Canada: Court Upholds Just Cause Termination For Nurse Who Bites

In what is one of the last Alberta labour arbitration awards to be judicially reviewed by the Alberta Court of Queen's Bench (the "Court"), the just cause dismissal of a nurse for biting a patient was upheld.

In October 2014, Alberta Health Services ("AHS") terminated a Licensed Practical Nurse ("LPN") for biting a patient severely enough to cause physical harm to the patient. The patient was an 80 year old man that had been admitted to the stroke unit. The LPN's termination from employment was grieved by her union, the Alberta Union of Provincial Employees (the "Union"). Notably, the fact that the bite occurred was admitted by the LPN, however the Union argued that the LPN bit the patient in self-defence.

In 2016, the grievance went before an Arbitration Board. In a 2-1 decision rendered May 15, 2017, a majority of the Arbitration Board dismissed the grievance, upholding AHS's decision to terminate the LPN's employment (the "Arbitration Award"). Of interest, at the arbitration neither AHS nor the Union called the patient that was bitten as a witness, however another patient who was in the room during the incident was called as a witness for the Union. That witness was unable to provide clear testimony as to what he saw given that the room in which the incident occurred was dark, and the incident occurred in the middle of the night.

The Arbitration Award concluded that the LPN was not a credible witness, and the Arbitration Board did not accept her version of events. Namely, that the bite occurred during a scuffle between the LPN and the patient. The LPN alleged that the patient had picked up a door stop from the floor and held the LPN in such a way that she thought she was going to be stabbed. The LPN further asserted that the patient had begun urinating on her, in one instance, and that the patient had pushed his fingers into the LPN's eye sockets, in another instance. Based on inconsistencies in the LPN's statements both at the hearing, and during AHS's investigatory process, a majority of the Arbitration Board determined that neither of these assertions were substantiated. The majority of the Arbitration Board, in fact, determined that the scuffle arose when the LPN attempted to take the patient's vital signs and was interrupted by the patient's desire to go to the bathroom. At that time, "instead of us[ing] other defensive measures, the [LPN] lost her temper and bit [the patient] in the right forearm leaving 6 puncture marks" (at p. 37).

The single issue before the Court was whether the Arbitration Award was reasonable. The Union challenged the Arbitration Award on the basis that it made factual findings without the appropriate evidentiary foundation, in particular, that it improperly downplayed the significance of the scuffle between the LPN and the patient; and further that because of these incorrect factual findings, the Arbitration Award did not appropriately consider whether the LPN was acting in self-defence. Thus, the Arbitration Award was unreasonable.

The Court held that the appropriate standard of review was reasonableness and that it must determine whether the Arbitration Award was justifiable, transparent, and  intelligible in order to make such a determination. At the outset of the decision, the Court determined that the severe bite inflicted upon the patient created a sufficient case for termination in the first instance, and so in these circumstances the LPN bore the onus of demonstrating that her termination from employment was not justified – a justification that the LPN ultimately failed to establish.

While the Court took issue with how some of the evidence was characterized by the Arbitration Board, on a consideration of all of the evidence, the Court did not find that there was a basis for interfering with the majority of the Arbitration Board's findings regarding credibility of the witnesses and cause for termination of employment.

Overall, in concluding that the Arbitration Award was reasonable, the Court relied on the Arbitration Board's factual finding that the bite to the patient was extremely severe. There were pictures entered into evidence that showed that "the[LPN] evidently sunk her teeth into the [patient's] forearm deep enough to cause it to bleed and leave puncture wounds". The Court reiterated and relied on the long standing principle that health care workers are expected to adhere to a high standard of conduct as it relates to patient care even in cases of reflexive assault.

In summary, the Court held that the Arbitration Award was reasonable in all of the circumstances, and dismissed the Judicial Review application filed by the Union.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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