SAMPLE ISSUE

ALTHOUGH HEARSAY, STATEMENTS BY PATIENTS WHO DIED PRIOR TO ARBITRATION HEARING ADMISSIBLE, COURT RULES

In determining the admissibility of complaints about a nurse by two patients who passed away before a hearing was held regarding the nurse's dismissal, an arbitration board decided that the evidence, although hearsay, was necessary and reliable, as the accounts were similar, the patients were initially hesitant to report their complaints, and their concerns were serious. Applying a standard of review of correctness, the decision was upheld on judicial review by an Alberta judge. Details below.

WORDING OF COLLECTIVE AGREEMENT CLEAR AND UNAMBIGUOUS: EMPLOYEES ENTITLED TO COPIES OF PERSONNEL DOCUMENTS FREE OF CHARGE

A collective agreement article, which provided that nurses were allowed to examine documents in their personnel files, and that "upon written request the nurse shall also receive an exact copy of such document," was held by an arbitrator to mean that nurses were entitled to copies free of charge, in the absence of any explicit provision to the contrary. Details below.

ALTHOUGH HEARSAY, STATEMENTS BY PATIENTS WHO DIED PRIOR TO ARBITRATION HEARING ADMISSIBLE, COURT RULES

The Facts:

After an employee's dismissal was upheld by an arbitration board, based largely on the hearsay evidence of two patients who had passed away, the union applied for judicial review.

Lorna Wright had worked in the healthcare industry for 30 years, culminating in 8 years of service as a nursing assistant in the palliative care unit of the General Hospital in Edmonton, Alberta. By all accounts, she was generally fun to be around, and liked to interject a bit of humour into most situations. However, in August 2003, two of the patients under her care complained of being subjected to inappropriate sexual comments.

The unit manager visited both patients, dubbed "Mr. Mullen" and "Mr. Forrester" by the board, on August 25, and recorded non-verbatim statements, which the patients signed.

On August 28, 2003, Wright's employment was terminated for making inappropriate comments of a sexual nature to each of the two patients. By the time the hearing of her grievance took place, both patients had passed away. She denied making any of the inappropriate comments alleged by the patients. The arbitration board admitted evidence of the complaints made by the deceased patients, and upheld Wright's dismissal largely as a result of this evidence. In so doing, the board applied the principles governing the introduction of hearsay statements, set out by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531, which require that the hearsay statement be "reasonably necessary" and "reliable." The board found that the hearsay evidence met these requirements, as it was necessary due to the deaths of the patients, and it was reliable, given the circumstances and a finding of adverse credibility against Wright. The board indicated that it might have substituted suspension for dismissal, with relocation to a less sensitive area, given Wright's very satisfactory employment record, "had [it] found Ms. Wright's evidence more persuasive and had she given an indication of recognizing the inappropriateness of such humour in circumstances like these."

The union applied for judicial review of the board's decision that the employer had just cause to dismiss Wright, or alternatively, of its failure to substitute a lesser penalty for dismissal.

The Arguments:

The union argued that the appropriate standard of review was correctness and that, in admitting and relying upon hearsay evidence, in preference to Wright's oral testimony, the board had denied Wright a fair hearing. It questioned the finding that the hearsay evidence was necessary, because in each case a third person may have been present when the statements were allegedly made, yet no such third persons were called to testify. Furthermore, it challenged the finding of reliability, as one of the patients had experienced a period of delirium prior to voicing his complaint, and there were differences in the two written versions of that patient's complaint. Alternatively, the union argued that the board had breached the rules of natural justice by treating Wright's denial of the incidents in question and her lack of remorse as factors in deciding not to substitute an alternative form of discipline for that of termination.

The employer maintained that reasonableness was the correct standard of review, and that the Board's decision would survive that lesser level of scrutiny. With regard to potential witnesses to the incidents, the employer submitted that the fact that no witnesses were called was equally consistent with the inference that they had nothing to contribute. It argued that this inference should be drawn from the board's statement, in accepting the necessity of the evidence given the patients' decease, that "there are also no other persons whose evidence might be capable of providing the proof in question by direct evidence."

The Decision:

Judge Myra Bielby, of the Alberta Court of Queen's Bench, held that the Board had correctly concluded that the hearsay evidence was both necessary and reliable, and had "properly considered the employee's failure to accept and understand [that] the impugned conduct was improper in declining to reinstate her into her employment."

In cases of alleged breach of procedural fairness, Bielby noted the following factors, set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), [1999] S.C.J. No. 39 (QL), need to be considered in determining the appropriate standard of review: "(a) the nature of the decision and the process followed in making it; (b) the nature of the statutory scheme; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the person challenging the decision; and (e) the choices of procedure made by the tribunal itself." Given the fact that the question with respect to hearsay evidence was "akin to a mixed question of fact and law," and that of whether the employer had breached the rules of natural justice was "akin to a question of law"; that the alleged errors were "central to the ultimate conclusions reached"; and that the decision was of great importance to Wright, as her employment was at stake, Bielby declared that correctness was the proper standard of review.

In considering whether Wright was denied a fair hearing due to the board's admission of and reliance on hearsay evidence, Bielby considered the factors of necessity and reliability. The Supreme Court of Canada's statement in R. v. Smith, [1992] 2 S.C.R. 915 that the death of a potential witness meets the criterion of "necessity" supported the board's conclusion that the hearsay evidence was necessary, since the two patients were dead. Moreover, Bielby stated that it was "highly unlikely" that the board would have failed to consider the possibility of witnesses. She found that "the board's conclusion that there were no other persons whose evidence might be capable of proof of the question shows that the issue was raised before it." Furthermore, there was no basis for drawing an adverse inference from the fact that the potential witnesses were not called, as there was nothing to show that they would have been able to provide material evidence had they been called, and because the hospital did not have sole control over the potential witnesses. The board was therefore correct in concluding that the necessity of the hearsay statements had been established, Bielby stated.

As to the reliability of the hearsay evidence, Bielby noted that in Smith the Supreme Court of Canada declared that a hearsay statement is "reliable" if it was made "under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken." With respect to the evidence of Mullen's complaint, the board had considered the fact that Mullen's doctor was of the opinion that he could not have hallucinated in such detail, that there was no evidence to suggest that Mullen and Forrester had colluded, and that the "chance of two gentlemen bringing forward similar complaints about an employee's conduct, each unrelated to the other, is itself improbable." In assessing the reliability of the evidence of both patients, the board also considered that Wright was contradicted by her own witnesses; that the written records of the evidence were made shortly after the complaints; that both patients were reluctant to complain out of fear as to the effect on their care; that both patients were approaching death and would have been disinclined to raise any concerns unless they were serious; that the two patients did not know one other; and that Wright had a reputation for injecting sexual innuendo into her conversations with staff, families and patients on a regular basis. With respect to the differences between the written versions of Mullen's complaint, the board noted that the written summaries of the patient's complaint were prepared by two different people. In the end, Bielby determined, the union had "not established that Ms. Wright did not receive a fair hearing in relation to the issue of just cause for discipline."

Finally, with respect to whether or not the board had breached the principles of natural justice and procedural fairness by relying on Wright's lack of remorse in declining to substitute a lesser penalty for dismissal, Bielby stated: "The Board's conclusions in full reveal its decision not to reinstate was imposed not because Ms. Wright denied the conduct in question in her testimony but because her conduct and evidence throughout led to a breakdown in the employment relationship. It was her lack of recognition of the inappropriateness of the alleged behaviour in the circumstance in which she worked which led to a concern that it might be repeated and thus increase the risk of harm to a vulnerable population, dying men in palliative care." There was no reviewable error in considering the employee's willingness and ability to change in determining the appropriate penalty. In the result, Bielby upheld the board's decision.

Comment:

The union referred to Teamsters Union, Local 419 v. Cannet Freight Cartage Ltd. (1993), 35 L.A.C. (4th) 314 (Bendel) as arbitral authority for the proposition that it is inappropriate to consider an employee's untruthfulness in testifying when considering penalty. While Bielby noted that a proper reading of the board's decision revealed that denial of reinstatement was due to the grievor's refusal to acknowledge the inappropriateness of her behaviour, not because she had lied, Bielby nonetheless referred to CUPE, Local 46 v. Medicine Hat (City), [2001] A.G.A.A. No. 73 (QL) (Casey), in which the arbitrator declined to reinstate an employee, despite ruling that dismissal was too severe, as the grievor's lack of candour or truthfulness during a police investigation undermined the trust and confidence necessary to the employment relationship.

WORDING OF COLLECTIVE AGREEMENT CLEAR AND UNAMBIGUOUS: EMPLOYEES ENTITLED TO COPIES OF PERSONNEL DOCUMENTS FREE OF CHARGE

The Facts:

When a nurse, who had requested a copy of her personnel file in order to dispute what she regarded as the termination of her employment, faced a charge of almost $800 for one copy of the file, the union disputed the employer's ability to charge for the photocopying.

The issue arose when a nurse who was off on medical leave was deemed by her employer, Middlechurch Home, to have resigned. The nurse regarded her employment as terminated and filed a grievance, which was eventually resolved with her reinstatement. In the meantime, she requested a complete copy of her personnel file. It took the employer eleven hours to photocopy the file, as the nurse had been with the employer for nineteen years, and the file was large, and full of small notes and clippings. When the nurse was advised that the file was ready for pick-up, she was informed that the cost was $1.50 per page, and that there were 520 pages. 

The charges were requested in accordance with the employer's Policy Manual, which had been in existence since 1994, before the union was certified in 1997. The section dealing with "Access to Personnel Files" directed that a charge of $1.00 be levied per page copied. While there were initially 23 copies of the Policy Manual floating through the facility, that number was reduced to three by 2003. In 1999, the charge for copying was increased to $1.50 per page, and the revised policy was inserted into the manuals, but not posted. As a matter of practice, the employer charged all employees for photocopying, but requests for copies of personnel file documents generally numbered only one or two per year. The employer did not charge for copies of performance appraisals requested by employees.

Article 2905 of the collective agreement provided that: "A nurse shall be given the opportunity to examine any document which is placed in her/his personnel file, including, but not limited to, those documents which may be utilized to substantiate a disciplinary action against her/him, and her/his reply to any such document shall also be placed in her/his personnel file. Upon written request the nurse shall also receive an exact copy of such document." Article 2906 provided, among other things, that "Any nurse who has been terminated may consult her/his file and upon written request shall receive copies of specified documents so long as the written request is made within sixty (60) days of her/his termination."

The union grieved the fact that the employer was charging nurses for copies of documents from their personnel files.

The Arguments:

The union's position was that the wording of Article 2905 was clear and unambiguous, and entitled an employee to receive a copy of personnel documents free of charge. The only requirement the employee had to fulfill was to make a written request. There were also no restrictions as to the number of documents that could be requested. Furthermore, the union stated, the exact same article had already been interpreted in the union's favour in Selkirk Nurses Local 16 of the Manitoba Nurses' Union v. Selkirk & District General Hospital, [1998] M.G.A.D. No. 7 (QL) (Jones), in which the hospital's policy of charging 20 cents per page was found to be inconsistent with the article, and there was no basis on which the case could be distinguished here. In response to the employer's assertion of its management rights, the union argued that any unilaterally-introduced employer policy had to comply with the requirements in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., Ltd. (1965), 16 L.A.C. 73 (Robinson), i.e., that it be consistent with the collective agreement, not unreasonable, be communicated to the employees, and be consistently enforced. In this instance, the union claimed, the policy was inconsistent with the clear wording of Article 2905, and the management rights article could "not abrogate the responsibility of management imposed in other clauses of the collective agreement"; it was unreasonable to charge $1.50 per page copied; the employer had failed to bring the 50 cent increase to the attention of the employees, as it had not posted the policy; and finally, the policy had not been consistently enforced, as the employer provided free copies of employees' performance appraisals, if requested.

The employer agreed that the collective agreement would supersede any employer policy, but maintained that the agreement was silent as to the issue of charging for photocopying. On the other hand, under the preamble to the collective agreement, the parties had agreed "to provide the best quality of healthcare...through the successful operation of the HealthCare Facility," which the employer claimed referred to economic success. In addition, Article 401(1) provided: "The union recognizes the sole right of the employer, unless otherwise provided in this agreement, to exercise its function of management as set out hereunder: (1) ...to maintain order, discipline and efficiency and in connection therewith to establish and enforce reasonable rules and regulations, policies and practices from time to time to be observed by its nurses." If the collective agreement was read as whole, the employer asserted, it was entitled to limit what copies could be made, and to charge for those copies. In respect of the KVP requirements, the employer acknowledged that the increase in copying charges from $1.00 to $1.50 was not posted, but the nurses were aware of the $1.00 per page charge, and the employer could therefore rely on the charge as included in the 1994 policy. Furthermore, aside from the performance appraisals, it had been the employer's consistent practice to charge for copies. The employer distinguished the Selkirk case by pointing out that there was no reference in Selkirk to a similar preamble or management rights clause. Finally, the employer took the position that Articles 2905 and 2906 entitled employees to copies of certain documents only, not a copy of their entire personnel files.

The Decision:

The majority of an arbitration board chaired by Diane Jones held that the clear and unambiguous wording of Articles 2905 and 2906 indicated that nurses "shall" receive copies of documents on written request, and that there was no reference to a charge for those copies anywhere in the collective agreement.

Jones was not persuaded that either the preamble to the collective agreement or the management rights provision in Article 401 created the authority for the employer to charge for copies. "Even though the management rights clause applicable to Middlechurch may be unique," she declared, "it is not sufficient to persuade the Board that it should reach a conclusion different than what was determined in the Selkirk Hospital case." The arbitrator also noted that the employer's own Policy Manual made it clear that its general provisions did not supersede the specific provisions contained in any collective agreement in effect. Since the collective agreement did not provide for any charge for copies, it took precedence over the Policy Manual. The employer was therefore not entitled to charge for copying, not even the $1.00 charge provided for in the 1994 policy.

As for the employer's objection that the nurse did not review her file first, in order to request copies of specific documents, the arbitrator noted that while the opportunity to review the file was provided to employees, this was not a requirement for obtaining copies. All that was required was a written request. For these reasons, Jones allowed the grievance, and ordered the employer to cease charging nurses for copies of documents.

Comment:

Arbitration boards are not bound to follow the decisions of other arbitration boards. However, as Arbitrator Louisa Davie stated in CUPE, Local 79 (Deadman) v. City of Toronto (1999), 81 L.A.C. (4th) 315, "[w]here the issues are the same, or substantially similar..., for purposes of consistency of application of collective agreement provisions, boards of arbitration generally follow such decisions unless the subsequent board of arbitration is of the view that an earlier decision was clearly wrong or patently unreasonable. However, the subsequent board of arbitration need not feel compelled to follow a prior decision where the matters decided, or the determinations made, were with respect to matters that were not central to the prior award."

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