[author: Adrian Miedema]
A labour arbitrator has refused to reinstate a discharged Registered Nurse because of her “subtle” and “insidious” bullying and harassment of Registered Practical Nurses.
In 2010, the Peterborough Regional Health Centre decided to reduce costs by replacing 20% of RNs on the dialysis unit with RPNs who have a narrower scope of practice and earn less money.
The grievor, an RN, then engaged in intimidation and bullying of RPNs in the dialysis unit over a six-week period. Witnesses testified, for instance, that the grievor would walk by RPNs making shoulder contact with them and say “excuse me”. She would roll her eyes at RPNs, and stare and flap her hands as RPNs passed her work area. She would avoid eye contact with RPNs. The employer terminated her employment. The union grieved the termination.
The arbitrator stated that:
“The grievor engaged in intimidating and bullying conduct in the workplace during the period September to November, 2010. This conduct consisted of an attitude conveyed to the RPNs that they were not wanted in the Dialysis Unit and could not expect support from the RNs and was conveyed to the RPNs through the grievor’s uncommunicativeness, the rolling of her eyes, and staring . . .
“In this matter the grievor’s actions were extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour. Single discreet incidents however are more easily dealt with in the arbitral context than allegations of subtle behaviours over a period of time because the former gives an arbitrator the ability to evaluate each incident, and to apply the principle of progressive discipline in determining the appropriate penalty, whereas a series of subtle behaviours does not afford the same opportunity.”
Although the arbitrator held that the employer did not have just cause to discharge the grievor, the arbitrator decided not to order that the grievor be reinstated. Instead, he directed the hospital and union to work out an agreement regarding the grievor’s damages for losing her job. The primary reason for not reinstating the grievor was that her actions were persistent over a period of time and that she did not accept any responsibility for her actions. Her actions had at least contributed to the destabilization of an entire department and contributed to the resignation of at least two RPNs. The arbitrator had no confidence that she would not continue her bullying and harassment if reinstated.
This decision is some comfort to employers who are frustrated by the inability to “prove” bullying and harassment that is done subtly and insidiously. Where the evidence shows a number of single incidents which, on their own, seem mild, but together add up to an insidious pattern, discharge may be justified.
Peterborough Regional Health Centre v. O.N.A., 2012 CarswellOnt 6388