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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
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