Canada: The Wash Cloth Defence: Employer Fails To Prove Cause Based On Alleged Resident Abuse
Labour, Employment & Human Rights Bulletin

Residents in long-term care homes deserve care free from abuse by employees of the facility. A recent decision ¹ is a good reminder to long-term care employers about the importance of taking appropriate action to protect residents, and the difficulties of proving a case against an employee accused of abuse.

What Happened?

The employer operates a long-term care home with a secure unit for residents with severe dementia, cognitive impairment and/or behavioural issues. The employer fired a personal support worker after an investigation determined that she had likely physically and verbally abused an elderly resident. The resident had Alzheimer's disease, and severe dementia. She was unable to verbalize coherently and was often resistant to care.

The alleged abuse occurred while the grievor and two other personal support workers were helping clean-up the resident after incontinence. Two personal support workers had to hold the resident's arms and needed to put face cloths in the resident's hands to protect themselves from being scratched. The grievor was cleaning the resident. It was alleged that the grievor slapped the resident's buttocks while performing the cleaning and said, "Stop being bad. Why should she have all the fun?" after being asked to stop provoking and agitating the resident, contrary to the resident care plan, by one of the other personal support workers. The grievor also allegedly attempted to influence the investigation by contacting her co-workers after her suspension.

The union filed a grievance about the termination.

What did the Arbitrator Decide?

The arbitrator found that the employer had no direct evidence of physical abuse. The other two support workers did not see the grievor hit the resident. They were holding the resident's arms and hands, and busy not trying to be scratched. They heard a sound described as "skin on skin". The two support workers assisting the grievor did not immediately report the incident. It appears they were not sure the sound they heard was a slap. It was not until they spoke to each other later, when they were alone, after the grievor's shift ended, that they concluded the sound was a slap. The arbitrator decided this was insufficient to prove a physical assault given the seriousness of the allegation, and given the sound could have been made, as the grievor alleged, when a dropped, wet washcloth hit the wet floor. 

The arbitrator found that the grievor had verbally abused the resident. The arbitrator rejected the grievor's explanation that it was the resident who spoke and was overheard by the other workers. This was not a credible explanation because the resident was not able to verbalize articulately. The two other workers had also testified that they heard the grievor speaking to the resident.

The arbitrator substituted the termination with a five-day suspension without back wages but with no loss of seniority. The decision not to award back wages was made because of the grievor's complete denial of wrongdoing, and her lack of candour with the employer and the arbitrator.

Lessons for Employers

A higher standard of conduct is expected from employees in long-term care where residents are particularly vulnerable. While arbitrators continue to recognize this higher standard, employers sometimes fail to successfully uphold terminations of employees accused of abuse, particularly where a resident is non-verbal.

This case suggests some things that may help. Subject to complying with any collective agreement agreements rules and other legal obligations, employers should:

• Provide regular training to employees providing care on how to work safely with residents with dementia, cognitive impairments, and/or behavioural issues;
• Require employees to review a resident's care plan, or to be otherwise appropriately informed prior to providing care;
• Train employees on and review with them, as often as necessary and at least annually, the policies, rules and standards that prescribe levels of care or appropriate conduct, and prohibit abuse. Employers should take appropriate action to investigate and remedy any possible breaches;
• Require employees to report immediately any instance of actual, potential, or suspected resident abuse;
• Ensure the investigation tools and processes they use are up-to-date and consult with their lawyer and other subject matter experts about how to investigate allegations of abuse and;
• When an employee is directed not to work and remain home pending an investigation, the employer should ensure the employee is aware of any other rules applicable, including for example, that the employee not attend the workplace unless directed to do so, or communicate with certain employees. An employee should be informed of the consequences of breaking the rules.

Footnote

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