3 ‘statements’ not suitable grounds for dismissal: Arbitrator
After a patient was restrained at a Dartmouth, N.S., hospital, leading to a defamation suit, a registered nurse volunteered information to three different people, which caused the employer to fire her for violating patient confidentiality.
The nurse, identified as “DH,” had worked at the Nova Scotia Hospital for more than 20 years and was most recently employed for four years at Emerald Hall, a facility that treated patients with intellectual disabilities combined with a mental illness.
On Sept. 4, 2016, a patient, identified as “MM” was placed in protective restraint by a nurse, identified as “KT.” MM’s mother complained about his treatment and Lee Mailman, unit manager, filed a complaint with the College of Registered Nurses of Nova Scotia about KT’s actions that day.
Later that year in October and November, MM’s mother, identified as “TM,” made public accusations against KT who filed a lawsuit against MM for defamation.
Investigator Darlene Mott launched a probe into the complaints about KT. On April 15, 2017, DH emailed Mott.
“I had expected to be interviewed by now as I was directly involved in the situation but perhaps you are not aware of the background issues surrounding Mailman’s claims. I have just received a cancer diagnosis and my surgery and treatment will begin shortly. I want to ensure you have my testimony and I would like to provide this information as soon as possible before I begin my cancer treatments. (KT’s) legal representative has informed me that I need to notify you directly with this request,” said DH.
Repeated attempts to meet with Mott were unsuccessful and DH wrote a letter that detailed the information. DH wanted it on the record before she went into surgery and she emailed it to Mott on April 21.
After KT and TM’s lawyers prepared the defamation cases, TM called Mailman on April 5, 2018, and said she believed that DH had revealed private information about her son, MM, that breached his confidentiality.
A privacy officer for the hospital advised TM on May 29 that an investigation found that DH did violate MM’s privacy. The hospital promised to investigate and on June 20, DH was suspended.
DH was terminated on Oct. 16 for three separate breaches of confidentiality. “There is evidence to support that you shared similar information with another third-party legal counsel where there was a sworn affidavit,” said the letter about the information shared with KT’s lawyer.
The Nova Scotia Government and General Employees Union (NSGEU) immediately grieved the decision. It argued that DH was well within her rights to disclose the information about MM because it was in a “protected occasion.” DH was providing information that would form a judicial proceeding and this provided her with immunity, said the NSGEU.
The employer said that because the statements didn’t end up in court and the fact that DH reached out to Mott first meant she “insinuated” herself into the process and, therefore, didn’t deserve immunity.
Arbitrator Augustus Richardson disagreed. “I am satisfied and so rule and direct that the employer was not and is not entitled to use or rely upon the three ‘statements’ listed in its termination letter as grounds justifying any kind of discipline. The statements were made and given in a context that created for DH an absolute immunity, notwithstanding that they might have breached patient confidentiality — and notwithstanding that had the disclosure been made under different circumstances, unconnected with any judicial or quasi-judicial proceedings, it might well have been subject to discipline.”
However, the grievance was not dismissed, said Richardson, and it’s up to the employer to decide on whether to continue with termination. “The employer may have had other grounds for discipline (disclosed or not in the termination letter). But it does mean that in seeking to meet the onus on it of establishing just cause for discipline, up to and including termination, the employer cannot rely upon the three statements, their contents or the fact that they were made, even if their contents breached patient confidentiality. Other grounds must be provided and relied upon.”
Reference: Nova Scotia Health Authority and Nova Scotia Government and General Employees Union. Augustus Richardson — arbitrator. Gary Rankin for the employer. David Wallbridge, George Franklin for the employee. April 15, 2019.
The nurse, identified as “DH,” had worked at the Nova Scotia Hospital for more than 20 years and was most recently employed for four years at Emerald Hall, a facility that treated patients with intellectual disabilities combined with a mental illness.
On Sept. 4, 2016, a patient, identified as “MM” was placed in protective restraint by a nurse, identified as “KT.” MM’s mother complained about his treatment and Lee Mailman, unit manager, filed a complaint with the College of Registered Nurses of Nova Scotia about KT’s actions that day.
Later that year in October and November, MM’s mother, identified as “TM,” made public accusations against KT who filed a lawsuit against MM for defamation.
Investigator Darlene Mott launched a probe into the complaints about KT. On April 15, 2017, DH emailed Mott.
“I had expected to be interviewed by now as I was directly involved in the situation but perhaps you are not aware of the background issues surrounding Mailman’s claims. I have just received a cancer diagnosis and my surgery and treatment will begin shortly. I want to ensure you have my testimony and I would like to provide this information as soon as possible before I begin my cancer treatments. (KT’s) legal representative has informed me that I need to notify you directly with this request,” said DH.
Repeated attempts to meet with Mott were unsuccessful and DH wrote a letter that detailed the information. DH wanted it on the record before she went into surgery and she emailed it to Mott on April 21.
After KT and TM’s lawyers prepared the defamation cases, TM called Mailman on April 5, 2018, and said she believed that DH had revealed private information about her son, MM, that breached his confidentiality.
A privacy officer for the hospital advised TM on May 29 that an investigation found that DH did violate MM’s privacy. The hospital promised to investigate and on June 20, DH was suspended.
DH was terminated on Oct. 16 for three separate breaches of confidentiality. “There is evidence to support that you shared similar information with another third-party legal counsel where there was a sworn affidavit,” said the letter about the information shared with KT’s lawyer.
The Nova Scotia Government and General Employees Union (NSGEU) immediately grieved the decision. It argued that DH was well within her rights to disclose the information about MM because it was in a “protected occasion.” DH was providing information that would form a judicial proceeding and this provided her with immunity, said the NSGEU.
The employer said that because the statements didn’t end up in court and the fact that DH reached out to Mott first meant she “insinuated” herself into the process and, therefore, didn’t deserve immunity.
Arbitrator Augustus Richardson disagreed. “I am satisfied and so rule and direct that the employer was not and is not entitled to use or rely upon the three ‘statements’ listed in its termination letter as grounds justifying any kind of discipline. The statements were made and given in a context that created for DH an absolute immunity, notwithstanding that they might have breached patient confidentiality — and notwithstanding that had the disclosure been made under different circumstances, unconnected with any judicial or quasi-judicial proceedings, it might well have been subject to discipline.”
However, the grievance was not dismissed, said Richardson, and it’s up to the employer to decide on whether to continue with termination. “The employer may have had other grounds for discipline (disclosed or not in the termination letter). But it does mean that in seeking to meet the onus on it of establishing just cause for discipline, up to and including termination, the employer cannot rely upon the three statements, their contents or the fact that they were made, even if their contents breached patient confidentiality. Other grounds must be provided and relied upon.”
Reference: Nova Scotia Health Authority and Nova Scotia Government and General Employees Union. Augustus Richardson — arbitrator. Gary Rankin for the employer. David Wallbridge, George Franklin for the employee. April 15, 2019.
