In-Depth Analysis

Employers’ Advisor – Special Edition

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Workplace News in the Long-term Care Sector

Labour Relations and Resident Abuse

On June 1, 2017 Elizabeth Wettlaufer, who had been working as a Registered Nurse (R.N.) in long-term care, pleaded guilty to 8 counts of first degree murder of residents in her care, 4 counts of attempted murder and 2 counts of aggravated assault.

There is a Bill of Rights for Ontario residents of long-term care. It is found in the Long-Term Care Homes Act. It provides that all residents have the right to be treated with courtesy and respect in a way which recognizes their dignity and which expressly states that every resident has the right to be protected from abuse.  On its face, Ms Wettlaufer committed 14 acts of resident abuse.  How did we get here?

In May 2004, the Ontario provincial government released a paper entitled Commitment to Care:  A Plan for Long-Term Care in Ontario.  Following this study, the provincial government financed the hiring of more staff; educated the public about the quality of care in various homes; provided a complaint line and more annual inspections and set up residents’ councils.

In 2006 the government introduced the Long-Term Care Homes Act which Mr. Smitherman, the responsible Minister asserted provided more protection than any other jurisdiction in Canada.  Mr. Smitherman was unambiguous about the goals he was setting for the then 618 long-term care homes in the province:  there will be zero tolerance of abuse and neglect of residents.  The Act came into force on July 1, 2010.

But what does “zero tolerance” mean in a workplace governed by collective bargaining where the fate of employees terminated for resident abuse is in the hands of arbitrators, who decide based on arbitral principles and the language of the collective agreement, which they may have in part written?

In May 2012 the public received a report entitled the Long-Term Care Task Force on Resident Care & Safety (the “Donner report”).  As stated in its Executive Summary “The focus of the Task Force was to develop an action plan that examines and addresses the factors contributing to incidents of abuse or neglect in long-term care homes.”  I reported to this Task Force about the effect of the arbitral system in long-term care.  Subject to the time limits it was working with, the Task Force recognized the arbitration process as an area that needs more time and thought to address.  The Task Force encouraged “the government to engage stakeholders in the long-term care sector to discuss ways to improve the arbitration process for labour cases involving the abuse and neglect of residents in long-term care homes.”

The provincial government has now established an Inquiry to shine a light on the Wettlaufer tragedy.  This Inquiry is mandated to inquire into the events which led to the offences committed by Ms Wettlaufer; to inquire into the circumstances and contributing factors allowing these events to occur, including the effect, if any, of relevant policies, procedures, practices and accountability and oversight mechanisms; and to inquire into other relevant matters that the Commissioner considers necessary to avoid similar tragedies.  I wrote to this Inquiry to report about the role of arbitration as a relevant matter.  On August 9, 2018 counsel to the Inquiry responded to me that my “ideas are most interesting” but advised that “reform of labour relations in the LTC sector is beyond the scope of the Inquiry”.

Let’s consider what the Inquiry will be disregarding.

Providers of long-term care in Ontario, whether private, municipal or charitable, are very much operators for the provincial government.  The government micromanages the homes through statute, regulation, guidelines and funding.  The funding is delivered in envelopes designated for specific purposes.  By way of example, soap in residents’ rooms comes from one funding envelope; soap in the hallways comes from another.  There is no incentive for an operator to underspend from the nursing envelope and pocket the difference and that is because if it is not spent, the residual is returned to the government.  The same rules apply for funds for personal and support services and for food.

The long-term care sector is largely unionized.  As such, any discharge of a long-term care employee involving resident abuse is inevitably grieved, with the union asserting that the employer did not have just cause to terminate.  These grievances are referred to arbitrators for resolution.  Interpreting and applying collective agreements constitutes a large part of what labour arbitrators do; these are called rights arbitrations.  A smaller portion of their work is dedicated to writing the terms of the collective agreement when the parties cannot reach an agreement; these are interest arbitrations.

Consider the impact an interest arbitrator may have on the delivery of nursing service and its impact on the residents.  Senior management and clinical nurses working for the homes help determine the most appropriate mix of registered nurses (RNs), registered practical nurses (RPNs) and personal support workers (PSWs) with the funds available that best serves the multiple interests of the residents.  Bear in mind that it is the PSW who assists with all of the residents’ activities of daily living:  helping them to get up in the morning, toileted, washed, dressed, groomed and portered to the dining room where they are assisted with eating.  They help the residents with the basics of their daily lives and they help them live with dignity.  In one case I litigated over a period of 18 days, the arbitrator recognized the importance of each of these job categories and the difficulty of determining the right mix:

“The evidence indicates that RNs, RPNs and PSWs all have a role to play in providing care to nursing home residents. Determining the right “staffing mix” is not an easy task as it involves various factors including the layout of the nursing home, the acuity of the residents and available funding.”

One of the impasses often referred to interest arbitrators is the demand by the union representing RNs not only to increase their wage rate but also to increase the number of weekly hours to be worked by registered nurses.  Having more RN hours in long-term care in a world of unlimited funding is a good thing.  But there are not unlimited funds to finance these extra RN hours.  If the addition of RN hours increases the nursing costs above the funds available in the nursing envelope, the homes are not permitted to raise their prices or add more residents to offset the cost of the additional RN hours.  The evidence in one leading case corroborated that in such cases an increase in RN hours will often be associated with reductions of other staff, in particular the RPNs and PSWs. The impact of the award is that the staffing mix set by the employer in the interests of the residents is overridden by the arbitrator in the interests of the RNs.  With the reduction of PSWs there is less care for the activities of daily living.  There are fewer nursing staff on the floor.  The appropriate staff mix has been changed.  The residents lose.

There is a worrisome aspect to this trade off.  The law requires that interest arbitrators in such cases are required to consider the number of other staff who will be laid off by their decision to increase RN hours.  That law is often disregarded.  When we consider the quality of care in the long-term care sector we should recognize that it is the arbitrators who may be undoing the homes’ clinical decisions about staffing levels.

When employees are terminated for allegedly abusing a resident, the unions grieve and refer the matter to rights arbitrators.  This arbitral process was developed in the industrial context. It is not a system that was designed for a sector where the abused residents may not have long to live; may not be cognitive much longer; and may be terrified to testify against and in the presence of the very people who work in their homes and who are there to provide for their activities of daily living.

As a matter of law, managers are excluded from the bargaining unit of employees.  It cannot be otherwise; a manager may not at one and the same time discipline employees and then act as a union steward to defend against that very discipline. But in long-term care it is typical that RNs and RPNs manage other employees who are either in their union or another union in the same home.  In one case I litigated the managing RPN failed to tell the senior management of abusive acts she observed by a PSW who was her sister member in the union.  When the employer later learned of the abuse from another source, and terminated the employment of the PSW, the union argued that the delay caused by the RPN’s failure to report her sister in a timely way nullified the discipline.  What is a trite rule to protect the quality of manufactured goods in organized work places is not applied to protect our residents.  Long-term care operators must rely on RNs and RPNs to report alleged abuse by their brothers and sisters and to participate as employer witnesses at arbitrations.  When Mr. Smitherman introduced the Long-Term Care Homes Act, 2007 to provide whistle-blower protection he respectfully misread the problem.  It is not the employer who is creating the disincentive to report; it is the pressure of reporting on one of your own.

The costs of arbitration about terminated long-term care employees is financed out of a different envelope than the ones referred to above.  The costs of the arbitration are financed out of the envelope from which the employers expect to earn a return on investment.  For publicly run homes, freed from making profits the litigation costs may be diverted from paying for otherwise planned roads, water protection, fire, etc.  With this funding structure, it is often prudent for the employer at an arbitration disputing the termination of an employee for alleged abuse to reach a settlement with the union.  The settlement will cost less than the litigation costs and will guarantee the employee will not return to that home’s workplace floor.  The parties agree that the employee will leave the workplace with some money; the employer will write a reference that simply says when the employee worked at the home and in what job; and that the employee left for personal reasons (which seeing there is no arbitral award finding abuse is true).  This dynamic ensures that every termination will be grieved and that the alleged abuser will be free to work elsewhere in the same sector.

The costs of arbitration are quick to rise.  If the police have taken away critical evidence for a criminal charge stemming from the same alleged abuse, the employer may have to subpoena the police and make submissions to get it back so the home can protect its residents at arbitration.  Up go the litigation costs.

It is a system in which an employer who asks an employee what happened may have any discipline challenged if a union steward was not present when the employer tried at first instance to understand what happened.  Again up go the litigation costs.  It is no answer that the rights arbitrators are simply interpreting the collective agreement; when they wear their interest arbitration hats, they write the agreements.

Until the determination of these terminations is resolved at a central board of inquiry—where the adjudicators are specifically trained about long-term care—and unless the employer is relieved of financing the full cost of the litigation, it will always be in the home’s interest to remove the employee from its workplace, settle the grievance, leaving the employee free to show up at some other home.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact the authors, or any Mathews Dinsdale lawyer.

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