an Emergency Nurse, in Canada and in other parts of the world.  Prior to being hired by the Hospital in 2012, the Grievor was employed by an Agency and worked at the Hospital’s Emergency Department as an Agency nurse in recent years.

 

[4]               The Emergency Department at the Hospital is one of the busiest Emergency Departments in Ontario, seeing over 100,000 patients per year. 

 

[5]               The Grievor is a practicing member of the Muslim faith and has a religious obligation to pray five times per day.   The Grievor testified that when she worked in the Emergency Department as an Agency Nurse, that she would self-accommodate her need to pray, by working out her break times with her coworkers so that her break time coincided with her prayer times.  The Grievor testified that this approach worked well for her. 

 

[6]               When the Grievor was hired in May 2012, she did not discuss her need for accommodation with her Manager, Ms. Ennis.  However, the Grievor continued her practice of self-accommodation with her co-workers.  The Grievor testified that this worked well for a time, however, in approximately August 2013, she became aware from a charge nurse that some of her coworkers were complaining about the Grievor's break time.  This led the Grievor to begin a formal process to seek accommodation in September 2013. 

 

[7]               For reasons that will be fully canvassed in this Award, the parties were unable to finalize an accommodation agreement until February 2015, a period of approximately 16 months.  The Grievor is seeking compensation for missed shifts caused by the delay.

 

[8]               It is the Grievor's belief that the five day suspension that she received for the patient care events that occurred on October 28, 2013 and December 3, 2013 is connected to her request for accommodation and is a violation of The Ontario Human Rights Code.  The Grievor also believes that Ms. Ennis subjected the Grievor to undue scrutiny as a result of the Grievor's request for accommodation.  

 

Patient Care Event on February 17, 2013 (Three Day Suspension)

 

[9]               The incident that led to the Grievor’s three day suspension occurred on February 17, 2013.  The Grievor removed restraints from a violent patient without doing a psychiatric assessment.

 

[10]           The Grievor was scheduled to work from 0700 to 1900.  When the Grievor reported for her shift, one of her assigned patients was a man who had arrived at the Emergency Department at approximately 0500, two hours before the start of the Grievor’s shift.  The patient had been brought to the Emergency Department, in handcuffs, by police, who had responded to a 911 call involving violent behaviour at a gym.   The patient was a large, muscular man, weighing approximately 250 pounds.

 

[11]           The Grievor received report from the night nurse.  The Grievor testified that the night nurse reported to her that this patient had come in at 0530 in the morning with the police, and that the patient had been loud at the YMCA, but did not report anything else of significance. 

 

The Grievor’s initial observations of this patient

 

[12]           The Grievor testified that as she was walking past this patient’s room, that he was “a little bit loud” and that she heard him asking when the doctor was coming to see him.  The Grievor testified that she checked on all of her assigned patients and that when she returned to Room 2, the patient was talking to the Security Officer.  The Grievor testified that she introduced herself to the patient, but that the patient did not look at her or interact with her in any way. 

 

[13]           At 0715, the Grievor charted that the patient was standing in the room “yelling ++, security by the side, standing with the patient.”  The Grievor charted that she was unable to assess the patient at that time, because the patient was yelling, and so she needed to wait until the patient was settled to assess him.  Ms. Ennis testified that the notation “unable to assess” is made when a staff member does not assess a patient because the staff member is at risk.

 

[14]           The Grievor was busy with her other patients between 0715 and 0800, and therefore the Grievor was not involved in two significant aspects of the patient’s care during that time.  These significant aspects are that the patient was both chemically and physically restrained.     

[15]           The restraint process was not charted in the patient’s chart; however, the Security Officer’s report was entered into evidence.  The Security Officer’s report indicates that at 0740, the patient began to escalate rapidly and began to scream verbal threats such as “I’m gonna tear this place apart” and “I’m gonna lose it”.  The Security Officer recorded that the patient was on the verge of becoming uncontrollable, when two Toronto police constables (who were at the Hospital for another matter) came to lend a hand and talk to the patient.  The police constables called for back-up, and as a result of this, an additional six police officers and a sergeant responded to the call.  It is not clear exactly how many police officers and security guards were involved in transferring the patient from being handcuffed to the bed, to being restrained in four points on a restraints bed.  However, it is clear that six officers, two security guards and a sergeant were present while the restraints were applied, and that two police officers and the sergeant remained after the restraint process was completed.

 

[16]           The Grievor testified that she did not notice any loud yelling or commotion during the time that the patient was being restrained. 

 

[17]           Although the Grievor was not involved in the restraint process, the Grievor was aware that the patient was in four point restraints, and the Grievor charted at 0815: “and 4 pt restraints as writer is with other patient.”  No written order for restraints was made until later in the day.  However, the Grievor acknowledged that she understood that a doctor’s order was necessary before a patient would be placed in four points, so the Grievor did not doubt that a verbal order had been given for the four point restraints.

 

[18]           After the patient was restrained, the charge nurse prepared and administered chemical restraint medication to the patient.  The Grievor was aware that the charge nurse had given the medication, and the Grievor charted at 0815:  “meds given to calm him by the charge nurse”. 

 

[19]           Even though the Grievor had not been involved with the care for the patient from the time that she started her shift and 0815 when she made the chart notations noted above,  the Grievor had available to her a significant amount of information about the patient.  One source of information was the report that the Grievor received from the night nurse.  The Grievor also had available to her a number of documents in the patient’s chart.  

 

[20]           The Grievor had the Emergency Department Triage Form, which was created at 0502, and which stated that the patient was brought to Hospital by police, under the Mental Health Act.  The notes on the Triage Form stated that the patient was found at a YMCA, where he had kicked in the door and was yelling and screaming, and throwing items at other people.  The documentation said that the patient was unsure of what had happened and did not know why he was at the Hospital.  The triage nurse noted that the patient was in handcuffs, and was speaking in full, clear sentences and “talking ++”.  His previous medical history was psychosis and bipolar mood disorder.  His acuity was level 2, which is a very high level of acuity.  Ms. Ennis testified that only patients with cardiac arrest or who have stopped breathing are rated at a higher level of acuity than 2.

 

[21]           The Grievor also had the form “Contact with Emotionally Disturbed Patient”, which was completed by a police officer who accompanied the patient to the Hospital.  This form indicated that the patient had kicked out the glass portion of a door at a gym, that he was yelling and acting hostile, and that he threw a wooden stick back and forth in the gym endangering the other gym members.  The section titled “Officer’s Observations” included the following additional observations:  “talks to self; repeated loud yelling; and magical speech.”

 

[22]           The Grievor also had the Form 1 completed by the Emergency Room Doctor at 0600, where the doctor recorded that he had reason to believe that the patient had threatened or was threatening to cause bodily harm to himself; and that the patient had behaved or was behaving violently toward another person.  The Form 1 contained the doctor’s opinion that the patient was suffering from mental disorder of a nature or quality that likely would result in serious bodily harm to himself and serious bodily harm to another person.  (my emphasis)

 

[23]           In addition to the chart notation that the Grievor made at 0815, the Grievor made chart notations throughout the day in both the “Nursing Notes” section of the chart, and on the “Restraint Application Flow Sheet”.

 

[24]           At 0800, the Grievor charted on the “Restraint Application Flow Sheet” by placing a checkmark in the following categories:  “confused, Anxious: agitated/restless, and Defensive: verbal abuse/intimidation”.

 

Removal of the First Restraint

 

[25]           At approximately 1000, the Grievor decided to remove the patient’s right hand restraint.  The events that led to the Grievor’s decision to remove a restraint are as follows. 

 

[26]           At 0957, the Grievor charted that the patient was responsive to verbal stimuli and that he told her that he was hungry.  The Grievor testified that she asked the patient if he could feed himself and that he told her that he needed one hand free.  The Grievor asked the Security Officer who was present with the patient, to remove one of the restraints.  The Security Officer refused to remove any of the restraints, and told the Grievor that “Lynn”, the crisis nurse, told him not to remove any restraints

 

[27]           The evidence on how the decision to remove the first restraint was made, differs as between the written report of the Security Officer, the Grievor’s testimony and the testimony of the crisis nurse, Lynn. 

 

[28]           The Grievor testified that when she asked the Security Officer if he could let the patient have one hand free, that the Security Officer would not remove any of the restraints without consulting with Lynn, the crisis nurse.  The Grievor testified that she and the Security Officer went together to Lynn’s office to ask her about removing a restraint, and that Lynn agreed to remove one restraint.  The Grievor testified that this discussion and agreement took place in Lynn’s office.

[29]           However, Lynn testified that the Grievor and the Security Officer did not come together to her office.  Rather, Lynn testified that first the Security Officer came to speak to her and then the Grievor came, separately, to speak to her.  Lynn testified that she told the Grievor that she did not think it was a good idea to remove any restraints because the patient was still making threats.  The Grievor disputed that Lynn expressed any concern or disagreement with removing one of the restraints.

 

[30]           The Security Officer’s report states that when the Grievor requested that the patient be removed from restraints that he refused to do so because of the patient’s unpredictability.  He reported that the Grievor went to speak to Lynn.  He reported that at 1007, both the Grievor and Lynn advised him to remove one arm restraint.  The Security Officer’s report stated that the Security Officer protested this request because the patient was sedated, and the Security Officer believed that a choking hazard existed because the patient might fall asleep while eating. 

 

[31]           The Security Officer’s report stated that the Grievor said to him “this is not a jail.  This is our hospital”.  The Grievor disputed having made this comment.

 

[32]           The main point of contention in this evidence is that the Grievor testified that Lynn did not advise against removing the first restraint, and that Lynn testified that she did advise against it.  In any event, the evidence suggests that both the Grievor and the Security Officer believed that Lynn agreed that one restraint could be removed. 

 

[33]           However, Lynn also testified that her role as crisis nurse is to be a consultant to the nurses who have primary care of the patients.  Accordingly, it is the primary nurse who is responsible for a decision to remove, or not remove, restraints

 

[34]           It is also clear from the testimony of the Grievor and Lynn that the Grievor said that she would assume full responsibility for the removal of the restraint.  The Security Guard removed the right arm restraint, and at 1000 the Grievor charted that she assisted the patient with feeding.

 

[35]           The Grievor testified that at approximately 1200 the patient became incontinent, which caused the bed to become very wet and caused the patient to be very uncomfortable.  The Grievor testified that the Security Officer helped her to change the bed.  The Grievor testified that during this time the patient did not show any resistance or intimidation, but was peaceful the whole time.  In light of this, the Grievor suggested to the Security Officer that they remove a leg restraint, leaving the patient in two point restraints.  The Grievor testified that the Security Officer agreed with this. The Security Officer removed the left leg restraint at approximately 1230.  The patient remained in 2-point restraints for the remainder of the Grievor’s shift, without incident. 

 

[36]           At 1330 the Grievor charted that the patient was “asleep, drowsy responsive to verbal stimuli, unable to feed”.  At 1420 the Grievor charted that the patient had lunch and that nicotine gum was given.  At 1430 and at 1530 the Grievor charted that the patient was resting. 

 

[37]           At 1630 the Grievor charted that the patient was awake and agitating.  At approximately this same time, Resident Dr. Jonathan Lee and Psychiatrist Dr. Emelianova were in the room assessing the patient.  Dr. Lee testified that he and Dr. Emelianova were very surprised and concerned to find the patient in two point restraints, rather than four points.  Dr. Lee testified that this patient was very violently ill and could do “a lot of damage” to the people around him.  Dr. Lee testified that he and Dr. Emelianova discussed putting this patient back into four point restraints and that Dr. Emelianova wrote an order to that effect.  Dr. Emelianova’s order was written at 1640 and said: “Please do not remove 4 points restraints without consulting with the psych team (due to significant risk of violence).”  (Underlining in original). 

 

[38]           The Grievor testified that she was not aware of the 1640 doctor’s order not to remove restraints without consulting with the psych team.  The Grievor testified that she did not have the portion of the chart that contained the doctors’ orders.  Rather, the Grievor believed that Lynn, the crisis nurse, had that portion of the chart.  Furthermore, no one brought the 1640 doctor’s order to her attention. 

 

[39]           The Grievor testified that at approximately 1820 or 1830, Lynn brought the doctor's orders portion of the chart from the psych room to the nurses’ station and that the Grievor reviewed the chart to see if anything more needed to be done for this patient.  That was when the Grievor became aware of the 1640 doctor’s order for four point restraints

 

[40]           When the Grievor saw the doctor’s order not to remove any restraints without consultation with the psych team, she was surprised, because she had never seen an order like this before.  The Grievor decided to speak to the doctor about the order, and approached Resident Dr. Lee to ask about the order.  The Grievor testified that she told Dr. Lee that she had just now seen the order, even though it had been written almost two hours before, and she told him that she had never seen an order requiring consultation with the psych team, but rather that the decision to remove restraints was usually left to nursing discretion.  The Grievor testified that she was frustrated that the nurses were not included in the decision making and that she told Dr. Lee that she was going to speak to her manager about it.

 

[41]           The interaction between Dr. Lee and the Grievor was unsatisfactory for both of them.  The Grievor was frustrated and upset because she interpreted the doctor’s order to be excluding her from any decision to remove restraints.  Dr. Lee was taken aback by the Grievor’s approach and tone, which he said was “diminutive, condescending and intimidating”.  Dr. Lee told the Grievor that he was going to report her behaviour to the Grievor’s manager.  The Grievor disputed that she spoke to Dr. Lee in an inappropriate manner.

 

[42]           This interaction between the Grievor and Dr. Lee is part of the context of the situation; and it is one of the ways that Ms. Ennis became aware that the Grievor had removed two restraints for this patient.  However, while Ms. Ennis was concerned about the interaction between the Grievor and Dr. Lee, and she brought to the Grievor’s attention her expectations about collegial and respectful communication, Ms. Ennis testified that she did not rely on the interaction between Dr. Lee and the Grievor in making her decision to discipline the Grievor.  Accordingly, it is not necessary for me to resolve any of the differences in the testimony of the Grievor and Dr. Lee concerning this interaction, nor will I put any weight on Ms. Ennis' concerns about the Grievor's behaviour in her interaction with Dr. Lee in deciding the issues in this case.

 

[43]           In any event, the Grievor testified that after speaking to Dr. Lee, she looked for a security officer so that the two restraints could be re-applied; however no security personnel were present in the department because they were busy with a Code White.  When the night nurse arrived for her 1900 shift, the Grievor gave her report.  The Grievor testified that she asked the night nurse to ask security to put the restraints back on the patient.  The Grievor testified that she assumed that the night nurse would put the restraints back on. 

 

[44]           The night nurse decided to consult with the psych team about the situation of the patient being in two point restraints when there was an order for four point restraints.  The night nurse charted that a team decision was made to keep the patient in two point restraints until such time as it proved necessary to increase the restraints.  The patient escalated into another violent episode and went back into four point restraints at approximately midnight.

 

Policy of Least Restraint

 

[45]           The Hospital has a policy on the use of restraints.  This policy supports a philosophy of least restraint/last resort.  The policy says that restraint is only used to prevent serious bodily harm by a patient to self or to others.  Before restraints can be applied, there must be a complete assessment and analysis of the patient’s behaviour and a doctor’s order for restraints

 

[46]           The use of four point restraints is described as an extraordinary measure, to be used only when all other measures of less restraint have been considered and/or exhausted and deemed to be ineffective.  (emphasis in original)

 

[47]           For an emergent situation, as was the case here, the assessment must include the patient’s history in relation to prior application of restraint, and the condition(s) or precipitating event(s) that led to the initial application of restraint

 

[48]           With respect to the initiation of the de-restraint process by a nurse, the policy states:  "Nurses can initiate the de-restraint process by gradually reducing the amount of restraint based on the working team’s plan and the patient’s response.  Nurses can increase restraints back up to the current Physician’s order". 

 

[49]           The documentation required for the reduction or removal of restraints includes:  date and time the restraint was removed; amount of reduction and what restraint remains; description of the patient’s behaviour that supported restraint reduction/removal; patient’s tolerance to the reduction/removal of restraints; plan of care developed with the patient during the de-brief.

 

 

The Hospital’s Investigation

 

[50]           Ms. Ennis became aware of the situation on the morning of February 18, when she received the following email from the night nurse, Tonja Bowman:

 

“I received report from day staff regarding an extremely aggressive/violent patient in sub acute room 2.  The patient was placed on a form 1 when brought to the ER due to violent behaviour.  There was a specific order to NOT remove 4 point restraints WITHOUT consulting the psych team.  As I was receiving report, the day RN stated that “she did not agree with the order, as she was not a “zoo keeper” and proceeded to use her own discretion to remove 2 restraints, as the patient was calm and cooperative.  The patient remained calm and cooperative with me during my shift until around midnight when we had to put him back in 4 point restraints (as you will read in my charting, I spoke with crisis, psych resident, charge nurse and security and as a team decided that until needed we would keep him in 2 point restraints) I am emailing you because I am concerned that HAD this patient become extremely violent, not only my safety, but safety of other staff members would have been at risk.”

 

[51]           The Grievor disputed that she told the night nurse that she was “not a zoo keeper”.

 

[52]           Ms. Ennis also received a formal complaint by email from resident Dr. Jonathan Lee, about the interaction that he had with the Grievor.  Dr. Lee told Ms. Ennis in his email that he felt that the Grievor had approached him aggressively, had spoken to him in a condescending tone of voice and with a curt and intimidating manner.

 

[53]           Ms. Ennis testified that she also received, anonymously, a copy of the patient’s chart under her door, along with an anonymous concern about the Grievor’s care of the patient.

 

[54]           The Grievor testified that when she came into work on Monday February 18, that she went to Ms. Ennis’ office to report her concerns about being excluded from the decision making concerning the reduction/removal of restraints.  The Grievor testified that Ms. Ennis did not listen to her concerns, and that Ms. Ennis was upset and spoke to her in a loud voice, telling her that she was going to book a meeting to discuss the situation with the Grievor’s union and with Human Resources. 

 

[55]           Ms. Ennis testified that the standard practice in a circumstance where concerns have been raised about nursing care is to ask the Clinical Nurse Educator to do a formal review of the patient chart.  Ms Ennis asked Helen Kelly, Nurse Educator, to do a review of the chart.  Manager Ennis testified that she herself did a brief review of the chart and that Nurse Educator Kelly did a more thorough review.

 

[56]           A Nurse Educator has a number of functions:  to make sure that the nurses have the knowledge, skill and judgment to provide the proper nursing care;  to update the nursing staff on the best practice guidelines;  and to be involved when a nurse is placed on a learning plan or other plan to grow in knowledge and skill.  The Nurse Educators are also available to nurses in the event that a patient is deteriorating and the nurse feels that he or she needs help. 

[57]           Nurse Educator Kelly testified that she reviewed the Grievor’s charting so that she could understand how this patient went in and out of restraints so quickly. She noted that it had taken four security guards and a number of police officers to get the patient into restraints, and that the patient had been given a lot of medication before that.  She testified that the Grievor should have given the patient time to process the medication and let the medication wear off, and then reassess the patient as to his mental status before removing any restraints.  She testified that restraints should not be removed while a patient is still heavily medicated. 

 

[58]           Nurse Educator Kelly testified that she spoke to the Grievor on Monday February 18 because she wanted to hear the Grievor’s thoughts about the situation and to understand the Grievor’s perspective.  She testified that the Grievor told her that she was “not a zookeeper” and “we don’t lock up people like animals.”  Nurse Educator Kelly testified that she was concerned to hear this and wanted to understand whether the Grievor made her decision to remove the restraints because she thought that the patient was being treated like an animal, or whether the Grievor had assessed the patient and decided that it was safe to remove the restraints.

 

[59]           The Grievor disputed that she said to Nurse Educator Kelly that she was “not a zookeeper”.

 

[60]           After reviewing the chart herself, and receiving Nurse Educator Kelly’s review of the chart, Ms. Ennis was concerned that the Grievor had not conducted any type of psychiatric assessment before removing two of the restraints, and that there was no documentation in the patient’s chart of any rationale to remove the restraints.  Ms. Ennis testified that she could not tell from the chart what the Grievor based her decision on or why the Grievor believed that this patient could be taken out of restraints

 

[61]           Ms. Ennis testified that the best practice is that a patient is not taken out of restraints until there is a change in the patient’s condition.  Ms. Ennis testified that the decision to take a patient out of restraints requires the same amount of assessment as when the restraints are being applied.  Ms. Ennis testified that it is unsafe to remove restraints without a full psychiatric assessment, and Ms. Ennis expected to see documentation of the patient’s mood, insight, delusions, thought process, how he is speaking, and flight of ideas to support the decision to remove restraints

 

[62]           Ms. Ennis also had the impression that the Grievor removed the restraints because she did not agree with the order that required consultation with the psych team before removing the restraints.  Ms. Ennis had this impression because of the report of the night nurse, that the Grievor told her that she disagreed with the order and that she is “not a zookeeper”.  Ms. Ennis scheduled a fact-finding meeting with the Grievor for February 26, 2013. 

 

[63]           The February 26, 2013 meeting was attended by Ms. Ennis, Nurse Educator Kelly, Delia Veta-Attard (Human Resources), the Grievor and her Union representative Carolyn Edgar.  Ms. Edgar is the local bargaining unit president for ONA.

 

[64]           The purpose of the February 26 meeting was to conduct a fact-finding with the Grievor so that Ms. Ennis could understand what had happened.  Ms. Ennis testified that she told the Grievor that concerns had been raised and she asked the Grievor to walk her through the case.  Ms. Ennis testified that the Grievor explained that she was busy with other patients early in her shift and that was why the charge nurse gave the medication at 0815.  The Grievor also explained that she had a background with violent mental health patients and that she was comfortable with it.  However, Ms. Ennis testified that the Grievor did not provide any rationale as to why she removed the restraints.  Ms. Ennis testified that the parties had a full discussion of the events, including the Grievor’s discussion with the Resident Dr. Jonathan Lee, where the Grievor had a different opinion of the interaction and felt that she had not been argumentative or aggressive. 

 

[65]           During the meeting, Ms. Edgar asked for a break to speak with the Grievor.  When Ms. Edgar and the Grievor returned to the meeting, the Grievor said, “If everyone is saying that I did something wrong, then I did something wrong.”  Ms. Ennis testified that she was very happy and hopeful to hear the Grievor say this because up until that point in the meeting the Grievor was not showing any understanding of the seriousness of the situation and had been unable to explain why there had been no psychiatric assessment for an entire 12 hour shift.  Ms. Ennis also testified that concerns are an opportunity for learning. 

 

[66]           The Grievor agreed to write a reflection which would be submitted the following Monday.  The College of Nurses requires all nurses to engage in reflective practice wherein a nurse identifies where he or she went wrong, the contributing factors to a situation, acknowledges error and identifies how to move forward and learn from the situation.  Ms. Ennis testified that she hoped that the Grievor would identify in her reflection that there were significant issues in the care that she had provided the patient. 

 

[67]           The Grievor provided her reflection to Manager Ennis and Nurse Educator Kelly on Monday March 4, 2013.

 

[68]           In her reflection, the Grievor wrote that she was taking care of another patient when she noticed four police officers and four security guards in the patient’s room, and she also saw that the charge nurse was preparing medication for the patient.  The Grievor wrote that she asked the charge nurse what had happened and why all these police officers are here, and that the charge nurse told her that the patient was extremely violent and dangerous.  The Grievor wrote that while the charge nurse administered the medication, she left to complete some documentation for another patient.  The Grievor wrote that when she returned to the room, that the patient was already in four point restraints and that she had not heard any loud voices or any excitement during the restraint process. 

 

[69]           The Grievor wrote that the patient told her at approximately 1000 that he was hungry and that she asked the Security Officer to remove the right wrist restraint but that the Security Officer would not remove the restraint without consultation with the crisis nurse.  The Grievor wrote that she spoke with the crisis nurse who agreed that the right wrist restraint could be removed.  

[70]           The Grievor wrote that at 1200 that the patient was incontinent of urine and that she cleaned and changed the patient.  At this point, the Grievor removed a second restraint.  The Grievor wrote that the patient behaved cooperatively and she left him in two point restraints until 1630 when the crisis nurse asked her to give the patient more chemical restraint medication.  The Grievor questioned why there was a need for more medication and the crisis nurse told her that the psychiatrist wanted him to have it. 

 

[71]           The Grievor wrote that at approximately 1820 the crisis nurse brought the patient’s chart to the nursing station and that she picked it up to see if there was any new order and that is when she saw the order not to remove the four point restraints without consultation with psych team.  The Grievor’s interpretation of this order was that the Emergency Room nurse was not included in the consultation.  The Grievor wrote, “I was very disappointed by the order because during all my nursing practice in different area including psych unit, I have not seen such order, what I have seen and noted was when the physician write the restraints orders always they add ward privileges to the patient with nursing discretion.”

 

[72]           The Grievor did not acknowledge any shortcomings or errors in her care of the patient, but she did write, “If I would go back and do it differently I would have stay a bit longer 10 – 15 minutes and help to put the rest of two point restraints back to the patient.  I do understand for a new grad RN receiving a big man with a history of violence behaviour it was very intimidating and I understand how these patients could turn deadly and violence and we need to take extra precautions to ourselves while we take care of them.”

 

[73]           Ms. Ennis was not satisfied with the Grievor’s reflection.  Ms. Ennis testified that she was looking for the Grievor to acknowledge that she violated the College of Nurses standards when she removed the restraints without doing a psychiatric assessment and that she put others at risk by doing so.  Instead, Manager Ennis testified that what the Grievor provided was a timeline of what transpired. 

 

[74]           Nurse Educator Kelly testified that after reading the Grievor’s reflection, she did not think that the Grievor understood the gravity of the situation that she placed herself and other staff in by removing the restraints.

 

[75]           Ms. Ennis testified that in light of the lack of acknowledgement on the Grievor’s part that she had violated College standards when she removed restraints without doing a psychiatric assessment, the gravity of the situation, the danger that people were placed in and the fact that the Grievor had willfully removed the restraints and placed staff and herself at risk, that Ms. Ennis believed that a 3 day suspension was appropriate.

 

[76]           On March 26, 2013, the Hospital issued a three day suspension to the Grievor, for lack of a proper assessment, for jeopardizing her safety and the safety of others, lack of accountability and lack of reflection. 

 

[77]           Both Ms. Ennis and Nurse Educator Kelly testified that placing the Grievor on a learning plan was not an appropriate course of action because the Grievor never acknowledged that she had done anything wrong.  In a situation where a nurse does not acknowledge that he or she did something wrong, there is “nothing to work with” in a learning plan.  

 

[78]           In the discipline letter dated March 26, 2103, Ms. Ennis expressed the February 17 situation in the following way:

 

"On February 17, 2013 you were scheduled to work a day shift and were assigned to a patient who presented in the Emergency Department exhibiting significant violent and erratic behaviours.  Upon presentation in the Emergency Department the patient underwent a psychiatric assessment by a physician and the physician ordered that the patient be restrained in four point restraints as well as being medicated.  As a result of concern for safety based on the patient’s escalating violent behaviours, security staff were contacted to assist in restraining and medicating the patient.  However, as a result of the patient’s size, stature and behaviours, it was necessary to contact police for assistance in proceeding with restraining and medicating the patient.

 

…….

 

It was obvious that the patient posed a significant risk to staff, the public and himself and that medical sedation as ordered and the 4 point restraints were necessary to ensure safety.  However, you proceeded to enter the patient’s room to assess the patient at 9:15 am and you then proceeded to remove 2 of the patient’s restraints.  At the meeting held on March 4, 2013, you indicated that you removed two of the patient’s restraints after you entered the crisis room to assess the patient and that the patient was drowsy.  You did not however perform any kind of psychiatric assessment to substantiate the decision to contradict the physician order for the restraints, nor did you consult with the physician or other appropriate resources such as the crisis nurse, the clinical nurse educator or myself.  Your failure to do so and yet proceed to remove the patient’s restraints demonstrates a lack of critical thinking and a flagrant disregard for the safety of staff, physicians, patients and the public. 

 

……

 

Furthermore, at approximately 16:40, the physician documented that the patient is to remain in 4 point restraints at all times, even when sedated with medication and that the restraints are not to be removed from the patient.  You however failed to adhere to the physicians order and did not place the patient back into the 4 point restraints.  In fact you willfully disregarded the order and did not place the patient back in the 4 point restraints for the remainder of your shift and continued to expose staff, physicians and the public to significant safety risks. 

 

………..

 

Not only is your lack of proper assessment a concern in this case, your lack of accountability and reflection is also a concern.  You have not demonstrated any reflection and in fact at the meeting held on March 4, 2013 you failed to acknowledge the seriousness of the situation and your actions indicating that if others insisted that your actions were incorrect then you would have to accept that.  This does not demonstrate reflection, your actions had the potential to result in significant safety risks and you have failed to identify this risk and take accountability for exposing other staff physicians and the public to this risk. 

 

Your behaviour constitutes misconduct.  In light of this and in light of your failure to acknowledge the seriousness of your actions, you are being issued a three (3) day suspension ….”

 

[79]           With respect to Ms. Ennis’ concern that the Grievor had not conducted a proper psychiatric assessment before removing the restraints, the Grievor testified that she was assessing the patient’s coordination and ability to eat when she decided to remove the right wrist restraint.  The Grievor testified that the patient was hungry because he had had nothing to eat and had been up all night, and that she felt that he could feed himself because he did not have any weakness in his throat muscles.  Accordingly, the Grievor’s thought process was to see how the patient was managing with feeding himself.

 

[80]           The Grievor testified that she did not put back the right wrist restraint after the patient ate, because the patient was cooperative.  The Grievor testified that this is the first step in removing restraints.  The Grievor testified that the patient was “a big strong man and he could have punched us with that one arm if he intended to – but he was not doing that”.

 

[81]           The Grievor testified that she did not consult with anyone on the health care team about removing the second restraint because the RN has full authority to remove restraints if the patient is cooperative and calm.  The Grievor testified that the way that the nurses control aggression is to take care of the patient and not punish them.  Accordingly, the Grievor testified that she did not go beyond the Policy of Least Restraint, but rather that she reinforced the policy. 

 

[82]           The Grievor testified that she decided to remove the leg restraint because the patient had been cooperative after the wrist restraint was removed.  The Grievor testified that it would not be appropriate to leave the patient lying down in one position all day, and that if the patient had had any skin breakdown because of the restraints, that would be “on her shoulders”.  The Grievor testified that she promised the patient that if he continued to cooperate, that she would remove all of the restraints

 

[83]           The Grievor testified that she thought that was the best way to manage the situation, and that if the patient was able to differentiate between right and wrong and bring his thoughts together, and communicate in reality that it would be appropriate to continue to remove the restraints

 

[84]           The Grievor agreed that the patient was drowsy most of the day because of the heavy medication that he had been given, and that she based her decision to remove the restraints on the fact that the patient was drowsy, and also cooperative.  However, although the Grievor testified that she was conducting this assessment in her care of the patient, the Grievor did not document any psychiatric assessment in the patient’s chart to support her decision to remove one, and then a second restraint

 

[85]           Nurse Educator Kelly testified that she was not surprised that the patient was cooperative since he was heavily sedated.  Nurse Educator Kelly testified that restraints cause aggravation and that is why medication is also given.  Nurse Educator Kelly testified that the time to remove restraints is not when a patient is sedated, but rather after the medication has worn off.  That is the time to do a full psychiatric assessment to get a sense of where the patient is rather than where the medication is.  Nurse Educator Kelly testified that not enough time was provided for this to happen safely. 

 

[86]           With respect to Ms. Ennis’ concern that the Grievor willfully disregarded the physician’s 1640 order for 4 point restraints by not placing the patient back into restraints when she became aware of the order, the Grievor testified that was not the case.  The Grievor testified that Dr. Lee saw the Grievor give medication to the patient at 1630, when security was also in the room and that Dr. Lee could have asked her at that time to put the patient back into four points.  However, no one brought the 1640 order to her attention at a time when she could have carried out the order.  The Grievor testified that when she became aware of the order at 1830, no security officers were in the Emergency Department because they were busy with a code white.

 

[87]           When asked by Hospital Counsel if she thought she had done anything wrong with this patient, the Grievor testified that she could have stayed a bit longer to assist the night nurse who had less than one year of experience.  

 

Patient Care Events on October 28, 2013 and December 3, 2013 (Five Day Suspension)

 

[88]           The Hospital imposed a 5 day suspension on the Grievor for patient care incidents on October 28 and December 3, 2013.

 

October 28, 2013 Incident

 

[89]           On October 28, 2013, the Grievor was working a day shift, from 0700 to 1900.  At 1735, while the Grievor was on break, a patient was brought into one of the Grievor’s patient rooms.  The patient was assessed by the Grievor’s nursing partner, who was covering the Grievor’s assignment while the Grievor was on her break.  The nursing partner put the patient on a heart monitor. 

 

[90]           The Grievor testified that when she returned from her break at approximately 1805, she received report from her nursing partner.  The Grievor testified that her nursing partner reported that this patient had a temperature of 37.6, had been coughing for a week and lived in a group home.  The Grievor testified that her nursing partner did not report anything that would indicate that this patient had any symptoms that needed attention. 

 

[91]           When the Grievor took over the care of the patient, the Grievor had the Emergency Department (ED) Triage Form, which indicated that the patient had a productive cough, and shortness of breath.  It also listed the patient’s vitals:  temperature 38.6, pulse 91, respiration 25, saturation 98% and blood pressure 119/66.  The ED Triage Form also indicated that the patient had developmental delay, and was sent to Emergency by his family doctor due to high fever and productive cough with shortness of breath. 

[92]           There was a heart monitor strip attached to the patient’s chart that showed that he  had a heart rate of 157.  The patient was Acuity Level 2, which is a high priority.

 

[93]           The Grievor testified that she relied on her nursing partner’s report and did not read the notations on the Triage Form, or the nursing notes or the patient’s recorded vital signs.   The Grievor testified that she understood from her nursing partner’s report that there was nothing that she needed to attend to for this patient.  Accordingly, because the Grievor understood that there was nothing that she needed to do for this patient, she did not provide any care to this patient, or chart anything for this patient for the balance of her shift.  The Grievor used the balance of her shift to look after her other patients, including assisting one with giving a urine sample. 

 

[94]           The Grievor testified that she saw the heart rate strip and was aware that the patient had a high heart rate.  The Grievor testified that she looked in on him when she returned from her break.  She saw that he was sitting up in bed, with his mother at his bedside.  The Grievor testified that she observed that the patient was continuously coughing and she thought that the continuous coughing might be causing the elevated heart rate.  The patient’s mother also told her that the patient had been coughing for a week.  In light of this, the Grievor’s first thought was that the patient “had some lung thing going on – bronchitis or pneumonia”.

 

[95]           With regard to the patient’s high heart rate of 157, which should have caused the heart monitor to alarm, the Grievor testified that she never heard the heart monitor alarm, and she testified that if the heart monitor had been alarming, that she would have heard it.   Ms. Ennis testified that she looked at the heart monitor and that the heart monitor had been suspended.  However, there is no suggestion that the Grievor was in any way responsible for the heart monitor being suspended. 

 

[96]           The Grievor’s shift ended at 1900.  When the Grievor gave report to the incoming night nurse, she reported to the night nurse that the patient was from a group home and had a cough.

 

[97]           Ms. Ennis testified that she received a concern about the Grievor’s care of this patient from the night nurse who took over this patient's care from the Grievor.  Ms. Ennis testified that the night nurse told her that the Grievor reported to the night nurse that the patient had a cough and nothing was wrong.   However, when the night nurse  assessed the patient, the night nurse correctly observed that the patient was very sick, having a fever, tachypnea and tachycardia.  The patient met the criteria for routine blood tests to be done.  The night nurse implemented the medical directive for sepsis, and had the patient seen by an emergency room physician.  The patient was septic, and was admitted to the Intensive Care Unit. 

 

[98]           After receiving the concern from the night nurse, Ms. Ennis asked Nurse Educator Jennifer Page to review the chart and advise her if the concerns were substantiated.  If they were, Ms. Ennis would move forward with a fact finding with the Grievor. 

 

[99]           Ms. Ennis had concerns not only about the care that the Grievor had provided, but also with the care that the Grievor’s nursing partner had provided.   Ms. Ennis testified that once the Grievor’s nursing partner gave report to the Grievor after the Grievor returned from her break, that the accountability for the patient’s care transferred to the Grievor.  Ms. Ennis also testified that she looked at the charts for the Grievor’s other patients to see if some other critical event had occupied the Grievor during this time.   Ms. Ennis testified that this patient was the most critical because of his high heart rate and the fact that he had not yet seen a doctor.  Ms. Ennis testified that she could not understand how a whole hour could go by with no care provided by the Grievor. 

 

[100]      Ms. Ennis testified that when a patient has a heart rate as high as this patient did, and is presenting with the other symptoms of fever and a cough, that the care that should have been provided was to find a doctor, start a line, draw blood work, get a verbal order for Tylenol, notify the charge nurse, do a thorough cardiac exam and complete an EKG.  However, the Grievor did not provide any of this care for the patient.    

 

[101]      Ms. Ennis testified that she conducted fact finding meetings with both the Grievor and the Grievor's nursing partner.  Ms. Ennis testified that the Grievor’s nursing partner was visibly upset about what had happened with the patient, and that a learning plan was implemented for the nursing partner based on multiple contributing factors that had led to the poor care provided by the nursing partner for this patient.  However, in contrast to the response of her nursing partner, the Grievor blamed her nursing partner for the situation and did not accept any responsibility or accountability. 

 

[102]      In the discipline letter, Ms. Ennis expressed the October 28 situation in the following way:

 

“At 1725 patient was brought into one of your patient rooms and was assessed by another nurse who was covering your assignment while you were on break.  It was documented in the notes as well as on the cardiac monitor that the patient had a rapid high heart rate, elevated temperature and low oxygen level.  You returned from your break at 1755. However there was no subsequent documentation or assessment of this patient.  There were no medical directives applied on this patient and no physician was notified of this patient’s elevated heart rate.  Your report to the oncoming night shift nurse consisted of the statement “he has a cough and is from a group home.  The night nurse assessed the patient and realized the gravity of the patient’s condition.  The patient was then assessed by the emergency room physician, care provided and patient was admitted to the Intensive Care Unit. 

 

You had indicated at the meeting that you didn’t remember why you had not addressed this patient’s concerning presentation, but stated that you were “probably doing other things”.  Upon review of your other patient’s charts – one patient was waiting for re-assessment, one patient went to the bathroom and the other you administered an antibiotic too.  You did not provide sufficient reason for your lack of documentation or your insufficient assessment and response to a patient’s critical presentation. 

 

As a Registered Nurse you should have been able to recognize such significantly abnormal vitals.  As an employee of the Emergency Services Program, you should have been able to identify actions to assist this patient, including medical directives, as well as notifying a physician of the patient’s presentation.”

 

[103]      In cross examination, the Grievor agreed that the patient’s high temperature could be an indication of infection.  The Grievor also agreed that a heart rate of 157 is very high and that a cardiogram should have been done and brought to the doctor’s attention.  The Grievor also agreed that this patient met the conditions for routine blood work to be initiated.  However, the Grievor did not initiate routine blood work.

 

[104]        The Grievor testified that she did not do any of these things because she had not done the assessment on this patient, and none of these indications had been brought to her attention.  She acknowledged that if she had sat down and read the chart and the triage notes then “everything could have been changed” but, she testified, that she had to move to the rest of the patients in the time that she had remaining in her shift. 

 

Medical Directive

 

[105]      There is a medical directive in place for ordering laboratory tests in the Emergency Services Program.  Registered Nurses are authorized to carry out the medical directives.

 

[106]      The  Medical directive lists the following required situational circumstances:

 

         The Emergency Services Program Registered Nurse (RN) implements the medical directive to obtain laboratory tests for diagnostic assessment as listed in the Emergency Services Program Problem Based Laboratory Test Order Sets (APPENDIX 1)

         Prior to implementing this medical directive, the RN will complete an assessment of the patient to determine if the problem-based clinical criteria for specific laboratory tests are met. This includes a history, vital signs, current medications and allergies.

         If patient presents with unstable vital signs or a life threatening illness or injury that requires immediate medical intervention the primary nurse will page the emergency room physician STAT prior to implementing the medical directives.

         The RN will notify an emergency physician immediately of any critical results.  This should be the emergency physician responsible for the patient or any emergency physician on duty if patient has not been seen yet.

 

[107]      The Laboratory Test Order sets that are relevant to this patient are:  Routine Blood Work, 12 Lead ECG, Blood Cultures and Serum Lactate.  In cross examination, the Grievor agreed that the patient met the conditions for these medical tests to have been initiated. 

 

[108]      The discipline letter characterized the Grievor’s actions as a failure to meet the College of Nurses Practice Standards for documentation, procedures and authority, and Knowledge.

 

December 3, 2013 Incident

 

[109]      On December 3, 2013, the Grievor was scheduled to work a day shift, from 0700 to 1900.  The Grievor was assigned as the primary nurse for a patient at 1015.  The patient was quite ill, with a high temperature, high pulse, respiratory rate of 22, heart issues and a history of seizures. 

 

[110]      Between 1015 and 1305 there were no issues with the care that the Grievor provided to the patient.  Ms. Ennis testified that the assessment that the Grievor did at 1015 was excellent. 

 

[111]      The concern started at 1305, when the patient had low blood sugar of 2.8.  The Grievor notified a physician of the low blood sugar and received an order to administer D50W, which is a life-saving drug.  The Grievor did not do a physical assessment or chart the patient’s presentation at that time. 

 

[112]      The proper protocol is to check the sugar within fifteen minutes of administering the D50W.  However, the Grievor went on her break after administering the drug and before checking to see whether the drug had the desired result of causing the patient’s blood sugar to rise.  The Grievor testified that her nursing partners were urging her to go on her break, and that she asked her nursing partners to check the sugar at the appropriate time. 

 

[113]      The Grievor administered the D50W at 1305.  The Grievor then went on her break.  She returned from her break at approximately 1400.

 

[114]      When the Grievor returned from her break, the Grievor’s nursing partners did not give her report, and she assumed that her nursing partners had checked the sugar as she had asked them to do, and that the patient had responded, as expected, to the drug.  The Grievor checked on her other patients.  However, at approximately 1440, the Grievor discovered that her nursing partners did not check the sugar because they had received a new patient and they were very busy. 

 

[115]      The Grievor charted at 1445 that the patient had blood pressure of 88/40, which is very low.  The Grievor agreed in cross examination that the patient’s pulse of 64 meant that the patient’s heart was not beating faster to make up for the low blood pressure, which meant that the patient was having heart failure.  The Grievor agreed that this meant that the patient was very ill. 

 

[116]      At 1645, the Grievor charted that the patient’s blood pressure was 76/33.  The Grievor testified that the patient’s blood pressure was becoming critical.  The Grievor testified that she notified the doctor about the low blood pressure, and told the doctor that the patient had been admitted with sepsis, had had no urine output since noon, and had come from a nursing home, with a Do Not Resuscitate (DNR) order.  The Grievor received an order for D5W.  The Grievor testified that she wanted to discuss this order more fully with the doctor,  however the doctor did not have time to speak to the Grievor. 

[117]      The Grievor testified that the doctor asked what the Grievor wanted her to do.  The Grievor testified that she said to the doctor, “I don’t need to tell you what to do”.  The Grievor did not ask the doctor to come and assess the patient at this time.  

 

[118]      At 1715, the patient’s daughter called from California and the Grievor discovered that there was a family dispute about the status of the patient’s “Do Not Resuscitate”  order.  The Grievor advised the charge nurse of the dispute, and the charge nurse contacted social work, who became involved in the issue by 1740.

 

[119]      At 1731, the Grievor recorded in the Vital Signs section of the chart that the patient’s blood pressure was 71/37, with a pulse of 59.  At 1740, the Grievor charted “patient’s condition is getting worse b/p is 63/33 no urine output”.  The Grievor agreed in cross examination that this is a bad sign.  However, the Grievor did no physical assessment and no focused assessment and did not request the doctor to come and assess the patient.  Ms. Ennis testified that when the family dispute about the DNR arose, and in light of the patient's continued deterioration, that it was very important for the Grievor to inform the physician so that the physician could make the decision as to whether to allow the patient to die peacefully. 

 

[120]      The Grievor gave report to the night nurse who reported for her shift at 1900.  The Grievor reported that the patient had “looked like this the whole day”.  The Grievor did not communicate the patient's physical assessment, focused assessment or the patient’s clinical deterioration within the past few hours.

 

[121]      When the night nurse went in to assess the patient at 1910, the patient had no vital signs.  The night nurse paged the doctor “stat” and the doctor attended to the patient’s room and declared that the patient was deceased. 

 

The Hospital’s Investigation of the December 3, 2013 Incident

 

[122]      Ms. Ennis testified that the night nurse raised a concern with her about the situation.  In light of this concern, Ms. Ennis asked Nurse Educator Jennifer Page to do a chart review.   After reviewing the chart, Ms. Ennis found that there was a lack of physical assessment and corresponding documentation, that the Grievor failed to see and/or to respond appropriately to the patient’s deterioration and that the Grievor failed to provide the expected standard of care. 

 

[123]      Ms. Ennis scheduled a fact-finding meeting with the Grievor on December 5, 2013.  Present at the meeting were Ms. Ennis, Maria Staphopoulis (Human Resources), Jennifer Page (Nurse Educator), the Grievor and Beverley Belfon, ONA representative.

 

[124]      Ms. Ennis discussed her concerns with the Grievor’s care of the December 3 patient.  Ms. Ennis was concerned that the Grievor did not stay at the bedside to check the patient’s sugar after she administered a life saving drug.  Ms. Ennis was also concerned that there was no assessment of this patient between 1300 and 1700.

 

[125]      Ms. Ennis testified that when she raised these concerns with the Grievor, that the Grievor’s explanation was that it had been a busy day.  However, when Ms. Ennis reviewed the Grievor’s other charts for the day she did not find anything out of the ordinary.  Ms. Ennis testified that the Grievor’s patient load was not greater than normal.  Ms. Ennis also checked to see if another patient was more critical than this patient but this was not the case.  Ms. Ennis was further concerned that the Grievor did not have any insight into how her care did not meet the standards, that the Grievor was defensive and blamed other staff for the situation. 

 

[126]      In light of the Grievor’s failure to meet the standards and failure to acknowledge any responsibility, Ms. Ennis felt that discipline was appropriate.  Ms. Ennis testified that she was “distraught” with the situation, especially since she had previously given the Grievor a three day suspension and Ms. Ennis was now seeing a pattern with the Grievor.  Ms. Ennis testified that she was concerned that patients were at risk because she had reviewed the Grievor’s other charts and that the Grievor had provided good care in many cases.  Ms. Ennis was concerned that the Grievor could not provide a reason as to why the events of October 28 and December 3 had happened.  In light of this, Ms. Ennis could not prevent similar situations from happening in the future.  Ms. Ennis decided to impose a five day suspension and to implement a performance improvement plan for the Grievor.  Ms. Ennis met with the Grievor on January 16, 2014 to issue the discipline letter. 

 

[127]      In the discipline letter dated January 16, 2014, Ms. Ennis expressed the December 3 situation in the following way:

 

"At 1305 you document that the patient’s blood sugar is 2.8.  There is no documentation of the patient’s presentation or physical assessment at this point.  You notify the physician and received orders for administration of D50W.  After administering this critical medication you then decided to go on break.  There is no documentation of the patient’s condition improving.  There is no documented blood sugar being checked. In the meeting when asked why you did not check the blood sugar prior to going on break you stated I told my partner to do this.  You were not able to explain why you did not stay at the bedside of a patient who had a critical change in their condition.  In fact, there is no documentation or checked blood sugar until 1 hr and 52 minutes later. 

 

At 1645 you document that the patient’s blood pressure is 76/33.  However, there is no physical assessment or focused assessment to accompany the patient’s vitals. 

….

There was no request for [the doctor] to come and assess the patient; there was no communication of the patient’s clinical presentation. 

 

At 1740 you document “pt’s condition is getting worse BP is 63/33 with no urine output”.  Again there is no clinical documentation of the patient’s physical assessment or focused assessment.  At change of shift report you indicated to the night nurse that the “patient looked like this the whole day”.  There was no communication of the patient’s physical assessment, focused assessment or the patient’s clinical deterioration within the past few hours.  Upon the night nurses assessment at 1910 the patient was found to be without vital signs and was subsequently pronounced dead.”

 

[128]      Both Ms. Ennis and the Grievor testified about the events of December 3, 2013. 

 

[129]      Ms. Ennis testified that the patient’s low blood sugar at 1305 was a critical change in the patient’s condition, and that the drug that was administered to the patient was a life saving drug.  In light of the critical change in the patient’s condition, necessitating a life saving drug, Ms. Ennis testified that the Grievor should not have gone on break but that her priority should have been to stay at the bedside to check the sugar.   Ms. Ennis testified that it is very important to check the sugar after the drug is given so that the doctor knows if the drug had the desired effect of bringing the sugar back up.  Ms. Ennis was very concerned that the Grievor did not check the patient’s sugar until almost two hours later.

 

[130]      From the Grievor’s perspective, she testified that her partners were urging her to go on break, and that she had to trust them to check the sugar at the required time.

 

[131]      Ms. Ennis testified that the Grievor did not do any assessment of the patient between 1300 and 1700.  Ms. Ennis testified that the Grievor did not chart the patient’s physical presentation or physical assessment in response to the low blood sugar.  Ms. Ennis testified that it matters how a patient looks.  The Grievor agreed in cross examination that when she checked the patient’s blood sugar at 1445 or 1453, the patient was looking sick.  However, the Grievor did not chart the patient’s physical presentation or physical assessment. 

 

[132]      In response to Ms. Ennis' concerns about the lack of assessment, the Grievor testified that she did a “quick” assessment to chart the patient’s pulse, respiratory condition, and that the patient was responsive to voice.  The Grievor testified that she did  only “quick charting” because she did not see anything new.

 

[133]      Ms. Ennis testified that the Grievor’s "quick" charting was not appropriate.  Ms. Ennis testified that “charting by exception” is not used in Emergency because this method of charting requires that the normal baseline of the patient is known.  This type of charting is done on the patient floors where it makes more sense, as patients usually have a diagnosis. 

 

[134]      Ms. Ennis testified that the expectation in the Emergency Department is that a patient is assessed at a minimum once every four hours.  In this case, Ms. Ennis expected that the patient would be assessed every two to three hours.  Ms. Ennis testified that this patient had laboured breathing and crackles, so she would have expected to see a breathing assessment every four hours, minimum.  However, there was no breathing assessment in the Grievor’s charting. 

 

[135]      Ms. Ennis testified that the Grievor should have done a physical assessment and a focused assessment to accompany the patient’s vitals, especially in regard to the blood pressure.  Ms. Ennis testified that she has “no idea” from the Grievor’s charting whether the change in the patient’s blood pressure was symptomatic, and that this is important, because the treatment would be different. 

 

[136]      Ms. Ennis was also concerned that the Grievor did not request the doctor to assess the patient, when the patient had had a number of critical changes in her condition, including the low blood sugar at 1305 and the dropping blood pressure at 1645 and 1731.  Ms. Ennis was also concerned that the Grievor did not communicate the patient's clinical presentation to the doctor, and did not report to the doctor that there was a family dispute about the patient's DNR order, especially in light of the patient's continuing decline throughout the day.

 

[137]      Ms. Ennis was concerned that the Grievor had failed to see the deteriorating status of the patient.  Ms. Ennis testified that another indication of the patient’s declining status was the patient's Glasgow Coma Scale (GCS) score.  The Grievor charted the patient’s Glasgow Coma Scale scores at 1445 and 1641.   At 1445, the patient’s score fell from 13 to 12.  At 1641 the patient’s score fell to 10.  The Grievor agreed that this falling Glasgow Coma Scale score showed that the patient was getting worse throughout this timeframe. 

 

[138]      Ms. Ennis testified that anytime the GCS score changes by more than 1 that the patient needs to be seen by a physician.  However, the Grievor did not ask the physician to see the patient at 1445 when the patient’s GCS fell from 13 to 12.  Nor did the Grievor ask the physician to see the patient at 1641 when the patient’s GCS fell to 10. 

 

[139]      In response to Ms. Ennis' concerns that the Grievor did not ask the doctor to assess the patient, the Grievor testified that she tried to speak to the doctor three times but the doctor did not have time for her. 

 

[140]      The Grievor testified that she tried to speak to the doctor about the order that the doctor gave at 1645.  The Grievor testified that she tried to speak to the doctor about the family dispute that arose over the patient's DNR order, however, the doctor did not have time to speak to the Grievor. 

 

[141]      The Grievor testified that she went to see the doctor for a third time at 1845, close to the end of her shift.  The Grievor testified that the doctor was on the phone and did not pay any attention to the Grievor.  In light of this, the Grievor did not get a chance to tell the doctor that there was a family dispute about the patient’s DNR order.  However, the charge nurse knew about the DNR dispute, and the social worker came to the Emergency Department to deal with it. 

 

[142]      The Grievor agreed in cross examination that the process to summon a doctor to a patient immediately is to page the doctor “stat”.  However, the Grievor testified that “stat” is used only when a patient’s condition has dramatically changed from better to worse.  In contrast, the Grievor testified, the situation with this patient was “slow” and “had been going on all day”.

 

[143]      In contrast to the Grievor’s testimony that there was no basis for a stat call, Ms. Ennis testified that there were a number of factors that made a stat call appropriate.  These factors were the patient’s declining status, including no urine output, and fluid leaking out of this patient, as well as the family dispute over the DNR order and the patient's falling GCS score.  Ms. Ennis testified that there were indications that this patient did not have a lot of time, and that there should have been a physician at the bedside to make the decision as to whether they would allow the patient to die peacefully.  Ms. Ennis noted that the patient’s family was not present when the patient died. 

 

[144]      In response to the Grievor’s testimony about the difficulties that she had in relation to getting the attention of the doctor, Ms. Ennis testified that the Grievor had three options available to address her concerns.  The Grievor could have sought the assistance of the charge nurse, she could have called for the doctor “stat” and she could have sought out the Emergency Room physician who is always present. 

 

[145]      Ms. Ennis was concerned about the Grievor’s report to the night nurse because the Grievor did not report the significant deterioration in the patient’s condition over the last few hours of the Grievor’s shift.  In light of the significant deterioration, Ms. Ennis testified that the Grievor’s report to the night nurse that the patient “looked like this the whole day” was not an accurate report.  Based on the Grievor's report to the night nurse, the night nurse did not expect the patient to die.  It was understandably alarming for the night nurse to find the patient without vital signs when she went in to assess the patient at 1910.

 

Accommodation Grievance

 

[146]      As indicated earlier in this Award, the Grievor had worked in the Emergency Department as an Agency Nurse before she was hired in May 2012.  During the time that she worked as an Agency Nurse, the Grievor self-accommodated her need to pray by working out break times with her coworkers. 

 

[147]      In approximately August or September 2013, the Grievor realized that this approach was not working well for her anymore.  The Grievor learned from a charge nurse that some of her nursing partners had complained that the Grievor was always taking the "late break".  The Grievor testified that the charge nurse asked her to work with her nursing partners to resolve this issue.   The Grievor testified that as a result of learning that her nursing partners were upset, that she “became alert and cautious” because she did not want to have a problem and she did not want to compromise patient care.

 

[148]      The Grievor testified that she sought advice from the Union president about what to do, and that the Union president told her that there was no provision for religious accommodation in the collective agreement and that she should deal with her nursing partners to resolve the issue.  There was no other evidence about this conversation between the Grievor and the Union president, however, Ms. Ennis testified that there is a provision in the collective agreement, and that the parties have a process to deal with requests for accommodation. 

 

[149]      Article 3.03 is the provision that deals with accommodation:  

 

It is agreed that there will be no discrimination by either party or by any of the nurses covered by this Agreement on the basis of race, creed, colour, national origin, sex, sexual orientation, marital status, family status, age, disability, religious affiliation or any other factor which is not pertinent to the employment relationship.  ref:  Ontario Human Rights Code

[150]      Because the Grievor had the impression that she needed to work out her need for accommodation directly with her nursing partners, the Grievor decided on September 21, 2013, to send the following email to the Emergency Department distribution list:

 

"Subject:  Huge Favour

 

Dear Colleagues/friends,

 

I would like to ask you all a huge favour about break time, as most of you know I always ask for the last break because I practice praying 5 times a day since I was seven years old and it is very essential to me and to all people who practice, the time of praying changes according to the day light saving time.  I know it is personal matters but it is very important to me to let my colleagues know and have support and feed back.  I appreciate from the bottom of my heart for those who have been supporting me  all this time and make the time possible for me to continue my practice.

 

I don’t think it is necessary to take this matter to our manager Andrea Ennis and ask for extra 5-10 minutes to pray, but it is extremely important to me to discuss with you and have your continuous support during our break time.

 

Thank you and may God bless you

Nuria"

 

[151]      Up until this point, Ms. Ennis was not aware that the Grievor required any accommodation to fulfil her religious obligation to pray.  Ms. Ennis became aware of the Grievor's need for accommodation when she received the email as part of the Emergency department distribution list. 

 

[152]      When Ms. Ennis  became aware of the Grievor's email, she could see that the Grievor was requesting accommodation for religious reasons.  However, Ms. Ennis was concerned about the Grievor's approach for two reasons.  The first reason was that the Grievor had never brought her accommodation request to Ms. Ennis, but was seeking accommodation directly with the other nurses.  This is not the appropriate process for requesting accommodation.   The second concern was that Ms. Ennis believed that the Grievor did not realize Ms. Ennis was on the distribution list.  Ms. Ennis interpreted the Grievor’s email as a threat that the Grievor would go to management if the other nurses did not comply with the Grievor's request for a late break time.  Ms. Ennis was also concerned that the staff who received the Grievor's email would interpret it as a threat. 

 

[153]      Ms. Ennis  responded as soon as she became aware of the Grievor’s email, with the following email:

 

"Subject:  Requests to schedule or assignment

 

Hi All, I thought I would mention to everyone that any specific requests for considerations to schedule or breaks or assignments regardless of religious or personal reasons must follow the process outlined by the collective agreement set out by the hospital and ONA.  If people would like more information about this they should come and speak with me.  Take care, Andrea”

 

[154]      Ms. Ennis testified that when she arrived at work on Monday morning, a number of staff approached her to let her know that they were upset about the Grievor’s email and that they told her that they felt that they had no option except to agree since the Grievor was discussing a religious matter, and they were worried about what would happen if they said no.

 

[155]      Ms. Ennis sent the Grievor an email asking to discuss the matter, and the Grievor came to Ms. Ennis' office.  Ms. Ennis explained to the Grievor that it was not appropriate for her to have sent the email to all of the staff, because Management needs to be involved in any request for accommodation.  Ms. Ennis asked the Grievor to provide some documentation to support her request, and told the Grievor that she would arrange a meeting with the Union and with Human Resources to discuss the issue. 

 

[156]      The Grievor testified that Ms. Ennis spoke to her in a very loud tone, giving her the impression that Ms. Ennis was upset. The Grievor felt that Ms. Ennis was treating her like a child. 

 

[157]      In cross examination, Ms. Ennis testified that she was not upset with the Grievor, although she was worried that other staff might approach the Grievor about her email.   Ms. Ennis testified that there is a process for dealing with accommodation issues, and it is an easy process to go through, and therefore there was no reason for her to be upset.

 

First Accommodation Meeting on October 7, 2013

 

[158]      The parties scheduled a meeting October 7, 2013 to discuss the Grievor’s request for accommodation.  Present at the meeting were:  Maria Stathopoulos, Human Resources Management Partner; Ms. Ennis; the Grievor; and Wendy Martyn, ONA representative.

 

[159]      The parties discussed a number of issues.  One of the issues was Ms. Ennis’ concerns about the email that the Grievor sent to the staff, and the perception of some staff that the email was a threat.  The Grievor reassured Ms. Ennis that she did not intend the email as a threat, but rather she intended to thank the staff for their previous support.  Ms. Ennis was also concerned that the Grievor had not followed the correct process for requesting accommodation.  The Grievor apologized for not coming directly to Ms. Ennis with her request for accommodation.  

 

[160]      Another issue that was discussed was Ms. Ennis’ concern that the Grievor was regularly taking her break after 1800 hours.   As a general rule, nurses are not permitted to take a break after 1800 hours because it is the last hour of the work day, it tends to be busier in the department and the transfer of care to an oncoming nurse happens between 1845 and 1900.  In light of this, Ms. Ennis felt it was unfair to coworkers for the Grievor to take a break between 1800 and 1900.   There are no “set” break times in the Emergency Department, rather, the nurses take their breaks when it is suitable and appropriate for patient care.  

 

[161]      Ms. Stathopoulos asked the Grievor for the exact times of the Grievor’s prayer obligations.  The Grievor explained that the times change according to the sun, and that the specific times that the Grievor needed to pray fell generally between 1330 to 1340, 1700 to 1710, and 1830 to 1840. Ms. Stathopoulos asked if the Grievor had any flexibility around the times, and the Grievor responded that they were “fixed times” and that she could not pray at another time. 

 

[162]      The parties discussed how the Grievor could be accommodated in a manner that did not compromise patient care and ensured that the Grievor’s workload was completed.  The Grievor was taken aback by the manner in which Ms. Ennis communicated her concerns about not compromising patient care and ensuring that the Grievor completed her workload.  Ms. Ennis said to the Grievor that she needed to “put the patients first”, and she expressed the concern that the Grievor's decisions were “based on faith – not patient based”.   Ms. Ennis stressed to the Grievor that she needed to take her breaks when things were settled. 

 

[163]      The Grievor told Ms. Ennis that she had been self-accommodating, by taking her breaks around her prayer times, and had not had any problems doing this until recently.  The Grievor also said that she never left any work behind for her coworkers.  Ms. Ennis told the Grievor that her coworkers did not agree with that, and that coworkers had raised clinical concerns about the Grievor’s nursing care.  Ms. Ennis told the Grievor that the night staff had concerns that the Grievor was leaving “a lot of things” for them to do, and that patients had been left incomplete.  Ms. Ennis also told the Grievor that the charge nurses had raised the concern that the Grievor was argumentative when asked to go on break and that the Grievor wanted to go on break at 1830, which was the busiest time.

 

[164]      Ms. Stathopoulos asked the Grievor to provide documentation that indicated the prayer times that the Grievor needed accommodation for.  The Grievor agreed to provide the documentation. 

 

[165]      On November 4, 2013, the Grievor provided a letter dated November 1, 2013 from the Abu Huraira Centre.  This letter said that the Grievor "must perform five daily obligatory prayers at certain timings as mentioned below."  The timings that were set out in the letter were windows of approximately one and a half to two hours for each of the prayers.  The times were set out in two columns, one for April to November, and the other for December to March. 

 

Second Accommodation Meeting on November 26, 2013

 

[166]      The parties met for a second meeting on November 26, 2013. Present at the meeting were:  Maria Stathopoulos, Andrea Ennis,  Helen Kelly, Nurse Educator; the Grievor;  and Beverley Belfon, ONA representative.

 

[167]      The parties discussed the November 1 letter from the Abu Huraira Centre.  It appeared from the letter that the prayers could occur anytime within the two hour window.  However, the Grievor explained that the window of times in the letter were the times for people to attend the mosque to pray, and were not the specific times that the Grievor needed to pray.   The Grievor did not attend at a mosque to do her daily prayers; rather, she did her prayers during her normal work day.  Ms. Ennis asked the Grievor to provide documentation with the correct prayer times so that the Hospital could see how to accommodate the Grievor’s prayer times.  The Grievor agreed to provide more specific documentation.  

 

[168]      Shortly after the November 26, 2013 meeting, the Grievor provided another letter from the Abu Haraira Centre with a prayer schedule for the specific times for each prayer for the entire year attached.

 

Third Accommodation Meeting on January 16, 2014

 

[169]      The parties met for a third meeting on January 16, 2014.  Present at the meeting were:  Maria Stathopoulos, Andrea Ennis,  the Grievor and Wendy Martyn.  

 

[170]      The parties discussed the November 26, 2013 letter from the Abu Huraira Centre.  Ms. Ennis told the Grievor that she could not accommodate exact times in the Emergency Department, however, she could accommodate within a range of times,  except for the last prayer at 1830, which the Hospital could not accommodate  because of the number of things that occur in the last hour of the day shift, including the transfer of patients from the outgoing nurse to the incoming nurse

 

[171]      In this regard, Ms. Ennis testified that it is known that more errors occur during the transfer of care than at other times. In addition, Ms. Ennis testified that the highest volume and acuity occurs between 1800 and 1900 because people are just arriving home from work and school and dealing with children and elderly parents. 

 

[172]      The Grievor said that she could skip the last prayer and do it at home, but that the other prayers were required at a specific time, not within a range.  The Grievor said that she could not make up her prayers if they were missed.

 

[173]      Ms. Ennis also offered to put the Grievor on the “Accommodation List”  for another unit where it might be easier to accommodate the Grievor on a minute to minute basis.   The Grievor said that she had always been an Emergency Nurse, and did not want to go to another unit.

 

[174]      A third option was raised by the ONA representative, who asked if night shift would work, however, the Grievor said that she did not want to work the night shift.

 

[175]      The Grievor said that she had always been able to able to accommodate her prayer times on her own before and wondered why she could not continue to do so.  

 

[176]      In summary, at the January 16, 2014 meeting, the parties discussed three different possible ways of accommodating the Grievor’s prayer time:  accommodating within a range of times, looking for another department, or working the night shift.  However, no agreement was reached about how to accommodate the Grievor’s prayer times. 

 

 

The Period from January 16, 2014 to December 10, 2014

 

[177]      Immediately after the January 16, 2014 meeting to discuss the Grievor’s accommodation request, the Hospital held another meeting with the Grievor in relation to the patient care incidents that occurred on October 28 and December 3, 2013.  These patient care incidents had previously been discussed with the Grievor on December 5, 2013 in a fact-finding meeting. 

 

[178]      Ms. Ennis told the Grievor that she was issuing a five day suspension for the patient care incidents on October 28 and December 3, 2013.

 

[179]      The Grievor testified that she was very shocked to get this discipline and that she left the workplace broken-hearted.  The Grievor testified that she went to her doctor who put her off work.  The Grievor testified that she could not sleep, and the doctor prescribed medication for her, because the Grievor said, she “could not take it, she could not cope with it and it was too much for her.”

 

[180]      The Grievor testified that she was cleared to return to work by her doctor on October 30, 2014, but that he told her to return to work that was not stressful so she started back with a nursing agency before returning to the Hospital.

 

Return to Work Meeting on December 10, 2014

 

[181]      A return to work meeting was held on December 10, 2014.  The meeting was attended by the Grievor, Ms. Ennis, Maria Stathopoulos, Helen Kelly, Beverley Belfon, and Ronen Lewkowicz (Occupational Health and Safety Representative).  

 

[182]      As is the normal practice when a nurse is returning to work after a long absence, Mr. Lewkowicz  drew up a transitional work program where the Grievor would work with a buddy, for the first week for 4 hours and the second week 8 hours, with a return to full duties by the third week.

 

[183]      The Hospital proposed two options to address the Grievor’s need for accommodation.  The first option was to accommodate the Grievor in the Emergency Department within a window of thirty minutes before the specified prayer time and thirty minutes after.  Ms. Ennis testified that by proposing a window both before and after the specified times, that it would be possible to get closer to the exact prayer time.

 

[184]      The second option was to place the Grievor on the accommodation list and wait for a suitable unit that could accommodate the Grievor’s need to pray at exact times.

 

[185]      The Grievor said that she would return to work in the Emergency department, and a start date of December 16, 2014 was set.  The notes of ONA representative Beverley Belfon confirm that an agreement was made on December 10, 2014 that the Grievor would be accommodated for prayer times within a window of thirty minutes before and thirty minutes after the specified time.

 

[186]      The Grievor completed the transitional return to work program as described above, and it was completed by December 31, 2014.  During the time that the Grievor was on the transitional return to work program, she was able to pray at exact times because she was extra on the unit.

 

[187]      A letter of understanding was exchanged between the parties,  that stated that the Grievor would be accommodated to allow religious observances for prayer time within a time frame of thirty minutes before and thirty minutes after the established prayer times.

 

The December 31, 2014 meeting

 

[188]      At the December 31, 2014 meeting the parties began the meeting by discussing whether the Grievor had any concerns about her return to work.  Ms. Ennis and Ms. Stathopoulos encouraged the Grievor to come forward and request any assistance that she needed in returning to her full duties. 

 

[189]      The parties also discussed the Grievor’s schedule, and the outstanding five day suspension that had not been served because the Grievor went on sick leave directly after receiving the discipline on January 16, 2014. Ms. Ennis told the Grievor that she would serve the suspension on  January 1, 2, 4, 12, and 13, 2015.  The Grievor’s next scheduled shift after the suspension was to be January 20, 2015.

 

[190]      The parties next discussed signing the letter of understanding about accommodating the Grievor thirty minutes before and thirty minutes after her specified prayer times.  The Grievor provided the updated prayer times from her religious leader.

 

[191]      However, the Grievor said that she could not agree to thirty minutes before because the prayers cannot be done before the specified time.  Everyone at the meeting was surprised, because the Grievor had indicated at the December 10, 2014 meeting that she agreed with the thirty minutes before and after accommodation.  The ONA representative Carolyn Edgar said that the agreement had been agreed with the ONA litigator as well, and added “it’s a hospital, and there needs to be some flexibility”.

 

[192]      Ms. Ennis and Ms. Stathopoulos were concerned because they had understood that the Grievor had agreed to the Hospital’s proposal on December 10.  The Grievor clarified that she could pray thirty minutes after the specified prayer time, but not before, and further clarified that the prayer at sunset had to be right at the minute. 

 

[193]      In light of this new information from the Grievor, the letter of understanding was not signed, and the parties had no agreement about how to accommodate the Grievor’s prayer times.   Ms. Ennis was very concerned because the Hospital was learning for the first time that the Grievor could not pray before the specified time.  Ms. Ennis asked the Grievor to bring detailed documentation outlining the new requirement, by January 10, 2015.  The Grievor provided a letter dated January 2, 2015 that confirmed that the Grievor could pray half an hour later than the specified time for all prayers except for the Maghreb prayer that occurs at sunset.  The letter confirmed that the Maghreb prayer must be "on time".

 

Events between  December 31, 2014 and the Grievor’s return to work on February 20, 2015

 

[194]      Brandon Walker has been the Labour Relations Officer (LRO) for this bargaining unit since July 2014.  Accordingly, he was not involved in any of the accommodation meetings held between October 2013 and January 2014.  Mr. Walker was also not present at the December 10, 2014 or December 31, 2014 return to work meetings because he was away on vacation.  When Mr. Walker returned from vacation in early January 2015, he followed up on the Grievor’s situation and learned from his replacement that a Letter of Understanding had been prepared for signing on December 31, 2014 but that the Grievor would not sign the letter. 

 

January 20, 2015 meeting

 

[195]      On January 14, Mr. Walker contacted Michael Ward to set up a meeting before the Grievor’s next scheduled shift of January 20, 2015 so that the Grievor could return to work.  The parties arranged to meet at 2 pm.

 

[196]      Prior to the scheduled meeting with the Hospital at 2 pm, Mr. Walker and Ms. Martyn met with the Grievor and discussed the letter from the Salaheddin Islamic Centre.  Mr. Walker testified that he told the Grievor that she would have to be flexible about the sunset prayer being taken "on-the-minute".  Mr. Walker testified that the Grievor was very flexible about this and that the Grievor told him that if she had a patient or if the Unit was busy, that she would not leave to pray.  Mr. Walker testified that he asked the Grievor what would happen if she did not get to pray within thirty minutes after the prayer time, and that the Grievor told him that she could pray later.  This was the first time that Mr. Walker had understood that the Grievor had this degree of flexibility in her prayer times. 

 

[197]      The Grievor testified that until December 2014, that she had understood that she was required by her faith to pray on time.  However, the Grievor testified that in or around December 2014 or January 2015, that she had a discussion with her religious leader and he explained to her that if she needed to work during her prayer time that "it was okay to stretch".  The Grievor also testified that her religious leader gave an example of when a surgeon is performing surgery, that the surgeon must complete the operation and miss his prayer.

 

[198]      Mr. Walker was pleased to hear this flexibility from the Grievor.  Mr. Walker testified that he did not think that it would be a “huge barrier” to reaching an agreement that the Grievor could not pray before the specific prayer times, but only after.  However, Mr. Walker understood that the need to pray on time for the sunset prayer was problematic. 

 

[199]      After hearing this flexibility from the Grievor, Mr. Walker drafted an accommodation agreement to give to the Hospital at the meeting scheduled for 2 p.m.  When the parties met, Mr. Walker told Mr. Ward and Ms. Ennis that "the Grievor was prepared to compromise on some of the times for prayer."  Mr. Walker did not provide a detailed explanation of the Grievor's flexibility.  Mr. Walker gave Mr. Ward and Ms. Ennis a revised accommodation agreement and asked them to look at it.  His expectation was that that Mr. Ward and Ms. Ennis would read and consider his proposal.

 

[200]      However, Mr. Walker testified that Mr. Ward would not look at the revised accommodation agreement.  Mr. Walker testified that Mr. Ward was very focused on tabling a different proposal; that of permanent nights.  Mr. Walker felt that permanent nights was not an appropriate accommodation.  Mr. Walker was not aware that the Union had suggested back in October 2013 that night shift might be an appropriate accommodation.

 

[201]      The parties discussed the Hospital's offer of a permanent night schedule to accommodate the Grievor's prayer times in the Emergency department.  The Grievor said that she never works nights, and that she has trouble sleeping during the day.  Ms. Ennis reminded the Grievor that she was hired for a day/night schedule.  The Grievor said that she switches her nights for days. 

 

[202]      Mr. Walker was concerned that the Hospital was going to discharge the Grievor if she did not accept the offer of permanent nights.  For this reason, Mr. Walker persuaded the Grievor to accept the Hospital's offer of permanent nights.  However, Mr. Walker also agreed in cross examination that no one at the Hospital ever suggested that the Grievor would be discharged.  Nevertheless, Mr. Walker testified that he was worried that the Hospital might discharge the Grievor.

 

[203]      After being encouraged by Mr. Walker to accept the Hospital's proposal of permanent nights, the Grievor decided, unhappily, to accept the offer of permanent nights.  However, Mr. Walker also told the Hospital that even though the Grievor would accept the offer, that the grievance was not resolved, and the Union would be proceeding to arbitration about the accommodation.  This was unacceptable to the Hospital, who wanted to resolve all of the issues about the accommodation. 

 

[204]      Mr. Walker agreed in cross examination that there was nothing improper about the Hospital wanting the resolve the matter in totality.  Mr. Walker agreed that the Union wanted to resolve the matter as well. 

 

[205]      At the end of the meeting, Mr. Walker left a copy of his draft accommodation agreement with Mr. Ward and asked him to have a look at it. 

 

[206]      Ms.  Ennis testified that the Hospital offered the Grievor a permanent night schedule on January 20, 2015 because it was well within what the Grievor had been hired for and it met all of the Grievor's prayer obligations.   Ms. Ennis was unable to accommodate, in the Emergency Department, the Grievor's need to pray at exact times.  Up until January 20, 2015, Ms. Ennis had understood that the Grievor had to pray the sunset prayer on-the-minute, but this restriction could not be accommodated in the Emergency Department.  

 

[207]      Ms. Ennis wanted the accommodation agreement to be in writing, and signed by all parties before she implemented it.  One reason for this was that there had been a number of changes in what Ms. Ennis had understood from the Grievor about her restrictions and she did not want to roll out the agreement without it being in writing. 

 

[208]      Another reason why Ms. Ennis wanted the accommodation agreement to be in writing and signed, is that Mr. Walker was saying that the Grievor was in favour of working nights, but this was inconsistent with what the Grievor had told Ms. Ennis.  The Grievor had told Ms. Ennis a number of times that she did not want to work nights, and that she switched virtually all of her nights, for days.  Ms. Ennis did not want to implement a permanent night schedule and then have to change it later.  Ms. Ennis testified that she did not schedule the Grievor any night shifts after January 20 because she was waiting for the signed agreement.  Ms. Ennis wanted to ensure that there was no further confusion, and that everyone had the same understanding. 

 

[209]      Sometime after January 20, 2015, Mr. Ward did look at Mr. Walker's draft.  On February 5, 2015, Mr. Ward sent an email to Mr. Walker, to advise that the Hospital could agree to the draft agreement that Mr. Walker had left with him on January 20.  The Hospital offered to have the Grievor return to work on February 9, 2015. 

 

[210]      Mr. Walker responded to Mr. Ward on February 9, 2015.  Mr. Walker sent an electronic copy of the draft agreement that he had provided.  He also said in his email, "I also added a #7 to capture the fact that Nuria should be compensated for all of her missed shifts." 

 

[211]      Mr.  Ward responded immediately that the Hospital did not agree that the Grievor should be compensated for any missed shifts.  Mr. Ward reminded Mr. Walker that the parties had reached an agreement in December, but the Grievor had refused to sign it.  Mr. Ward suggested that the issue of compensation could be dealt with in this arbitration.

 

[212]      Mr. Walker sent a new draft accommodation agreement to the Grievor on February 9, 2015.  The Grievor responded the same day advising Mr. Walker that she agreed with it. 

 

[213]      On February 11, 2015, Ms. Ennis sent Mr. Walker an email asking for clarification about the Union's proposed accommodation agreement. Mr. Walker responded on the same day with the clarification.  

 

[214]      On February 11, 2015, Mr. Walker sent a new draft accommodation agreement to Mr. Ward. 

 

[215]      A meeting was scheduled for February 17, 2015 to sign the accommodation agreement.  However, the meeting was rescheduled to February 19, 2015 due to the illness of Mr. Walker.  On February 19, 2015, the parties signed the Accommodation Agreement, and the Grievor returned to work on February 20, 2015.  The Accommodation Agreement provides that the Grievor will be accommodated to allow religious observances at the established prayer times.  However, if observing established prayer times would compromise patient safety, the Grievor will observe the prayer time at the earliest available time after the established prayer time.  The Employer will make best efforts to ensure that the Grievor can pray within one half hour after the established time. 

 

[216]      The only issue for me to decide is whether the Grievor is entitled to compensation for her missed shifts between January 20, 2015 and February 20, 2015. 

 

Intersection of the Grievor’s accommodation request and the Grievor’s discipline

 

[217]      As stated at the outset of this Award, the Grievor believes that the five day suspension she received for the events of October 28, 2013 and December 3, 2013 are connected to her request for accommodation.  The Grievor made many statements throughout her testimony about this. 

 

[218]      The Grievor testified that “nothing was happening until these accommodation issues came up”, meaning that she was not having any discipline problems until she requested accommodation.

 

[219]      The Grievor testified that after she sent her email to the department on September 13, 2013, that Ms. Ennis asked her to come and see her.  The Grievor went to see her, and according to the Grievor, Ms. Ennis spoke to her in a “very loud tone” and would not let the Grievor explain about why she sent the email to the department.  The Grievor testified that Ms. Ennis told her that she would set up a meeting with Human Resources and the Union to discuss the Grievor’s accommodation request.  The Grievor believed that Ms. Ennis was upset.

 

[220]      The Grievor testified that the documentation that she provided from her mosque “did not satisfy” Ms. Ennis, and that Ms. Ennis “set up her rule half an hour early or half an hour later after prayer time”.

 

[221]      The Grievor stressed that she was not asking for extra break time, but that she needed her break time to correspond to the prayer times so that she could use both the break and the prayer time.  The Grievor testified that she needed “just a little understanding”, so that she could continue to manage her break time in the same manner as she had been doing before.

 

[222]      The Grievor testified that she was shocked to receive the five day suspension on January 16, 2014.  The Grievor testified that she thought that the January 16, 2014 meeting was for the purpose of dealing with her accommodation request, and that the Union had told her that “things would get worked out and things would be smoother."  However, the Grievor testified that things did not get worked out, and instead she received a five day suspension.  The Grievor testified that she left the January 16, 2014 meeting “completely broken-hearted.”  The Grievor believed that there was “no spot left there for [her]” in the Emergency Department, and she felt that she was being pushed out. 

 

[223]      The Grievor testified that she felt that Ms. Ennis was “watching over her” and going into her patient rooms to ask how the Grievor was taking care of the patients.  The Grievor testified that on November 26 or 27, 2013, that Ms. Ennis went into a patient’s room and spoke to the patient.  The Grievor testified that Ms. Ennis told her that she was “checking randomly” and that the patient gave a good report about the Grievor.  The Grievor testified that she asked her coworkers if Ms. Ennis was also checking randomly for them and they said no.  

 

[224]      Ms. Ennis testified that she did not go in to speak to any of the Grievor’s patients.  Ms. Ennis testified that she has a clinical coordinator and a charge nurse to receive feedback about nursing care, and that the only time that she would go into a patient’s room is when the patient has asked to see a manager.  Ms. Ennis testified that in such a case, she would make a notation and keep a file of the documentation.  Ms. Ennis testified that she did not have any documentation about seeing any of the Grievor’s patients. 

 

[225]      Ms. Ennis testified that the February 17, 2013 situation came to her attention from a number of sources, including the night nurse, the resident Dr. Lee, and a copy of the patient’s chart slipped under her door anonymously. 

 

[226]      Ms.  Ennis testified that the October 28, 2013 situation came to her attention when the night nurse raised a concern with her that the Grievor reported that the patient “had a cough and was from a group home”, when the situation was that the patient was seriously ill and met the criteria for a number of medical directives that were not implemented by the Grievor.

 

[227]      Ms. Ennis testified that the December 3, 2013 situation came to her attention when the night nurse raised a concern that the Grievor reported to her that the patient “looked like this the whole day”, when the situation was that the patient had been steadily deteriorating all day and the night nurse found the patient deceased when she went to assess the patient at the start of her night shift. 

 

[228]      In all of these situations, Ms. Ennis followed her standard practice of having an Educator do a chart review to establish whether there were any concerns to be dealt with.  Ms. Ennis also followed her standard practice of conducting a fact finding meeting with the Grievor to understand the Grievor’s perspective of what had happened and provide any explanation that she wished to provide, before considering whether it was appropriate to impose any discipline. 

 

The Submissions of the Parties

 

Submissions on Three Day Suspension

 

[229]      With regard to the 3 day suspension that was imposed on the Grievor in relation to her care of the patient on February 17, 2013, the Hospital submitted that it has established that the Grievor’s actions amount to misconduct that required a disciplinary response. 

 

[230]      The Hospital submitted that it is important to keep in mind a number of factors related to this patient.  First of all, this patient was brought to hospital by police under the Mental Health Act (Form 1) for violent behaviour at the YMCA.  In light of this, the patient was in the hospital against his wishes; he was a very large and muscular man, and several police officers and security officers were required to restrain him. 

 

[231]      The Hospital submitted that the Grievor knew all of these facts, and despite this, the Grievor decided to remove one of the restraints to feed the patient, without conducting a proper assessment.  The Grievor then removed a second restraint two hours later without conducting a proper assessment and without consulting with the physician or the psychiatric team. 

 

[232]      The Hospital submitted that the evidence of Ms. Ennis establishes that an assessment is required before the removal of restraints, and it is clear in this case that the Grievor did not conduct an assessment before removing the restraints.

 

[233]      Furthermore, the Hospital submitted that the Grievor behaved inappropriately when she became aware of the order written at 1640 by Dr. Emelianova, to please not remove restraints without consulting with the psych team.  The Hospital submitted that the Grievor ought to have followed the 1640 order and put the restraints back, but instead the Grievor confronted Dr. Lee to express her disagreement with this order, and that she did so in a rude and intimidating manner.

 

[234]      The Hospital submitted that the Grievor's reflection was a concern and underscored that the Grievor did not recognize that she was overconfident.  The Hospital submitted that the Grievor did not concede any shortcomings in the care provided for this patient.  In light of this, the Hospital submitted that it has a duty to impose discipline so that the Grievor knows what is expected of her. 

 

[235]      In support of its submissions, the Hospital relied on Re Oshawa General Hospital and Ontario Nurses’ Assoc. (1976), 1976 CanLII 2156 (ON LA), 12 L.A.C. (2d) 182 (O’Shea); Re Royal Victoria Hospital and Ontario Nurses’ Association (2011), 211 L.A.C (4th) 363 (Luborsky); and Re Toronto Rehabilitation Institute and Canadian Union of Public Employees, Local 1156 (2010), 193 L.A.C. (4th) 49 (Knopf).

 

[236]      The Union submitted that it is not the case that the Grievor did not assess the patient before removing the restraints.  The Union submitted that the Grievor's assessment of the patient is found in her notations on the Restraint Flow Sheet and in the patient's chart. 

 

[237]      The Union submitted that the Grievor was aware of the patient's consciousness and state of mind when she removed first one, and then the other, restraint.  The Union submitted that the Grievor created a rapport with the patient using her skills. 

 

[238]      The Union submitted that the crisis nurse and the psych team failed to have consultation with the Grievor and noted that the crisis nurse was aware that the Grievor had started the de-restraint process but did not tell the Grievor that the patient was to remain in four point restraints.  Similarly, the Union pointed out that both Dr. Lee and Dr. Emelianova were aware that two restraints were removed, however, they did not consult with the Grievor about the need to put back the two restraints, nor did anyone bring the 1640 order to the Grievor's attention. 

 

[239]      The Union submitted that the Grievor did demonstrate reflection and did take accountability for the care that she provided to the patient.

 

Submissions on the Five Day Suspension

 

[240]      The Hospital submitted that on October 28, 2013, the Grievor provided no care to the patient involved and then reported to the night nurse that the patient had a cough.  The Hospital submitted that the Grievor's failure to do an assessment and provide any care for the patient is a violation of the nursing standards that is deserving of discipline.

 

[241]      The Hospital submitted that in the December 3, 2013 incident, the Grievor failed to meet a number of nursing standards including the standards for documentation, procedures and knowledge. 

 

[242]      Furthermore, the Hospital submitted that the Grievor failed to acknowledge that he care in these two incidents fell below the standard required.  In light of this, and in light of the previous discipline, the principles of progressive discipline required the Hospital to issue a further suspension to ensure that the Grievor understands what is expected of her.

 

[243]      The Union submitted that the Grievor did not fail to meet the standards identified in the discipline letter for the October 28 incident.  The Union submitted that the Grievor's partner was responsible for the initial assessment of the patient and that the Grievor relied upon and trusted her partner's assessment. 

 

[244]      The Union submitted that December 3, 2013 was an exceptionally busy day.  The Union submitted that the Grievor trusted her partner to do the sugar test while she was on her break, and that when she returned from her break, she had to attend to another patient and this is what caused the delay in the patient's sugar being checked. 

 

[245]      The Union submitted that in light of the very busy and stressful day, that the Grievor charted everything that she could for this patient.

 

[246]      The Union submitted that the Hospital could have taken action to assist the Grievor in her performance and made attempts to address the deficiencies in the Grievor's performance rather than relying only on discipline. 

 

[247]      The Union submitted that should I find that any discipline is warranted, that I should substitute a more just and reasonable penalty. 

 

[248]      In support of its submissions, the Union relied on Re Royal Victoria Hospital and Ontario Nurses’ Association (2011), 211 L.A.C (4th) 363 (Luborsky); Re Humber River Regional Hospital and Ontario Nurses' Association, 2012 CanLII 42059 (ON LA) (Stout); Re Ottawa Civic Hospital and Ontario Nurses' Association (1988), unreported decision of Paula Knopf dated August 30, 1988; and Re West Park Hospital and Ontario Nurses' Association (1983), unreported decision of Arbitrator Carter dated January 11, 1983.

Submissions on Accommodation Issue

 

[249]      The Union submitted that the Hospital failed to meet both its procedural and substantive duty to accommodate the Grievor from September 13, 2013 onward, and most specifically when the Hospital removed the Grievor from the workplace in January 2015.

 

[250]      The Union submitted that there are two periods of time at issue.  The first period is from September 2013 until December 2014 when the Grievor returned to work.  The second period is from January 20, 2015 until February 20, 2015. 

 

[251]      The Union submitted that the purpose of the duty to accommodate is to not unfairly exclude people from the workplace.  In light of this, the Union submitted that the parties must incrementally broaden the scope of the search for appropriate work that will fit an employee’s restrictions.  The Union pointed out that the Grievor provided the requested information by January 2, 2015, and that the Hospital had all of the information that it needed to accommodate the Grievor in the Emergency Department by January 20, 2015. 

 

[252]      The Union submitted that the Hospital unilaterally decided not to bring the Grievor back to work on the night shift after the Grievor agreed to accept the Hospital's offer of permanent nights.  Furthermore, the Hospital refused to consider the Union’s proposal on January 20, a proposal that formed the basis of the accommodation agreement that was ultimately signed.  The Union submitted that it is inappropriate for the Hospital to refuse to discuss an accommodation proposal because it is frustrated with an employee, or with the process.  The Union submitted that this failure of the Hospital to consult with the Union and work through the process in a reasonable manner is a breach of the Hospital's duty to accommodate the Grievor.

 

[253]      The Union submitted that there was no reason why the Grievor could not have returned to work on the permanent night shift schedule while a more long term accommodation was being worked out.  The Union submitted that it was not reasonable for the Hospital to offer the accommodation of night shift and then refuse the accommodation when it was accepted by the Grievor. 

 

[254]      In light of this, the Union submitted that the Grievor is entitled to be compensated for the shifts she missed between January 20, 2015 and February 20, 2015 when the Grievor returned to work.

 

[255]      In support of its position, the Union relied on McKee v. Imperial Irrigation Co. [2010] O.H.R.T.D. No. 1595 (Mark Hart); Re United Food and Commercial Workers Union Local 175 (2013), unreported decision of Brian McLean dated January 28, 2013; and United Food and Commercial Workers Union Canada, Locals 175 and 633 and Archer Daniels Midland Company, unreported decision of Mary Ellen Cummings dated April 17, 2013.

 

[256]      The Hospital acknowledged that it has a duty to accommodate the Grievor, but that this duty is subject to the test of undue hardship. 

[257]      The Hospital submitted that any delay in implementing an accommodation agreement and having the Grievor return to work under that agreement was primarily caused by the Grievor’s failure to provide accurate information about what her accommodation needs were and what flexibility she had with respect to the prayer times. 

 

[258]      The Hospital submitted that the information provided by the Grievor was not terribly helpful because the first letter provided described a range of times for prayer.  However, after providing the document, the Grievor then explained that the range of times in the documentation was for praying at the mosque, and were not helpful for accommodating the Grievor’s prayer times during her work day. 

 

[259]      The Hospital submitted that the Grievor then provided a specific timetable for the exact times of her prayers but the barrier continued to be that the Hospital cannot accommodate exact times in the Emergency Department. 

 

[260]      The Hospital submitted that the parties then reached an agreement on December 10, 2014 which provided accommodation 30 minutes before and 30 minutes after the prayer times, and the parties exchanged a draft accommodation agreement.  However, on  December 31, 2014 the Grievor said that she could not agree to the terms of the agreement and that one of the prayers (Maghreb) had to be at the exact time. 

 

[261]      The Hospital submitted that it was not until January 20, 2015 that the Grievor indicated any flexibility with respect to the Maghreb prayer.  In light of this, no accommodation agreement was possible before January 20, 2015.  However, the Hospital did not have a clear understanding of the Grievor's flexibility at that time, and made a proposal of a modified night schedule so that no prayer times were interfered with.

 

[262]        The Hospital submitted that the night schedule was within the hours that the Grievor was hired to work, having been hired and scheduled for a day/night rotation. 

 

[263]      The Hospital submitted that it was reasonable for it to insist that the accommodation agreement for permanent night shift be in writing.  The Hospital was not entirely confident that the Grievor was prepared to work nights.  It must be recalled that the Hospital received inconsistent information from the Grievor and the Union about the Grievor's willingness to work nights.  The Grievor said she did not want to work nights and that Mr. Walker said that the Grievor would work nights.

 

[264]      The Hospital also submitted that it was reasonable to wait for the agreement to be in writing so that the parties could be sure that they had a clear agreement that would be adhered to.  The Hospital submitted that it was reasonable for Ms. Ennis to want to implement an agreement that could be in place for a period of time, rather than implementing one approach and then a new approach.

 

[265]      The Hospital submitted that in addition to working out the accommodation agreement, the parties were also negotiating some related issues such as compensation for the Grievor and disposing of the grievance.  The Hospital submitted that that the delay was in part attributable to this.  However, the Hospital submitted that once it understood the Grievor’s needs and flexibility, that it moved fairly quickly to finalize the arrangement. 

 

[266]      The Hospital submitted that the Grievor also had a duty to cooperate but that the Grievor did not meet this duty.  The Hospital pointed out that the Grievor did not provide any helpful information until January 2015, and more importantly, did not indicate any flexibility on the Maghreb prayer until January 20, 2015.  In light of this, the Hospital submitted that the Grievor herself was the one responsible for the delay in working out the accommodation agreement. 

 

 

Decision

 

Three Day Suspension for February 17, 2013 Incident

 

[267]      The jurisprudence is clear that the tests for discipline are whether an incident occurred that is grounds for discipline and whether the discipline imposed is appropriate in all of the circumstances. 

 

[268]      In this case, the evidence is clear that the Grievor decided to remove two restraints from a violent and unpredictable patient without conducting a psychiatric assessment to support this decision. 

 

[269]      The Grievor relied on the Hospital’s Policy of Least Restraint to support her actions.  The policy supports a philosophy of least restraint/last resort, and states that a patient should be taken out of restraints as soon as possible.   The Policy says that restraint is only used to prevent serious bodily harm by a patient to self or to others, and requires assessment by the Health Care Team and a doctor’s order.  The policy explicitly states that restraining all four limbs simultaneously is an extraordinary measure (emphasis in original) to be used only when all other measures of less restraint have been considered and/or exhausted and deemed to be ineffective.  The Grievor believes that she was reinforcing the Hospital's policy by removing the restraints as soon as possible, and "seeing how the patient managed."

 

[270]      The Policy is also very clear about the level of assessment required for a patient to go into, and come out of restraints.  In this regard, the Emergency Room Doctor on duty completed a comprehensive assessment of the patient and ordered that the patient be restrained in four points.  The doctor’s order was a verbal order, and the Grievor did not see the order.  However, there was no confusion or question on the Grievor’s part as to whether there was a doctor’s order for the original restraint process.  The Grievor understood that there must have been a doctor’s order for restraints in order for the patient to have been placed in restraints at approximately 0815.  The Grievor was also aware that the patient had been given chemical restraint medication by the Charge Nurse at 0815. 

 

[271]      The Policy also outlines the level of monitoring and documentation that is required when a patient is restrained.  There is a requirement to evaluate the need for continued use of restraints at the beginning of every shift and at least every four hours thereafter. 

 

[272]      With regard to the authority of a Registered Nurse to initiate the de-restraint process, the Policy states that:  “Nurses can initiate the de-restraint process by gradually reducing the amount of restraint based on the working team’s plan and the patient’s response.” (my emphasis)

 

[273]      The documentation that is required for the reduction or removal of restraints includes: the date and time the restraint is reduced/removed; the amount of reduction and what restraint remains; description of the patient’s behaviour that supported restraint reduction/removal; patient’s tolerance to the reduction/removal of restraint; and the plan of care developed with the patient during the debrief.  This is the assessment that Ms. Ennis expected from the Grievor.

 

[274]      Of the documentation listed above, a very important element is the description of the patient’s behaviour that supported the restraint reduction.  The Grievor did not document any patient behaviour that would have supported the reduction of the restraints, nor did she provide any verbal explanation to Ms. Ennis during the investigation.

 

[275]      The fact that the patient was drowsy is not sufficient to support the Grievor’s decision to remove the restraints.  I accept Nurse Educator Kelly’s evidence that the time to remove restraints is not when a patient is sedated, but after the medication has worn off and a psychiatric assessment has been completed, so that the patient’s condition is being assessed, rather than the patient's behaviour while being medicated. 

 

[276]      Similarly, the fact that the patient remained cooperative during the Grievor’s shift does not mitigate against the Grievor’s failure to assess the patient and to document the reasons to reduce the restraintsNurse Educator Kelly testified that it was not surprising that the patient remained cooperative while he was being medicated. 

 

[277]      However, I do not find that the Grievor willfully or defiantly refused to consult with the Psychiatric team or that she willfully contravened a doctors order for four point restraintsTo be fair, the Grievor was not aware of the 1640 order that specifically ordered consultation with the Psychiatric team before removing restraints.  The Grievor did not have that section of the patient’s chart, and no one brought the order to her attention. 

 

[278]      Rather than being a defiant or willful act, I find that the Grievor was simply applying what she understood as the Hospital’s Policy of Least Restraint; albeit in a manner that was not consistent with the requirements of that Policy. 

 

[279]      The Grievor testified that she used her discretion to reduce the restraints, and that in her experience, the reduction of restraints is done at a nurse's discretion.  However, the Policy is clear that nurses may initiate the de-restraint process based on the working team’s plan, and with a psychiatric assessment and corresponding documentation.  The exercise of nursing discretion requires the exercise of good judgment.   A nurse cannot exercise her nursing discretion without assessing the situation.

 

[280]      It appears that the Grievor placed a disproportionate amount of weight on an absolute principle of least restraint, rather than assessing whether reduction of restraints was appropriate at that time based on an assessment of the situation and the patient’s condition at that time. I am satisfied from the testimony of Ms. Ennis, Nurse Educator Kelly and Dr. Lee that the situation before the Grievor was one which did not support early removal of restraints but rather supported continued restraint until at least such time as the patient was alert enough to be assessed. 

 

[281]      In contrast to applying an absolute principle of least restraint, the Grievor should have placed more weight on the information in the patient’s chart, which she had from the start of her shift, including that he was brought to hospital by police, in handcuffs, under the Mental Health Act and he was admitted on a Form 1 and required numerous police officers and security officers to restrain him.   The information that the Grievor had access to clearly indicated that the patient was extremely violent and unpredictable, and that that the patient was suffering from mental disorder of a nature or quality that likely would result in serious bodily harm to himself and serious bodily harm to another person.  (from the Form 1)

 

[282]      To be compliant with the Policy of Least Restraint, the Grievor should have done a psychiatric assessment of the patient to inform whether it was appropriate to remove any of the restraints.

 

[283]      Had the Grievor done so, she might have realized that the patient’s cooperative behaviour was more related to being medicated than to his mental state and that the situation did not support the removal of restraints.  Both Ms. Ennis and Nurse Educator Kelly testified that it was necessary to assess the patient after the medication had worn off rather than while he was medicated. 

 

[284]      It is not a mitigating factor that the patient did not go back into four point restraints until several hours later.  Upon finding the patient in only two point restraints, and in light of the order at 1640 that the patient remain in four point restraints, the night nurse correctly consulted with the physician and the psychiatric team, and a team decision was made to leave the patient in two point restraints.  This would also have been an appropriate course of action for the Grievor at 1830, when she realized that there was a 1640 order for four point restraints, and yet the patient had been in two point restraints for several hours.  At that point, it was open to the Grievor to consult with the team by communicating that she was not aware earlier about the requirement to consult, and that a second restraint had been removed, and to take the opportunity to make a team decision about how to proceed at that point. 

 

[285]      However, upon learning of the requirement to consult before removing restraints, the Grievor did not respond by consulting with the psychiatric team.  Instead she responded by challenging Dr. Lee.  Although this interaction did not form part of the basis for disciplining the Grievor, it does shed light on the Grievor’s assessment of the situation.  Although the requirement to consult might have been an unusual one, it is important to note that it was not arbitrary.  It appears to have been necessary, because the Grievor’s removal of the restraints was a surprise to the doctors, and the 1640 order that contained the requirement to consult before removing restraints made it clear that the consultation was required due to significant risk of violence. 

 

[286]      Rather than seeking to understand the need for consultation, the Grievor complained to Dr. Lee that she was being excluded from the circle of care because in her experience the decision to remove restraints was left to nursing discretion.  However, it is apparent that a requirement to consult does not exclude the nurse from the consultation or decision making process.  Rather, it includes the nurse as a member of the team.  It simply never occurred to the Grievor that this was an extraordinary situation where consultation with the team was appropriate.  In contrast to this, Ms. Ennis stated in the discipline letter, that it was “obvious” that the patient posed a significant safety risk to staff, the public and himself.  It is clear from the documentation in this patient's chart that Ms. Ennis' assessment is correct.

 

[287]      In light of the Grievor’s lack of judgment in recognizing the seriousness of this patient’s illness and propensity for violence, for initiating the de-restraint process without the proper and necessary documentation to support it, and the Grievor’s lack of reflection and accountability, I conclude that the Grievor engaged in misconduct that is deserving of discipline.

 

[288]      The Union asks me to find that the quantum of discipline was excessive in this case.  As noted by Arbitrator Stout in Humber River Regional Hospital, the application of progressive discipline is to be "applied in a flexible manner having regard to the nature of the offence, the employee's previous record as well as the aggravating and mitigating circumstances surrounding the incident".  Arbitrator Stout also noted that progressive discipline does not require that discipline always begin with warnings prior to the imposition of suspensions or discharge.

 

[289]      In the Humber River Regional Hospital case, a five day suspension was reduced to a three day suspension where the grievor, a  nurse, recorded in the patient chart his opinion of other health care professionals using language that was "inflammatory, insolent and unprofessional".  This was found to be a violation of the College of Nurses Documentation Practice Standard.

 

[290]      In Ottawa Civic Hospital, a ten day suspension for a labelling error that did not result in any negative patient outcome was reduced to a three day suspension.  The labelling error was found to be a violation of the College of Nurses Documentation standard. 

 

[291]      In this case, for all of the above reasons, I am satisfied that the misconduct was serious enough to warrant a suspension rather than a verbal or written warning and that a three day suspension is within the range of reasonable penalties.

 

[292]      In the result, the three day suspension grievance is dismissed.

 

 

 

 

Five Day Suspension for Incidents on October 28, 2013 and December 3, 2013

 

[293]      With respect to the October 28, 2013 incident, the Grievor relied on the assessment of her nursing partner and did not do an assessment or provide any care to the patient. 

 

[294]      However, the Grievor acknowledged that she had information that the patient had  a number of indicators of concern.

 

[295]      The Grievor is an experienced nurse, who should have been able to recognize that the patient had significantly abnormal vitals and that he met the criteria for a number of different medical directives that should have been considered.

 

[296]      In addition, the Grievor should have notified a physician of the patient's presentation.

 

[297]      The Grievor acknowledged in cross examination that at least a cardiogram should have been done and brought to a doctor's attention.  The Grievor also acknowledged that the patient met the criteria for a number of different medical directives including routine blood work, 12 Lead ECG, Blood Cultures and Serum Lactate.

 

[298]      There is no doubt that the Grievor was the patient's primary nurse.  In light of all of the above, the Grievor did not meet the College of Nurses Standards for documentation, procedures and authority and knowledge. 

 

[299]      With respect to the December 3, 2013 incident, the Grievor testified that it had been a very busy and stressful day. 

 

[300]      However, the evidence is clear that there were a number of shortcomings in the Grievor's care of this patient, including the fact that the Grievor did not stay at the bedside of a patient after administering a life saving drug.

 

[301]      Most importantly, the Grievor did not chart the patient's physical presentation and did not notify a doctor of the patient's continuing decline throughout the day, and in particular, at the points where the patient had a critical change in her condition and in her GCS score. 

 

[302]      This became increasingly important when the family dispute over the DNR order arose.  It was incumbent on the Grievor to ensure that the doctor was aware of this combination of events, ie. the patient's continuing deterioration and the DNR dispute.

 

[303]      I accept Ms. Ennis' testimony about the type of assessment and charting that is expected in the Emergency Department.  The Grievor failed to assess and  respond appropriately to the patient's decline, failed to assess and chart appropriately and failed to advise a doctor about the situation. 

 

[304]      In light of these findings, the principles of progressive discipline dictate a disciplinary response of at least a three day suspension, in light of the Grievor's previous discipline. 

 

[305]      In my view, the Grievor's lack of accountability for her responsibility in both of these situations is an aggravating factor that mitigates against substituting a lesser penalty.  I accept that the Grievor's partner bore some of the responsibility for the October 28 situation but this does not excuse the Grievor's responsibility. 

 

[306]      Similarly, I accept that the Grievor had a very busy day on December 3, but this does not excuse the Grievor's many shortcomings on that day.

 

[307]      In the result, I find that a five day suspension is within the range of reasonable disciplinary responses and the five day suspension grievance is dismissed.

 

Duty to Accommodate

 

 

[308]      Even though there is only one narrow issue for me to decide on the duty to accommodate the Grievor, I have carefully set out all of the facts detailing the parties' discussions about how to accommodate the Grievor's religious obligation to pray.  This is because the history is important and relevant to the question that remains, as to whether the Grievor is entitled to compensation for the delay between January 20, 2015 and February 20, 2015.

 

[309]      The basis for the Union's claim that the Grievor is entitled to compensation is that the Union tabled a proposal on January 20, 2015 that ultimately formed the basis of the final accommodation agreement between the parties, and that the Hospital should have accepted the Union's proposal on that day.  Instead, according to the Union, the Hospital refused to look at the proposal, and instead tabled its own proposal of a permanent night schedule for the Grievor. 

 

[310]      It is important to recall that during the meetings that the parties had in October 2013, November 2013 and January 2014, that the Grievor's position was that she had to pray at exact, on-the-minute times.  The Hospital was very clear from the outset that it could not accommodate on-the-minute prayer times in the Emergency Department.  The Union never disputed that accommodating exact prayer times was not possible in the Emergency Department. 

 

[311]      It is also important to recall that the Hospital sought information from the Grievor, continued to inquire into and clarify the information the Grievor provided, and tabled proposals for how it could accommodate the Grievor in a range of times in the Emergency Department. 

 

[312]      The Hospital also proposed that the Grievor go on the Accommodation list to see if another unit in the Hospital could accommodate the Grievor's need to pray at exact times.  However, the Grievor did not want to go to another unit.

 

[313]        The Union queried in October 2013 whether night shift would meet the Grievor's needs.  However, even though night shift would likely have met the Grievor's need to pray at exact times, the Grievor indicated that she did not want to work the night shift. 

 

[314]      Based on all of the above, it is clear that the Hospital accepted that the Grievor was entitled to accommodation, and that it had a duty to accommodate the Grievor.  It is clear that the Hospital did not in any way resist the Grievor's request for accommodation.

 

[315]      It is appropriate to address at this point, the Grievor's perception that the Hospital did not want to accommodate her.  It is true that Ms. Ennis was alarmed to learn that the Grievor was self-accommodating, and that the Grievor was regularly taking breaks late in the work day, when, generally speaking, breaks were not allowed after 1800.  Ms. Ennis did ask the Grievor questions about how patient care factored into her decision to take her breaks at the times that the Grievor was taking them.  However, I am satisfied that Ms. Ennis' questions were a reflection of the primacy of the patient-care aspects of accommodating the Grievor's need to pray, rather than an indication that the Hospital did not want to accommodate the Grievor. 

 

[316]      I am also satisfied based on the evidence, that the imposition of discipline for the  incidents of October 28 and December 3, 2013 had no relationship to the Grievor's request for accommodation in September 2013.  I am also satisfied that Ms. Ennis did not subject the Grievor to any scrutiny but rather investigated the events of October 28 and December 3, 2013 based on concerns that were brought to her attention, and properly conducted chart reviews to substantiate the concerns. 

 

[317]      When the Grievor returned to work in December 2014, the parties resumed their discussions.  Mr. Walker was not involved in those discussions and did not become involved until January 2015.  The parties thought they had reached an agreement on December 10, 2014, however the Grievor indicated on December 31 when the parties met to sign the agreement, that she could not agree to its terms, because she could not pray before the prayer time, but only after, and because she had to pray the Maghreb prayer exactly on time. 

 

[318]      On January 20, 2015, Mr. Walker met with the Grievor and learned for the first time, that the Grievor did not have to pray the Maghreb prayer on-the-minute.  This was a very significant change in the Grievor's position. 

 

[319]      However, the Hospital did not know at the beginning of the January 20 meeting, that the Grievor now had sufficient flexibility that an accommodation agreement in the Emergency Department would be possible.  When the parties met on January 20, 2015, Mr. Walker told Mr. Ward and Ms. Ennis that the Grievor "was willing to compromise on some of the prayer times" and invited them to read his proposal. 

 

[320]      But the Hospital had formulated its own proposal to accommodate the Grievor, based on what it understood to be the Grievor's position.  By January 2015, the Hospital was left with no other options for accommodating the Grievor in the Emergency Department, except for a night shift schedule.  It is understandable that the Hospital would put forward this option in its meeting with the Union on January 20, 2015. 

 

[321]      Mr. Walker testified that he was frustrated that Mr. Ward would not look at his proposal.  However, in light of what Mr. Ward and Ms. Ennis had understood from every previous meeting with the Grievor, where the Grievor did not have any flexibility on any prayer times (October and November 2013 and January 2014) , and then on the Maghreb prayer time (December 2014), I am reluctant to fault Mr. Ward for not understanding that the Grievor's flexibility had changed by such a significant amount that an accommodation agreement could now be reached. 

 

[322]      It would certainly have been helpful if Mr. Walker had more clearly articulated the extent of the Grievor's change in position.  Had he done so, Mr. Ward might have responded differently.  However, this is not a criticism of Mr. Walker.  Mr. Walker had not been involved in any of the earlier discussions between the parties, so I would not necessarily expect that he would have understood how significant the Grievor's change in position was.  It may have seemed a very straightforward solution to Mr. Walker.

 

[323]      The January 20 meeting ended with the Union and the Grievor agreeing to the Hospital's proposal of a permanent night shift schedule.  However, the Grievor was very unhappy, and testified that she accepted the Hospital's offer only because Mr. Walker was concerned that the Hospital was going to terminate the Grievor. 

 

[324]      Under the circumstances, I do not find it unreasonable that the Hospital wanted the accommodation agreement to be in writing and signed by all the parties including the Grievor, prior to implementing the accommodation agreement.  Ms. Ennis was not at all confident, given the earlier challenges in working out how to accommodate the Grievor, including the Grievor's position that she did not want to work nights, and the confusion about the agreement reached on December 10 that the Grievor was unable to commit to on December 31 when the parties met to sign it.

 

[325]      To his credit, Mr. Ward did look at the proposal that Mr. Walker tabled on January 20.  By February 5, Mr. Ward contacted Mr. Walker to advise that the proposal could form the basis for an accommodation agreement.  However, the parties still had a dispute about whether the Grievor should receive any compensation. 

 

[326]      By February 9, the parties had agreed that I would decide the compensation issue in the context of the ongoing arbitration.  As late as February 11, Ms. Ennis asked Mr. Walker for a clarification about the meaning of "best efforts" in the agreement.  A meeting to sign the agreement on February 17 was cancelled due to Mr. Walker's illness.  The parties signed the agreement on February 19 and the Grievor returned to work on February 20, 2015. 

 

 

[327]      In light of all of the above, I do not find that the delay between January 20 and February 20 was an unreasonable delay.  But more importantly, there is simply no getting around the fact that the barrier to the parties reaching an accommodation agreement earlier was the Grievor's position that she had to pray at a specific on-the-minute time for at least one of the prayers when that restriction could not be accommodated in the Emergency Department. 

 

[328]      Accordingly, in light of all of the above, this is  not a case where it would be appropriate to compensate the Grievor for shifts missed as a result of the delay between January 20, 2015 and February 20, 2015. 

 

[329]      In the result, the Accommodation grievance is dismissed.

 

 

 

Dated this 11th day of January, 2016

 


                                                                       

 

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                                                                        Diane Brownlee, Sole Arbitrator