PSGB#P-2012-4661, P-2013-2207

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT OF ONTARIO

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ann Gronski

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Gavin Leeb

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 13, October 8, 9 & 16, November 18 & 26, December 19, 2014; February 23, March 13 & 16, April 20, May 5 & 25, 2015

Decision

1This decision deals with the complaint of Ann Gronski, R.N., contesting her discharge from her position as Health Care Manager at the Niagara Detention Centre.

Brief overview of the background to this complaint

2From the mostly uncontested evidence, it is clear that Ms. Gronski’s job at the helm of the Health Care Unit had been extremely challenging for some time when she was suspended pending investigation on November 23, 2012, due to wide ranging concerns about her performance. The investigator, retired Deputy Superintendent James Hogan, who had at one point been Ms. Gronski’s supervisor, interviewed Ms. Gronski in March, 2013, which was the first time she was apprised of the allegations against her. For several of the incidents in question, going back two years or more, that interview was the first time she had heard there were concerns about her performance. Those which were found to be substantiated by the investigator formed the basis for a formal allegation meeting on May 22, 2013 at which Superintendent Dave Wilson gave her an opportunity to respond.

3At a second meeting on June 5, 2013, the Superintendent discharged her for cause, based on the results of the investigation, which he found to be substantiated and his conclusion that the employer/employee relationship had been irreparably damaged. The discharge letter details several areas of concern, including medication errors, failure to abide by ministry policy in respect of handling medication, financial, inventory and scheduling practices, as well as practicing while her nurse’s license was suspended on one occasion. Superintendent Wilson came to the Niagara Detention Centre less than two weeks prior to Ms. Gronski’s suspension in November 2012, and thus was not relying on his own experience of her work. He relied on the findings of the investigation, together with Ms. Gronski’s responses at the allegation meeting, which he did not find to be sufficiently persuasive to dislodge the weight of the substantiated allegations which touched almost every area of her job. Although he was not relying on previous discipline in deciding on the termination, he had spoken to previous superintendents and deputy superintendents who had been her managers and had been given to understand that previous attempts to manage Ms. Gronski’s performance had been unsuccessful.

4At the time of her dismissal, Ms. Gronski had been a Registered Nurse for 42 years, with extensive and varied experience in both hospital and long-term care nursing and management. She had just over 7 years’ service with the Ministry as head of the Health Care Unit at the Niagara Detention Centre. She asks for the discharge to be overturned on the basis of a lack of progressive discipline and the very difficult circumstances under which she had been working for a protracted period of time.

The Issues

5There is really only one main issue in this case: Was discharge for cause with no compensation an excessive response? If the answer to that is in the affirmative, the remaining issue is the determination of the appropriate remedy. It was not disputed that there was reason for employer action in light of the situation in the Health Care Unit in the fall of 2012 and the years leading up to it.

6The case for the complainant highlights a number of ways in which it is said the employer did not treat the complainant fairly: delay in bringing the incidents in question to the attention of Ms. Gronski, absence of any notice that her job was in jeopardy, and failure to deal effectively with the serious longstanding problems in the Detention Centre’s Health Care Unit. Entrenched working relationship troubles of the unit, which pre-dated Ms. Gronski’s employment, formed the backdrop and partial explanation as to how events unfolded.

7I will deal with the parties’ arguments and more detail about the facts in dealing with these issues below, in the context of a discussion of the allegations in approximately chronological order, followed by a consideration of further context and mitigating circumstances.

The Allegations

Specific Incidents

a) Practicing while license administratively suspended

8The oldest of the specific allegations dates back to February 27, 2011, during a period of several weeks when Ms. Gronski’s nursing license had been suspended administratively because she had not paid her fees in time. Ms. Gronski acknowledges that she signed a pre-operative questionnaire and health care record for an inmate to be admitted to hospital for surgery on that date. This involved performing some nursing assessment, a function of a Registered Nurse, when she knew, or ought to have known, that her license was not valid. Her explanation, when it was brought to her attention during the investigation, some two years later and after having looked at the records, was that the day in question was very busy, being methadone clinic day, and that the other nurses were busy. When she testified about it over three years after the event, although she only vaguely remembered any specifics of the day, she said she likely did it unthinkingly because the inmate in question badly needed the surgery scheduled for the following week, for which the hospital needed the information that she signed. She mentioned that her mother had died recently and it was generally a bad time in her life and at work. Close to the time of this incident, she sent an e-mail to the Deputy Superintendent of the day asking for help with the bad behavior of one of her nurse subordinates and what she described as a dysfunctional unit.

The fact that her license had been suspended was known to the Deputy-Superintendent at or close to the time, both by her own report to him, and likely by correspondence from the regulatory body, the College of Nurses of Ontario. It was also information that was available to the Ministry’s Corporate Health Care office in Toronto, whose staff acts as supportive consultants to healthcare staff and their managers in correctional facilities throughout the province. That office receives notices from the College of Nurses of licensing interruptions, and the Deputy-Superintendent contacted Linda Ogilvie, the Manager of that office, at the time Ms. Gronski told him about it.

9Whether anyone in administration knew before the investigation in 2012/2013 that Ms. Gronski had performed any nursing function during the suspension of her license is not in evidence. In any event, there is no doubt that this would have been discoverable had anyone inquired, which there is no evidence that anyone did prior to the investigation.

10Likening this to evidence acquired after a discharge, which is not generally permitted to be used unless the employer did not know, and could not have discovered the information with reasonable diligence at the time, Ms. Gronski’s counsel argues that it is not fair to rely on it two years later to discharge her. In this regard, reference is made to Arbitrator Brandt’s decision in Air Canada and CAW, Local 2213 (Desroches), 1999 CanLII 35923 (CA LA), 86 L.A.C. (4th) 232, relied on in the Ontario Provincial Police decision cited in the Appendix. In the OPP case, the Grievance Settlement Board took into account that the grievors had not been asked about the incident there in question for two months after it happened. Further, relying on Aerocide Dispensers Ltd. and United Steelworkers of America, 1964 CanLII 958 (ON LA), 15 L.A.C. 41 (Laskin), cited in the Appendix, counsel submits that the employer should be limited to the one incident about which there was evidence of practice during the license suspension. This is the only incident that I have considered in this regard.

11The issue of Ms. Gronski’s practicing while her license was under suspension is referred to in notes of the investigation, from the interview with Dr. Todd Overholt, who provided doctor’s services to the institution throughout the period in question. There is no evidence before me about how or when it first came to light that Ms. Gronski had done at least one nursing function during a period of suspension. As a result, I am not in a position to say who first became aware of the information, or for how long it was known before anything was done about it. The fact that it was discoverable two years later on inquiry, suggests it was at least equally discoverable closer to the time of the event.

12Counsel for the employer emphasized in argument that the fact of practicing without a license put the Ministry at risk from a liability point of view, which was not disputed. The employer also suggested that Ms. Gronski was less than frank or timely with Deputy Superintendent Barry McTrach, to whom she reported at the time, about the fact of her suspension, and about what advice she received from the College of Nurses as to her scope of permitted work at the institution during the suspension. Neither Mr. McTrach nor Ms. Gronski had clear recall of the specifics of their exchanges about this at the time, an unreliable basis for making important findings of fact, and a good example of what happens to memory with the passage of time. The part that is documented indicates that Mr. McTrach contacted the Corporate Health Care office about the fact of the suspension, and there is no evidence of further follow-up. Nonetheless, the information about the length of the suspension and the hours Ms. Gronski worked during the same period was available at the time and later, and was not pursued until 2012/2013. There was no evidence from Ms. Ogilvie about any conversations with Ms. Gronski about this matter, although she testified that it was necessary for the Health Care Manager to have a valid nursing license.

13The fact that Ms. Gronski was not called to account for her practice during her license suspension for over two years left her in a position where she is prejudiced in terms of her potential for recall of the content and timing of her conversations with the College of Nurses, the corporate consultants and Deputy Superintendent McTrach, all of which would have a bearing on the issue of whether the employer condoned the misconduct by knowing inaction. Practicing without a license is a serious issue, often leading to discharge for such an offence alone, as several of the cases cited in the Appendix decide. Nonetheless, the lapse of time involved and the resulting lack of detail about the information in possession of the employer at the time and since leads me to consider this incident as part of the context of the overall employment relationship rather than something for which she was properly disciplined in 2013.

b) Interrupting doctor’s consultation with inmate

14Moving forward to the next incident substantiated in the investigation, to April 24, 2011, the evidence is that Dr. Overholt was seeing an inmate patient in his office in the Health Care Unit, with the door open and a Correctional Officer close by, consistent with usual practice in the jail. The doctor’s account is that Ms. Gronski interrupted his consultation, rudely berating the inmate for wearing his own shoes, rather than the required prison-issue ones. Dr. Overholt was very concerned that the privacy and confidentiality of his interaction with the patient had been violated, and consulted his regulatory body, the College of Physicians and Surgeons, about it. At a subsequent appointment with the same inmate, he charted that he had advised him of his right to make a complaint, but he did not raise the matter with Ms. Gronski. He indicated to the investigator that he was concerned about a negative reaction from her if he had spoken to her. The context for this was what appears to be a longstanding mutual dissatisfaction between Ms. Gronski and Dr. Overholt. The most recent manifestation of this had been a conflictive meeting earlier the same day over how urine testing should be handled for the methadone clinic without overburdening the workload of nursing staff.

15When the incident concerning the inmate’s shoes was raised with Ms. Gronski almost two years later for the first time by the investigator, she recalled the incident very differently from Dr. Overholt, putting it in the context of her ongoing experience with this and other inmates over the unpopular prison rule that inmates were not to wear their own shoes unless they were given the doctor’s permission to do so for medical reasons. She had some recall of the exchange, and acknowledges speaking to the inmate in Dr. Overholt’s presence, but does not believe she was rude, and says she did not enter the room. However, she did not remember the exchange in detail, not surprising given the lapse of time.

16The least that can be said of the situation was that the doctor and the nurse manager found each other difficult to deal with at times, in a working relationship complicated by the fact that she had the managerial authority in the Health Care Unit, but he had the effective control over her nurse subordinates in matters related to the care of the inmates because of their professional requirement to follow doctors’ orders. Dr. Overholt worked with Ms. Gronski throughout her tenure at the prison, and had had serious reservations about her performance for years, and eventually brought them forward in a way which propelled senior management towards the investigation which started in November, 2012. In his testimony, he mentioned having spoken to previous members of the administration about Ms. Gronski, but neither he nor any other witness gave details of any interventions by him prior to that of November 2012. This leaves the record quite ambiguous as to the length of time the administration was aware of the doctor’s concerns about Ms. Gronski’s performance, and there is no indication that anyone had heard from the doctor about the incident concerning the interruption about the inmate’s shoes until the investigation.

17Ms. Gronski’s conduct in interrupting the doctor to speak to the inmate about his shoes does appear to be a breach of appropriate professional practice. Nonetheless, it is one at the less serious end of the potential spectrum, and one for which Ms. Gronski did not have a fair opportunity to account given the passage of time. I do not find it to be properly counted as an incident for which she should have been disciplined in 2013.

c) Conversations with ombudsman’s staff

18The evidence made clear that inmates call the ombudsman’s office very frequently with concerns of all kinds, but most relevant to this case, with concerns about medication and other health care issues. It is expected that correctional staff will cooperate with the ombudsman’s staff in a timely manner and provide the required information when asked. Members of the ombudsman’s staff complained to Ms. Ogilvie’s Corporate Health Care office on two occasions to the effect that Ms. Gronski was rude, and/or unforthcoming with information. Ms. Ogilvie stated that these complaints occurred in September, 2011 and several months later, which I take to mean sometime in early or mid-2012. Ms. Ogilvie mentioned to Ms. Gronski that issues had been raised about her manner of dealing with the ombudsman’s staff, but there is no indication that, prior to the investigation many months later, she thought anything further needed to be done about it. Ms. Gronski’s recollection of the exchange was that she and Ms. Ogilvie had an amicable discussion about the telephone manner of one of the ombudsman’s staff and that Ms. Ogilvie had not indicated dissatisfaction with her handling of the situation. In evidence, Ms. Ogilvie acknowledged that an e-mail communication close to the time of Ms. Gronski’s suspension was an appropriate exchange on Ms. Gronski’s part with the staff member of the ombudsman’s office with whom there had been prior difficulty.

19I do not find that these circumstances provide a proper basis for discipline in 2013. To the extent that Ms. Ogilvie was warning Ms. Gronski about it when she discussed the complaint she had received, it had been dealt with, and apparently effectively, as the later communication was appropriate. There was also an issue with one of the ombudsman’s staff about Ms. Gronski’s preference for using e-mail to provide information, contrary to his preference for a phone conversation, but the evidence did not establish that Ms. Gronski was ever told that communication was only to be by phone or that e-mail was to be excluded. Nor is it something that is inherently obvious.

20Ms. Gronski’s uncontradicted evidence was that she knew that she had an obligation to communicate and answer questions from the ombudsman’s office and that she had a good rapport with all but one of the ombudsman’s staff. She described the exception as having an edge to him, and her experience that emails worked better for giving him answers, as he became sarcastic if he did not like the answers.

21In the circumstances, I do not find that the evidence substantiated the investigator’s conclusion that Ms. Gronski failed to see the importance of working with the Office of the Ombudsman.

d) Failure to complete audit report

22The next allegation relates to an incident which occurred in the spring/early summer of 2012, a period in which all the Health Care Units in correctional facilities were audited by nurse managers of other units. This was an initiative of the Ministry’s corporate health group in Toronto in which almost all the health care managers in the Ministry participated as auditors. Ms. Gronski attended two other Health Care Units in this capacity, collecting the necessary information with another manager. The expectation was that she would then write a report, which she never did, despite several reminders, nor pass the information on to the other auditor so it could be done by someone else. She was reminded about this several times by Ms. Ogilvie and the administration of the Detention Centre. As late as November 14, 2012, Deputy Superintendent Jones reminded her in writing noting their agreement that it would be done by November 15.

23This was a very current allegation at the time of Ms. Gronski’s suspension, and is quite indicative of the state of affairs in the period leading up to her last day of work at the institution. She had participated in the audits along with the other nurse managers in the province, but did not manage to either produce the follow-up report, pass on the information to others, or let them know of her predicament so that others could produce it. The audit initiative, which was intended to produce a snapshot of all the Health Care Units at about the same time, was delayed as a result, and the units in question had to be re-audited at a later time. Ms. Gronski acknowledges she should have given the information to the other nurse managers to complete. Her explanation is that she was working so much as an R.N., given staff shortages, that she did not have time to complete this, or many other, administrative tasks. Although, as Ms. Gronski’s counsel argued, it is true that earlier follow-up and direction from the Deputy Superintendent or Ms. Ogilvie, to produce the report or return the materials, might have solved this issue much sooner, it is nonetheless a problem in terms of Ms. Gronski’s own ability to manage the situation.

24I find this to be substantiated and a proper basis for discipline.

e) Behaviour during audit of Niagara Detention Centre Healthcare Unit

25As part of the province-wide audit of Health Care Units mentioned above, two nurse managers conducted an audit of the Niagara Detention Centre Healthcare Unit in June 2012. It is alleged that Ms. Gronski misled the auditors as to the upkeep of emergency equipment and the whereabouts of outdated medical directives. During the audit, Ms. Gronski became very upset and left the detention centre. She says this was because one of the auditors had made a remark about Ms. Gronski’s personal life, which betrayed a confidence she had shared when they had worked together at another correctional institution, and that in her upset, she could not answer their questions. The auditors had asked to see where emergency oxygen equipment was kept, to which Ms. Gronski had given them an unclear answer just before she left the conversation with them. They concluded that she was trying to avoid their questions when she left, particularly as the emergency oxygen equipment appeared to be in an inappropriate location, accessible to too many staff. As they were unable to complete the audit fully because of Ms. Gronski’s departure, they called Ms. Ogilvie in Toronto for guidance. Ms. Gronski denies attempting to avoid showing them the oxygen equipment.

26I do not find the evidence sufficient to indicate that Ms. Gronski intentionally misled the auditors as the investigator concluded. There is no evidence that Ms. Gronski was spoken to about this any time before the investigation meeting, which was some nine months later, which creates a problem in terms of ability to recall the details of the conversation, both for Ms. Gronski and the auditors. One of them testified and could not recall a reference to the personal issue Ms. Gronski says caused the upset. Nonetheless, it is of great concern that Ms. Gronski left the situation, and apparently the institution, with no explanation or provision for the audit to continue in her absence.

f) Medication, charting and related errors

i) Methadone carries incident

27In mid-August 2012, Ms. Gronski assessed a patient who had just been admitted to the Detention Centre and was to be part of the methadone program. Methadone is a highly controlled substance, both because it can be lethal if administered in the wrong dose, and because it has a high street value. In the community, methadone patients will be required to have their intake of methadone witnessed, until they have built up enough reliability to be administered weekly “carries”, or doses they can take on their own without a witness. As the number of carries increases, the number of witnessed doses decreases, as does the direct evidence that the patient has actually taken the medication, rather than hoarding it or selling it. If a patient is not taking the methadone as prescribed, he or she can lose tolerance for it, so that if the prescribed dosage is given again, it can be a potentially lethal overdose.

28In the incident here in question, the inmate was admitted to the Detention Centre with two carries in his possession, which were identified on his admission form prior to his being sent to the Health Care Unit to be assessed. There is a form to be filled out by a nurse in this respect, which identifies the inmate’s regular dose and how it has been handled in the community. When Ms. Gronski assessed him, and after checking with the pharmacy that had been dispensing the methadone to him in the community, she indicated two carries on the form, together with the dosage, which was at the high end of the permitted range. The information on the form, which Ms. Gronski said would have come from the pharmacy, also showed that the inmate had been on methadone for 7 years, and was compliant, with no missed doses. It also indicated that the last dose of methadone was the day before, with a positive urine test indicating the inmate had recently taken methadone.

29This information was faxed to Dr. Overholt, according to regular procedure, on the basis of which he prescribed on an interim basis, until he actually met with the inmate. When he saw the inmate approximately 10 days later, the inmate told the doctor that he had in fact been receiving five, rather than two, carries prior to admission to the jail. The doctor found him stable, and continued the same dose as he had prescribed on an interim basis. Had the doctor initially been told the inmate had five carries, he would have substantially reduced the interim dose so as to reduce the chance of overdosing, until he had more direct experience with how reliable the inmate was. If the inmate had actually been consuming the carries as prescribed by the doctor in the community, and Dr. Overholt reduced the dosage upon admission, there would be withdrawal symptoms, but that is preferable to overdosing.

30Dr. Overholt testified that he felt lucky to see the inmate alive. Despite this, Dr. Overholt did not mention the incident to Ms. Gronski at any time, or note the discrepancy between the two and five carries other than to record on the patient chart that the inmate denied two carries. The doctor testified that he would have had a nurse confirm the five carries with the pharmacy or prescribing doctor. There is no documentation of this in evidence, nor is there any evidence that he or any staff who confirmed that the number should have been five carries filled out a medication improvement form, as other evidence indicated would have been the correct procedure for what was presented as a very serious error.

31Ms. Gronski was made aware of the incident for the first time during the investigation, approximately seven months later, at a point when, unsurprisingly, she had no memory of the details, as there are many patients on methadone in the detention centre. When shown the form she had filled out, Ms. Gronski testified that she assumed the inmate told her he had two carries, which was also the number he had with him when admitted. She testified that if he had said five carries, she would have inquired further as to where the extra three were, to reduce the chances that they would be misused. She said at times they have sent police to the inmate’s house to find missing carries, so no one else will take them.

32The information on the form filled out by Ms. Gronski indicates that the last carry dispensed was six days before the admission, which leads employer counsel to argue that even the arithmetic should have alerted Ms. Gronski to a problem with the number of carries, as two carries would not have been enough to cover the intervening five days, whereas five would have been. This is a valid point, which supports the idea that two was not the correct number of carries, and that Ms. Gronski did not notice this. But then it would appear that it was not noticeable enough that Dr. Overholt picked it up either, given that he prescribed as if the number of carries was two, without further inquiry, on the basis of the same information.

33In any event, I am not persuaded by the evidence, on a balance of probabilities, that it was Ms. Gronski who is responsible for the inaccuracy. The evidence before me does not provide a sufficient basis to determine with any confidence whether she received incorrect information which she recorded, or that she received correct information but recorded it incorrectly. It was not suggested that the records were unavailable to establish what the records of the community pharmacy or prescribing doctor showed prior to the date of admission. As noted, Dr. Overholt indicated he would have had a nurse check the actual number of carries at the time he saw the inmate, but any records of this were not in evidence.

34In all the circumstances, this incident remains very troubling, on a number of levels, but is not one that I find to be properly counted against Ms. Gronski, as other evidence could have further substantiated the issue one way or the other, and the matter was not brought to her attention at a time when it was fresh enough to make it more likely that she would be able to recall the important details of what occurred.

ii. Methotrexate recording error

35On September 27, 2012, medication records show that Ms. Gronski initialed an inmate’s Medication Administration Record, to indicate she had given Methotrexate when she had not. This was on a day when that particular medication, which was being given once a week for a skin condition, was not prescribed, but several daily medications were. It seems clear from the records in evidence that Ms. Gronski gave and charted three daily medications listed on the same sheet that were prescribed for that day, and kept going down the column for that date initialing opposite each medication, including on the line for the methotrexate that she did not give. It appears that Nancy Zuliani, another R.N. in the unit, noticed this a few days later, when the next dose was due, as she wrote on the form “states did not receive Sept. 27th”. Ms. Zuliani did not otherwise bring this to Ms. Gronski’s attention, but filled out an incident report with respect to this, several months later during the investigation in March 2013. Dr. Overholt testified that he was likely told about it in October, and confirmed with the inmate that he had not received it on September 27. This was not brought to Ms. Gronski’s attention until 5 months later during the investigation, but she acknowledged that the records indicate that she signed when the medication was not given. Had it been brought to her attention closer to the time, she could have indicated the correction on the record.

36During her evidence, Ms. Gronski was able to point out a number of recording errors other than her own, apparent on the record. This evidence is consistent with the fact of life that medication errors do happen. Nonetheless, as the case law sets out, nurses are held to a high standard in this regard, although not one of perfection.

37I find this to be a substantiated allegation of a medication charting error. Although it was not brought to Ms. Gronski’s attention in a timely manner, the records are clear enough that I do not find that she is prejudiced as their meaning does not depend on recollection.

iii) Methadone – failure to record

38On October 10, 2012, Ms. Gronski gave an inmate Methadone and did not record it on the Medication Administration Record. The fact that she gave it was documented on the record of daily issue, and could be verified by the count done at start and end of shift. Ms. Gronski testified that when such things happen, nurses often leave a note for the person who omitted signing, but that did not happen on this occasion. If it had been brought to her attention she could have corrected the omission. Nonetheless, it is not disputed that such an error, if not caught in time, is serious. In the worst case, it could have led to an overdose as it is possible that the fact that the dosage was unrecorded could have resulted in another nurse thinking the medication had not been given, and unknowingly giving it a second time. I find this allegation to be substantiated and current enough to be the proper basis for discipline, as what happened is clear from the records.

g) Assessment of a potentially suicidal inmate

39The procedure for admission of a person to the Detention Centre includes a requirement that correctional staff in the Admission and Discharge area (A and D) ask questions aimed at assessing the risk for suicide. Those who are deemed at such risk are not placed in the general population, but in the segregation area where they can be more closely observed. Once staff in A and D have received answers indicating a risk of suicide, the new inmate is referred to the health care staff for a professional assessment, which determines the placement. Part of the reason for the second level of assessment is that it is known that new inmates may have other reasons than true suicide risk to want to avoid placement in the general population, and are experienced enough to answer as if they are suicidal in order to avoid this default placement. The evidence also indicates that a large percentage of suicides in detention occur within the first hours and days of admission.

40On October 2, 2012, Ms. Gronski assessed a new inmate, who had been in custody the previous year. On the admission checklist form, which she had been provided, the A and D officer had recorded several indicators of risk for suicide and a proposed placement in protective custody. She made several entries on the required Health Assessment form, including that the inmate was crying and wanted to be in segregation, but did not indicate clearly whether her conclusion was that the inmate was suicidal or not, drawing an arrow between the choices of “yes” to indicate current suicidal ideation, and “no” for the contrary. She did not indicate anything in the area of the form calling for an indication by the nurse about whether the inmate was thinking about hurting himself, had such a plan, or had made previous attempts. This is despite the fact that the form from A and D had recorded a short time earlier that the new inmate was thinking of killing himself, and had tried in the past.

41In her evidence, Ms. Gronski indicated she would have asked the relevant questions, that the inmate must have been calming down and that he told her he was fearful of going into the general jail population, but that he was not really suicidal. Nonetheless, she was unable to remember why the boxes were not checked or any further details of the conversation with the inmate. As to the indications on the admission form, she indicated that inmates are often more upset in what she described as a sometimes chaotic atmosphere in A and D with people screaming, and no time or privacy to allow people to calm down, and for staff to get a clear idea in private. She said that in the calmer atmosphere of the Health Care Unit, she would often hear a different story, and could tell if there was a genuine suicide risk.

42The inmate was placed in the general population, presumably because there was no clear indication otherwise. There is no evidence to indicate whether the admitting officer clarified the matter with Ms. Gronski after her assessment. Dr. Overholt assessed the inmate five days later and noted the omission of a conclusion by the assessing nurse on the inmate’s chart. As Ms. Gronski signed the form, she was readily identifiable as the person doing the assessment, but he did not bring it to her attention, although he made the investigator aware of it a few months later. He was also concerned that he had not been called by Ms. Gronski to alert him of the suicide risk.

43As employer counsel submitted, it may be that Ms. Gronski asked the appropriate questions and made a sound assessment that the inmate did not need to be in segregation, but no one can tell from the record. Further, the form indicates uncertainty about the risk level, such that her indication that she would err on the side of caution does not appear to be what she did in this instance. Employer Counsel termed it lucky that the inmate did not make any attempt at self-harm in custody. Counsel for Ms. Gronski points out that it was so long ago that it is possible there was a conversation that no one remembers, clarifying the matter, and it was smoothed over at the time.

44Regardless of whether there was a conversation closer to the time, the undisputed record shows a very problematic ambiguity in Ms. Gronski’s charting of the nursing assessment. The purpose of the assessment by health care staff is to have a clear basis for the placement of the inmate. It appears that the placement of the inmate in the general population did not turn out to be dangerous, but the failure to indicate a clear assessment on which other staff could confidently rely is very troubling and a justified basis for discipline.

h) Ripping health care documentation

45On November 23, 2012, Superintendent Wilson called Ms. Gronski to his office and suspended her with pay, pending investigation. Deputy Superintendent Green was assigned to accompany her to gather her personal belongings and leave the detention centre. Ms. Gronski was very upset, and once in her office, ripped several documents and threw them in the recycling bin. Ms. Green told her to stop, and she did. Ms. Green’s view of the situation was that it was an attempt to get rid of documents that showed work deficiencies. The documents retrieved included many documents related to inmate health care which were years old. Ms. Gronski testified that she does not know why she ripped them, that she would never normally do such a thing, and she does not think she had control at the time. She said she did not pay attention to what she was ripping, that it was just paper in her eyes at the time. She suggested it might have been a result of her disbelief at being walked out after all she had given to the job, including many hours of free time and creating effective ties with community partners.

46Ms. Gronski’s counsel submitted that the evidence does not support that this was culpable misconduct or an effort to destroy documents or hide things as it was done in front of the Deputy Superintendent, and the documents were easily retrieved. Employer counsel replies that it must be considered culpable, that it is entirely unacceptable that a professional would act in such a manner when frustrated with the turn of events. It is also part of the employer’s case that this is part of a pattern of conduct that Ms. Gronski did not engage professionally with attempts to call her to account, as in the conduct with the audit in the spring of 2012 mentioned above, and conversations with Dr. Overholt where she left meetings or conversations when she did not like how they were going.

47It is not necessary to make a finding about whether the ripping of the documents was evidence of a larger historical pattern, and thus I have not catalogued the details of all the incidents referred to in evidence. It is sufficient to say that Ms. Gronski’s conduct on November 23 was obviously incompatible with the expectation that the employer could rely on her to take care of things even under difficult circumstances, which arise not infrequently in correctional institutions. It is said in her defence that it was not culpable conduct. However, there is no evidence that Ms. Gronski was suffering from some condition or disability which would relieve her of responsibility for her actions. It is understandable that she would be upset in the circumstances of being walked out of her job, but this does not justify her undisputed behavior. It is highly relevant to the assessment of the potential for reinstatement that the person in charge of the Health Care Unit lost control to this extent with no explanation or evidence as to how the employer could be confident that similar loss of control would not happen again if she were to be returned to work and new frustrating circumstances arose.

48I also find this incident to be relevant to the argument made by her counsel that there was no culminating incident which would justify the initiation of proceedings leading to dismissal, something referenced in particular in the City of Vancouver decision cited in the appendix. At the time she was suspended, the employer had not decided to discharge her, although the superintendent’s advice from Ms. Ogilvie, the Corporate Health Care Manager, was that it was not safe to leave Ms. Gronski in control of the Health Care Unit, in light of the new information from Dr. Overholt. Even without the new information, the ripping of the documents is certainly sufficient reason and appropriate occasion to look into whether a manager should be continued in employment, making it essentially a culminating incident.

Allegations of a more continuing nature

i) Medical Directives, Medical Order Sheets and Health Condition Lists

49Ms. Gronski acknowledges that she was behind in many of the administrative duties of the Health Care Manager. One element of these relates to procedural directives from the Corporate Health Care group in Toronto, which includes a review of medical directives, or standing doctor’s orders, at least every two years. Dr. Overholt was aware of the delay in dealing with these things, and tried in a number of ways to get Ms. Gronski to move them along. At the time the Medical Directives were updated in June 2012, on the eve of the audit of the Health Care Unit, they had not been updated for seven years. Dr. Overholt had earlier offered directives from another correctional facility as a model to be used, and reminded Ms. Gronski on a number of occasions, including three written reminders in the fall of 2011, the last of which was sent to the superintendent since the earlier ones had not been answered.

50The reminders also referred to overdue implementation of new Medical Order Sheets and Health Condition Lists, which were supposed to have been implemented not later than November 15, 2010. Ms. Gronski implemented them in March 2012, some 16 months late.

51The fact that the superintendent of the day knew of these longstanding issues for over a year before Ms. Gronski’s discharge calls into question their currency as a basis for discipline so much later. Nonetheless, they are properly considered as part of the context of the employment relationship. This is particularly so as the reminders she was given are examples of the kind of inter-professional reminding that Ms. Gronski preferred, and found lacking in regard to other instances. Although it was her preferred method of direction, it is undisputed that Ms. Gronski was not able to respond to the reminders in a timely manner, which she attributes to the staffing situation, which will be addressed below.

j) Record Keeping: Narcotic count discrepancies, failure to maintain reserve counts, filing of inmate health care information

52The week after Ms. Gronski’s suspension, a narcotic audit was performed by a Program Adviser from Corporate Health Services together with an Operational Manager. Eleven discrepancies were noted, meaning that the actual count of the narcotic supply did not accord with the previously recorded amount. As well, the records indicated that the tracking of the reserve supply of drugs, from which the nurse manager issues drugs to other nursing staff for regular medication administration, was not maintained consistently. Ms. Gronski testified that sometimes an R.N. would need a medication quickly and she would make a note of it to remind herself to record it but sometimes did not do so. A related example is that reserve sheets were not found with expired oxycontin, as they should have been. Ms. Gronski acknowledged these deficiencies, saying that she was planning to look after it all the night she was suspended. It is understandable that Ms. Gronski did not remember the specifics of some these issues, such as the oxycontin reserve sheet, when spoken to by the investigator some four months after her departure. Nonetheless, there is no evidence that the employer knew of the specific problems with the control and documentation of medications, including narcotics, prior to her suspension.

53As well, the evidence of the informality of recording the dispensing of medication from the reserve room is very troubling, especially since it is one of the roles of the nurse manager to mentor and supervise others in respect of charting and control of narcotics.

54There was a dispute in the evidence of Ms. Gronski and Ms. Zuliani as to whether a separate recording sheet needed to be started and placed in the reserve room when a quantity of the narcotic analgesic oxycontin had been removed for waste. In the overall scheme of things, the matter of whether a new form was needed is a minor issue, which is not of consequence in the determination of this case. The more important issue here is the overall lack of control and consistency, which lead to senior management’s loss of confidence in the safety of the situation under Ms. Gronski’s leadership.

55Another related issue is that filing of inmate health care information was not adequately kept up. Multiple pieces of inmate health forms and information were found in Ms. Gronski’s office after her departure, rather than in the individual health file where they belonged. Ms. Gronski told the investigator that some of it was in her office as she had talked to the public health department about concerns about lack of information that she would have preferred public health provide for tracking purposes. Nonetheless, it was not disputed that it was required that inmate health files be kept up to date, especially as the health file goes with the inmate when they are moved from one correctional facility to the next, as is frequently the case. As there are multiple health professionals making decisions on the basis of the information in the file even within one Health Care Unit, currency and completeness of health information accessible to all with access to the file is obviously very important. There are confidentiality concerns as well, because the material was lying out unsecured except for the door lock, and potentially visible to others with access to the room, such as cleaners and security officers. This was one of the many issues Ms. Gronski acknowledges, but explained as a result of lack of time, principally because of the hours she was working as an R.N.

56Although some delay in filing may be expected in a busy unit, some of the documents were several years old, which goes well beyond the acceptable level.

k) Failure to secure or dispose of expired medications

57After Ms. Gronski’s departure in November 2012, several outdated medications, with expiry dates from 2010 and 2011, were found out on the table in the reserve room, when they should have been double locked. Ms. Collier, who did the first audit after Ms. Gronski’s departure, did not recall seeing them there. Further, Ms. Gronski told the investigator that she did not take them out of the cupboard, and that perhaps the other nurse who had been helping out in the reserve room would know how they got there. Exactly how and when they got there, and why they were not secured better by staff after Ms. Gronski’s departure, are matters not resolved by the evidence. However, the existence of long expired medication in the reserve room is further evidence of serious systemic issues in the consistency of practice in regards to the reserve room, for which Ms. Gronski was directly responsible as manager of the Health Care Unit. The reserve room is an area normally reserved to the health care manager, so that, unless Ms. Gronski alerted her superiors to issues in this respect, it is unclear how they would know, except through an external audit. Although there was an external audit in June 2012, the nurse-auditor who testified could not recall if they had looked at the reserve room at that time. In any event, even if no issues were found in June 2012, there is no dispute that there were important discrepancies in the reserve room in November, for which Ms. Gronski was responsible as Nurse Manager.

l) Issues in regard to Corporate Health Care: Medication Improvement and Infection Prevention and Control Reports, Failure to attend teleconferences

58Medication Improvement Reports are forms that are to be filled out when medication errors are discovered. It is expected that they will be sent to the nurse manager and to the superintendent, as well as to the Corporate Heath Care office, so that there is awareness and tracking of errors and whether there are patterns that could benefit by a more systemic solution. There is to be a timely conversation with the staff involved to discuss how the error occurred, and what might prevent similar errors in the future.

59In the five years prior to her suspension, Ms. Gronski had sent no Medication Improvement Reports to the corporate office, as was her duty. Many of them, as much as five years old, had accumulated in her office, awaiting attention. They were one of many things that she had not attended to because she was working long hours as an R.N. Ms. Gronski told the investigator that she had a pile of them in her office “ready to go”. That may be, but it is clear that many of those in her office were so old that the moment had long passed for a conversation with the staff involved at a time when the staff might remember the details, or for there to be much potential that the error could be corrected at a time relevant to the care of the inmate concerned. Although systemic issues might still be revealed by an examination of older errors, any needed improvements would be correspondingly delayed.

60Although Ms. Ogilvie raised this issue with the investigator, and had access to the tracking of submissions throughout, she had not spoken to Ms. Gronski about it despite the lengthy time with no submissions of reports, and the fact that it is very unlikely that there had been no errors at all during such a long period of time.

61Similarly, Infection Prevention and Control Reports are to be submitted monthly to Corporate Health care, and Ms. Gronski had submitted none for five years. These forms, introduced in the wake of the SARS outbreak in 2003, are important for tracking infections and controlling their spread. There is no evidence of effective follow-up about this, despite this longstanding failure to submit the forms, even though the expectation is that a “nil” report will be filed if there are no infections to be reported that month. The only follow-up indicated in the evidence was that Ms. Ogilvie said that her assistant would have sent

e-mail reminders. There is no evidence of any timely consequences for failure to respond.

62Another issue related to the expectation that all health care managers participate in regional teleconferences, at which Ms. Gronski’s attendance appears to have been spotty. Her explanation, as with most of the issues, is that she was working too many hours as an R.N. However, her uncontradicted evidence was that she was never spoken to about this in a way that would have indicated that there was dissatisfaction with this, even though she occasionally asked Ms. Ogilvie about what she had missed.

m) Methadone disposal build-up

63Like everything else to do with methadone, its disposal is highly controlled. Suppliers deliver a week’s worth of methadone to the Detention Centre at a time, and anything unused is to be wasted. As there are a large number of inmates on methadone, and the turnover due to transfer and release of inmates is significant, it is expected that there will be wastage, which is intended to be cleared weekly. During the investigation, 493 bottles of methadone were found in the reserve room of the Health Care Unit, which represents, by Ms. Gronski’s estimate, a couple of months’ worth. The general concern raised by this fact relates to the risk of misappropriation, by inmates or staff, as it is lethal in the wrong dose, and has a very high street value. The risk was not just theoretical at the detention centre, as earlier in Ms. Gronski’s tenure, an R.N. working there had taken some methadone for her own use. Ms. Gronski acknowledged that it was dangerous for the methadone to be left out, and that the length of time that the methadone had been left undisposed of significantly exceeded the appropriate time line.

64Ms. Gronski’s Counsel submitted that her testimony showed that she had a well-developed and strict method of disposing of methadone, which she learned from her predecessor in 2005. She would do the requisite count and documentation with another nurse, box up the methadone to be wasted, and take it to the pharmacy in a Ministry vehicle. The pharmacy had an arrangement with someone to pick it up and dispose of it safely. To increase security and her safety, Ms. Gronski arranged for an Operational Manager to go with her to return the methadone, which was one of the reasons she gave for the build-up, as there was not always someone available to go with her when the left-over methadone was ready. As well, Ms. Gronski testified that she was working so many hours as an R.N. that she did not have time to take the methadone to the pharmacy.

65There were also issues with the pharmacy which supplied the methadone, concerning space for the volume of used methadone generated by the detention centre. There was a change of vendors at some point as well. The new vendor would not take the left-overs from the previous vendor’s time as contractor, which may also have contributed to the build-up. When the change took place was not clear, but the current preferred practice, which is that the pharmacy picks up the unused methadone at the time of the weekly delivery of fresh methadone, was not in place when Ms. Gronski was suspended.

66Methadone is supposed to be double locked, meaning in a locked cupboard inside a locked room, carefully tracked and counted. Ms. Gronski testified that she had pulled the expired methadone out of the cupboard to package it up earlier in the afternoon of the day she was suspended, and then was called away to an emergency situation. She testified that she had every intention of coming back to finish boxing it up, and get caught up on other medication issues, but she was called down to the Superintendent’s office before she had time to do that. The employer’s witnesses were very critical of the fact that the waste methadone was not properly secured, and was in bags on the floor. Ms. Gronski testified at one point that she did not leave it on the floor, and there is a gap in time of at least a week between her departure, and when other personnel started dealing with the state of the Health Care Unit’s medications, so that it is not entirely clear how the expired methadone came to be in the state it was found in the reserve room in early December. However, I find that particular detail to be less important than the main point: the methadone needing disposal had been allowed to build up for months, and at least for several hours on her last day of work, Ms. Gronski had left it out not properly double locked, albeit behind a locked door.

67The evidence is that some of the methadone was disposed of in December, 2012 and some in January, 2013, meaning that six weeks passed after Ms. Gronski’s departure before the situation was fully rectified, leading her counsel to query how it was thought appropriate to leave it there, and why it was not secured or disposed of immediately, if it was so serious to have it out. Employer counsel replies that there were many issues to be dealt with given the state of the Health Care Unit, and that the staff who had to deal with it prioritized issues. The time-consuming process of wasting the methadone safely by hand was started in December, but could not be finished until January.

68It is certainly curious that the situation was not rectified more quickly, at least to the point of further securing the large quantity of methadone until qualified staff could be assigned to dispose of it properly, and it may be an indication that some involved did not see the issue as seriously as the investigator and the Superintendent. Nonetheless, the undisputed evidence convinces me that methadone is lethal in the wrong hands and that the way it had been left by Ms. Gronski, both as to quantity of build-up and security, was seriously unacceptable. There is no evidence that management knew of the build-up and security issue prior to the investigation, or to suggest that Ms. Gronski had communicated to her superiors that she needed them to assist with a solution to remove the methadone in a timely manner. Thus, I am of the view that this was a proper basis for discipline.

n) Checking emergency equipment and oxygen supplies

69There are supposed to be weekly checks on emergency equipment and oxygen supplies, documented so that other staff know they are up to date. Ms. Gronski said that she was keeping up these checks, but there is no available documentation of this between 2009 and her departure in late 2012, although she said she had noted some on the computer. She had arranged for another nurse to do them at one point, but when that person left the workplace in 2010, there was no further follow-up about this issue.

70Other equipment such as eyewash stations are to be checked monthly, as well, as they are important to have available, if, for instance, a confrontation with an inmate results in unwanted substances in a guard’s eye. Ms. Gronski’s response is similar to the above, that she did did the checks, but they were not recorded in the binder. As well, she had purchased some new eyewash stations to replace worn ones, but they had not all been installed due to time worked as a R.N., and what she saw as senior management’s lack of help with the staffing issue. One particular eyewash station, which had not been properly maintained for a lengthy period, became the focus of an allegation during the investigation. Her counsel points out that this station was in plain sight so that anyone could have easily pointed it out, but no one thought it serious enough to do so, until Ms. Zuliani showed it to the investigator.

o) Financial accountability issues

71Ms. Gronski acknowledges that she should have been purchasing oxygen cylinders and related equipment, rather than renting it, as well as controlling drug inventory costs better, by purchasing from the vendor of record, rather than the local pharmacy. She attributes these issues to being behind in everything, as well as the fact that not all the doctors were cooperative in prescribing from the list available from the vendor of record.

72In a related issue, it is alleged that Ms. Gronski failed to accept assistance offered by Corporate Health Care in order to set up a proper inventory management system and procurement of medications from a wholesaler. It is her position that she did not refuse, but that she had not found a good time to schedule it yet, given that she was working 80 to 90 hours a week.

p) Scheduling issues

73Ms. Gronski is alleged to have not used the required scheduling software, known as HPRO, consistently or correctly. She does not deny this, but says that she did not have proper training or consistent support in using it, as well as that the responsibility for using it was taken away, and then given back on a number of occasions, and that it was difficult to use consistently when she was working so many hours as an R.N. Although, as her counsel argued, there were no grievances in evidence from bargaining unit nurses about scheduling, this does not minimize the increased potential for them if the software is not being used. I find it to be a substantiated issue, which had been dealt with as recently as November 14 by Deputy Jones, confirming in writing that he would be monitoring the use of HPRO, and that it was Ms. Gronski’s duty to monitor and fill R.N. staff shortages. Although this letter indicates that the employer was not at the point of formally disciplining Ms. Gronski for her inconsistency with HPRO, it remains part of the narrative of current expressions of concern about performance.

q) Other issues

74There were some allegations which were not made out on the evidence in sufficient detail to rely upon. These include Dr. Overholt’s allegation that for years he had not felt comfortable relying on Ms. Gronski’s assessments of inmates communicated on the phone, so that he had been relying on other nurses’ assessments to mitigate this problem. There is evidence of the instances of the assessments of specific inmates in regard to suicide risk and methadone carries discussed above, which fall into this category. However, there is no evidence that the doctor or any of the nurses involved ever mentioned these or a more general issue to Ms. Gronski, as one would have expected if it was an ongoing safety issue. As well, there are no other specifics for the Board to assess, or for Ms. Gronski to respond to, so that I am not prepared to make a finding against Ms. Gronski of such a general nature.

75Another allegation which lacks specifics is the investigator’s finding that Ms. Gronski contravened the Statement of Ethnical Principles when she admitted to discussing Dr. Overholt’s physician contract in a joking manner. The context is that Ms. Gronski had become aware that the contract for physicians’ services in the methadone program was of interest to at least one other potential contractor in the community. Ms. Gronski’s evidence was that she thought Dr. Overholt would like to know, and acknowledges mentioning it to him when other potential providers inquired of her. She said Dr. Overholt would laugh, but never indicated he did not want to know or that he thought it was a threat as he testified. Dr. Overholt’s evidence was that he took her comments as a nuanced threat, presumably that she would influence his losing the contract, but he gave no specifics of date or content for these conversations.

76Counsel for the employer submitted that contracts with the Crown are not something to be joked about, in reference to the investigator’s finding that Ms. Gronski had admitted talking jokingly. In my view, whether joking about things such as a contract is appropriate or not entirely depends on the circumstances at the time and the quality of the relationship between the participants in the conversation. Although I was urged to prefer Dr. Overholt’s evidence over Ms. Gronski’s, I do not find I have a sufficient basis to do so, as Dr. Overholt focused on how he took the comments, and did not give enough specifics for me to even determine if their recollections of the conversations, perhaps years old, were consistent with each other. In the circumstances, I am unable to find on the evidence that Ms. Gronski did anything inappropriate in this instance.

Further context

77Important to Ms. Gronski’s complaint is the idea that the work environment in the health unit had been toxic for a long time, basically sapping her ability to do her job well, and that the unit was seriously understaffed. It is clear that there were very longstanding issues. A report of a consultant in 2004, before Ms. Gronski arrived, noted the group as very difficult to manage and predicted that it would become toxic if action was not taken. I accept employer counsel’s submission that this and other reports, which were not the subject of oral evidence by the author, are hearsay. Nonetheless, the report of the consultant, commissioned by the employer, is admissible hearsay, at least for the fact of the report’s findings. Further, I find it of a sufficiently reliable sort to corroborate Ms. Gronski’s uncontradicted evidence that there was a history of problems in the Health Care Unit that were not of her making, which she inherited when she took on the job in 2005.

78In 2009, Ms. Gronski was the respondent in a complaint under the Workplace Discrimination and Harassment Prevention Policy (WDHP). The complainant, a bargaining unit nurse, alleged that Ms. Gronski had treated her improperly in a scheduling matter by reason of the bargaining unit nurse’s spousal relationship with a Correctional Officer. Ms. Gronski took the occasion of the investigation into this complaint to chronicle the difficult working environment. Ms. Gronski noted that the fact-finding process was in its seventh month, and that it had taken its toll on her physical and mental health. She wrote that her hands were tied as manager as two problematic nurses went behind her back to complain to other managers, refusing to follow the chain of command, and being enabled to do so by others not referring them back to her. I make no findings of fact about these issues, other than that this was a formal, direct instance of Ms. Gronski’s reporting the extent of the problems in the Health Care Unit over three years before she was suspended. Sounding a theme that echoes throughout this case, Ms. Gronski ended her submission with the statement that she needed the “ongoing support (not control)” of the management team. The outcome of the 2009 investigation is not in evidence, and Ms. Gronski said she never received any information about how it was resolved, as required by the WDHP policy.

79On November 3, 2009, then Acting Superintendent Brlek gave Ms. Gronski a letter of expectations dealing with several issues, many of which were still ongoing in the fall of 2012, including taking direction from her supervisors, meeting deadlines for inventory and reports, medication counts, and fiscal responsibility. It was noted that she had been directed in May 2009 not to work overtime as a Registered Nurse without prior approval from a senior manager. As well, the letter notes that, due to her lack of initiative in regards to hiring staff, the lead for an RN competition had to be assigned to another manager. She was also criticized for being late in submitting her weekly attendance reports and leaving work on a number of occasions without speaking to her supervisor.

80In February 2010, Ms. Gronski was formally reprimanded for failing to provide an inventory of personal protective equipment and supplies and for failing to direct one of her subordinates to submit an occurrence report detailing her failure to report for duty, both contrary to directions in July, 2009. To the extent that inventory may be considered a mundane matter, I note that one of the reasons for heightened attention to inventory in a correctional facility is illustrated by an occurrence report in 2009 by an Operational Manager involved in an inventory of the Health Care Unit supplies, which notes as background that scalpels had gone missing a few months earlier. This is obviously of great concern for security in a correctional setting, where anything that can be used as a weapon can be very dangerous in the wrong hands. Further, the evidence showed that the issue of inventory control in the Health Care Unit has been of concern to the union health and safety committee for related reasons.

81In March 2011, Ms. Gronski sent Deputy Superintendent McTrach an e-mail referring to a poisoned work environment and bad behavior of one employee, but with no other specifics. In late June 2011, Ms. Gronski wrote a letter to then Acting Superintendent McTrach, copying the acting Deputy of Administration and Superintendent Neville, referring to the Health Care Unit as having been a toxic, poisoned, work environment for many years, and alerting senior management to the escalation of the scenario. She noted that a number of staff had left the workplace in a distraught state. Further, she noted that another R.N. worked 14 hours and that she herself worked 29 hours that weekend to cover. She referred to it as “an unsafe environment” and a “dangerous situation”. She noted the bullying behavior of one nurse, and its effect on retention of new staff.

82About six months later, in late 2011, Deputy Regional Director Barry McDonnell engaged Ms. Green, to do an investigation of a management-initiated WDHP complaint about the central person named by Ms. Gronski as doing the bullying. This was prior to Ms. Green’s taking up her post as Deputy Superintendent at Niagara, when she was working at another correctional facility. Ms. Green’s investigation did not include an interview with Ms. Gronski, who was off on sick leave for two months, which appear to have coincided with the interviews conducted by Ms. Green. Nonetheless, Ms. Green wrote in her report, issued in early April 2012, that the situation was “easily described as toxic”. The nurse in question was found to have openly and pervasively acted unprofessionally towards her peers and Ms. Gronski, including repeated remarks referring to her with derogatory terms, questioning Ms. Gronski’s competence and leadership abilities. This was despite formal and informal attempts to call the bargaining unit nurse to account. The behavior of this nurse was found to have directly contributed to difficulties integrating and retaining new nurses in the Health Care Unit. It is not clear from the evidence exactly when this nurse last worked in the Health Care Unit, but it appears to have been between the release of Ms. Green’s report in April 2012 and August 2012, when a competition to hire new nurses closed. Ms. Gronski said she agreed wholeheartedly with Ms. Green’s report, but believed it came too late.

83The staffing issues in the Health Care Unit were also long-standing. The unit is funded for seven full-time nurses, but, at the time of Ms. Gronski’s suspension, it had been operating below that complement for a long time. The evidence indicates that, through much of Ms. Gronski’s tenure, the unit was short at least three full-time nurses. In addition, at various points in the period spanned by the evidence, more than one full-time nurse was off on leave, including stress leave, which Ms. Gronski attributes to the toxic work environment. As inmate care must continue, the gap was filled by part-time and agency nurses, and most significantly for our purposes, by a great deal of time worked as an R.N. by Ms. Gronski, to the detriment of her duties as manager.

84There were also varying levels of disagreement and mutual allegations of non-cooperation in hiring staff between Ms. Gronski and senior management, dating back to 2007. This issue was not part of the allegations which formed the basis for the dismissal, but its role in the sequence of events that lead to the dismissal is nonetheless important to the context.

85In early November 2012, a number of issues had come to a head between Ms. Gronski and senior management. These included a difference of opinion over how the hiring process for new nurses should be handled, together with how a valued retired nurse could be rehired at the same time. The competition for the new nurses had closed in August, and Ms. Gronski had been tasked with setting up interviews. By early November, she had not done so, partly because she was adamant that the retired nurse should be hired, despite the fact that the latter was not properly part of the competition, according to Ministry Human Resources policy. As well, she said she was studying and researching the applicants, so as to build the best possible team so the Health Care Unit could continue to recover from the difficult period working with the nurse who had been bullying others.

86Other issues included a disagreement between Ms. Gronski and non-nursing management over the supervision of a nursing student while giving medication to inmates, the outstanding reports of the nursing audit of the two institutions that Ms. Gronski was responsible for, as well as delay in handing in reports of her own attendance.

87Part of the context here is that the fall of 2012 was a time of change in the senior management team at the Detention Centre. Deputy Superintendent Green, who had done the investigation in the Health Care Unit the previous winter/spring before coming to Niagara Detention Centre, had started in September, and Superintendent Wilson replaced Superintendent Neville in early November. Also, early in November, Ms. Green and the other Deputy Superintendent, Tracy Jones, who was Ms. Gronski’s direct supervisor, held a meeting with her concerning the above issues.

88The upshot of the meeting was a letter from Deputy Superintendent Jones, dated November 14, 2012, which I will characterize as a letter of expectations, direction and warning. It stated clearly that Ms. Gronski was not to perform work of the R.N. staff without the prior approval of one of the Deputy Superintendents, in order to allow them to review other available resources for covering the work. They discussed support mechanisms to assist her in improving her workload and to ensure that work assigned to her was processed in a timely manner and deadlines could be met. The letter notes that moving forward with the competition for new nurses would allow her to complete outstanding tasks. However, it states that due to Ms. Gronski’s refusal to participate in the hiring panel, she was being replaced on the selection panel, which I take as a serious expression of loss of confidence. She was directed to improve her focus on her role as department head, as well as her communications between her department and senior staff. It is clear that the tone was one of warning, but there is no explicit mention of its being disciplinary, or any indication that she was days away from being relieved of her duties pending investigation.

89What changed the picture presented in that letter is that, on November 11, Dr. Overholt approached Deputy Green with a number of concerns relating to Ms. Gronski’s performance, which were mostly new to senior management, although none was more recent than a month old. This lead to a meeting on November 23, with the doctor, new superintendent Wilson, and Linda Ogilvie from Corporate Health Care. Ms. Gronski was suspended with pay the same afternoon, on the basis of the combination of concerns presented by Dr. Overholt and advice of Ms. Ogilvie.

Considerations and Conclusions

90With that background, I turn to the question as to whether the employer’s decision to discharge for cause should be upheld. I have carefully considered all the case law provided by counsel. Although none of those authorities deal with facts similar to those before me, they set out the principles to be applied, which can be briefly summarized: a higher standard is expected of both health care professionals and managerial employees than other employees. Nonetheless, unless the misconduct or deficient performance is so serious as to justify summary dismissal, such employees are entitled to notice of the employer’s dissatisfaction and a chance to improve. Progressive discipline is the usual mechanism for achieving this end, but what is sufficient notice of the employer’s dissatisfaction depends on the facts of each case. As well, if the employer has condoned the conduct in issue, or unreasonably delayed in imposing discipline, the employer is generally not permitted to rely on it as the basis for summary dismissal. Further, as discussed by the Supreme Court of Canada in McKinley, cited in the appendix to this decision, the entire context of the employment of the person in question is to be considered in order to determine whether summary dismissal is proportional to the misconduct in question.

91There is no dispute in this case that the Health Care Unit had been in a lamentable state, and that Ms. Gronski was seriously behind in her administrative duties in the fall of 2012. There was some discussion in argument as to whether the deficiencies in performance established in evidence should be considered culpable or not. Counsel for Ms. Gronski argued that either way, an employee is entitled to notice that one’s employment is in jeopardy and an opportunity to improve. Employer counsel argued that there was no evidence sufficient to establish that Ms. Gronski’s behavior was not culpable misconduct. As there is no evidence that Ms. Gronski was subject to a condition or disability that relieved her of being responsible for her actions, I have treated the situation as one in which she is responsible for the deficiencies noted as substantiated above. Nonetheless, as discussed below, I am also of the view that responsibility for the situation is shared.

92Counsel for Ms. Gronski argued that the employer’s handling of the difficult circumstances in the Health Care Unit and delay in discipline amounted to acquiescence in the situation in which Ms. Gronski was doing the best she could for years with the toxic, understaffed situation, to the point that it was effectively condonation, and reason to find that the discharge was not justified. I have carefully considered whether all the circumstances of this case justify an inference of condonation.

93The evidence of the arc of Ms. Gronski’s employment relationship shows that senior management was aware of many of the issues affecting the Health Care Unit throughout her period of employment. There were intermittent attempts to change certain aspects of her practice as manager, most clearly in 2007 and in 2009, leading up to the letter of reprimand in 2010. Whether the employer considered things had improved or not, no further formal action was taken in regards to Ms. Gronski’s performance until 2012. There was some general reference in Superintendent Wilson’s evidence to attempts by former superintendents which had been unsuccessful, but the only specifics before me are those described above. As well, the management-initiated WDHP complaint in late 2011 was an initiative dealing with some of the longstanding issues concerning the working environment of the Health Care Unit, but Ms. Gronski’s performance was not dealt with by that report.

94It is clear from Deputy Jones’ letter of November 14, 2012, that he was attempting to formally “pull in the reins” in regards to several important issues, but it is also clear that he was not at the point of threatening discharge. The thrust of the letter was that Ms. Gronski’s loss of focus on the leadership of the department involved in working excessive hours as an R.N., with its attendant effects on outstanding tasks, had to improve, and was no longer going to be tolerated. I find that the letter effectively deals with past deficiencies of the administrative variety by giving her time to catch up on administrative tasks and improve her communication with senior management. Ms. Gronski’s evidence indicated that she was aware that the way she had been working from the spring through the fall of 2012 was unsustainable. Nonetheless, her evidence was to the effect that things were improving in the Health Care Unit with the departure of two very negative staff, and that she was looking forward to rebuilding the nursing team in a healthier work environment with new hires and getting caught up.

95The history of the Health Care Unit, and the lack of evidence of prompt attention given to many of its problems by senior management makes condonation a useful analytical framework. Nonetheless, as Arbitrator Bendel put it in the University of Ottawa decision, cited in the appendix, condonation requires knowledge of facts that, if true, warrant discipline. What prevents this case from being resolved in Ms. Gronski’s favour on the basis of condonation is the fact that, after the meeting which lead to the above letter, senior management learned of elements of Ms. Gronski’s performance directly related to care of inmates and security of narcotics and methadone, of which there is no evidence that they had previously been aware. The fact that Dr. Overholt did not raise the serious issues of which he was aware sooner, either with Ms. Gronski directly or with senior management, lamentable and largely unexplained though it is, was not argued to bind the employer in terms of condonation. And, as employer counsel argued, the employer was “not sitting on her shoulder”, as it was her job to manage the Health Care Unit, and make senior management aware of issues. Where the delay in this respect was sufficient to inherently prejudice Ms. Gronski in defending herself, it has been noted above as affecting the weight or use of some of the incidents in question. In any event, Ms. Gronski’s actions on the day of her suspension in ripping up health care documentation was a current incident, which added a significant additional concern relating to her reliability under pressure, and her ability to act in a manner which showed appreciation of the necessity for the employer to investigate the concerns raised in light of its responsibility for inmate care.

96The administrative matters dealt with in Mr. Jones’ letter of November 14 are all ones that were readily apparent to senior management because of the personnel and/or cost implications. Among the ones that the employer became aware of for the first time after that are several that they would not have known about if Ms. Gronski or other healthcare professionals did not make them aware. These include several serious ones that I have found to be substantiated by the evidence. There is the state of the narcotics records with several discrepancies and the inconsistencies in medication reserve counts which seemed to be a result of Ms. Gronski’s haphazard method of documenting medications which she removed from the reserve room into the general medication supply. As well, there is the build-up of methadone waiting for disposal and the unexplained presence of long expired medications in the reserve room. Further, there is the disarray in Ms. Gronski’s office, indicating longstanding failure to keep inmate healthcare records current, rather than just lack of tidiness. These represent chronic deficiencies in important duties directly within Ms. Gronski’s responsibility as manager of the Health Care Unit. It is not disputed that it is the duty of the manager of the Health Care Unit to make sure that the procedures for drug and narcotic controls are followed and to oversee the administrative structure that supports quality healthcare for the inmates. As the senior health care employee in the Detention Centre, it was Ms. Gronski’s responsibility to keep senior management apprised of problems in this respect and to ensure that her subordinates followed proper procedure.

97There are specific incidents of problems with Ms. Gronski’s performance while acting as an R.N. as well, of which the employer was unaware until after the meeting which lead to the November 14, 2012 letter. This category includes the charting of Methotrexate as given, as well as the ambiguous reporting of the assessment of the potentially suicidal inmate in October 2012. Although these are not as directly related to the core of the manager’s job, they are errors of a kind that support a finding that reliability in the areas of assessment and medication documentation fell below required standards. The evidence makes clear that Ms. Gronski was fully aware of those standards and responsible for enforcing them within the Health care unit.

98There are other issues that are substantiated and were known to Corporate Health Care from the results of the audit in June 2012 as well as its ongoing tracking of reporting, but perhaps not specifically to senior management at the Detention Centre. These include the unrecorded checks of safety equipment and oxygen supplies, problems with updating medical directives and submitting medication improvement and infection control reports, and failure to purchase from the vendors of record who provide favourable pricing. These are difficult to categorize in terms of condonation, since the corporate health care staff is not directly responsible for supervision of health care employees, but do play an important role in alerting senior correctional management to health care practice issues. Although these issues would not likely provide justification for discharge, given they were tolerated for a long period of time, they are part of the context bearing on the question of whether the employment relationship is salvageable.

99The approach to the issue of just cause articulated by the Supreme Court of Canada in McKinley, cited in the appendix, requires a contextual analytical framework that examines each case on its own particular facts and surrounding circumstances and considers the nature and seriousness of the conduct for which the person has been discharged, in order to assess whether it is reconcilable with sustaining the employment relationship. If it is, then dismissal may be found to be a disproportionate response. If not, then there is just cause for dismissal. Where there is just cause, the law does not require the employer to provide compensation for losses or pay in lieu of notice. Nonetheless, dismissal without claiming cause, but with notice, remains an option for this employer for excluded employees, as noted in Dyson, cited in the appendix.

100As to the managerial duties, Ms. Gronski’s main defence is that she was working so many hours as an R.N. that she could not keep up with them. Employer counsel characterized her working so much as an R. N. as evidence that she was incapable of managing the unit, and supportive of just cause. Ms. Gronski’s counsel referred to it as part of the problems stemming from the toxic working environment, which caused serious problems in retaining nurses, and Ms. Gronski’s often working 16 to 18 hour days. The evidence is very persuasive that working excessive hours as an R.N. negatively impacted Ms. Gronski’s work as a manager. The question is how that should be viewed in the balance of whether there was just cause for summary dismissal.

101In deciding to terminate for cause, Superintendent Wilson took into account that there were opportunities to hire other nursing staff which would have prevented the situation, and that subsequent to her departure, new staff were hired in short order, so that the current health care manager, with very similar resources and staff complement as were available to Ms. Gronski, has not had to work as a nurse. He concluded that in respect of staffing, Ms. Gronski was the “author of her own misfortune”. Her counsel submitted that this amounts to firing her for grounds that were not in the discharge letter. It is true that failure to hire staff is not one of the grounds for discharge. However, the idea that understaffing lead to her working so many hours as an R. N. was Ms. Gronski’s main defence, during the investigation and at the hearing, so it is an entirely relevant consideration as part of the context. The evidence is persuasive that it was reasonable for the superintendent to look at the fact that the current manager of the Health Care Unit has been able to staff the unit with the same resources without resorting to working as an R.N. except in an infrequent emergency. There is no evidence before me to suggest that this is an unfair comparison, or that the resources were not approximately the same as when Ms. Gronski was in charge.

102Ms. Gronski testified at one point that she begged for more staff, with the implication that senior management was not forthcoming. The written record indicates that several of her supervisors held the contrasting view that she was the one largely responsible for the delays in hiring permanent staff or securing staff through other means. There is also evidence in the material that at times Ms. Gronski wanted more assistance from senior management concerning hiring, and at other times wanted to be left alone to run the competitions as she saw fit. Nonetheless, beyond the above comparison with the period after Ms. Gronski left, neither party attempted to explore the details of the shared responsibility for hiring, or the merits of Ms. Gronski’s stand in 2009 and 2012, when she disagreed with the approach of her superiors to hiring and was replaced on the hiring panels so that hiring could go forward.

103Ms. Gronski’s counsel submitted that senior management condoned her working excessive amounts of largely unpaid overtime. It is clear that senior management knew about the issue. For instance, the record indicates that Ms. Gronski was directed to stop working as a nurse in 2009. In order to find condonation. I would have to find, not only that the employer knew how many hours she was working as a nurse, which is not in dispute, but that it is responsible for the delay in finding a solution that would have left Ms. Gronski freer to attend to the managerial duties of her job. To the extent the evidence dealt with the responsibility, it is clear that it was shared. Nonetheless, it is insufficient for me to find that the proportion of responsibility of the employer was so predominant that it justifies the deficiencies in Ms. Gronski’s performance.

104In this regard, the evidence for the period between 2005 and 2012 is too general to establish that senior management was responsible for the delay in hiring. In respect of the more recent instance in 2012, of which there is clearer evidence, Ms. Gronski took from August to November to study resumes before arranging interviews. Taking this long had the predictable result that several of the candidates had found other work in the interim. It is true that management played a part in this delay by not insisting on a result sooner, but it is also true that it was primarily Ms. Gronski’s responsibility as Health Care Manager to look after the hiring. As well, there is evidence that Ms. Gronski was maintaining that hiring should not proceed without including the retired nurse she wished to hire, despite the assertion in the written materials, which was not contradicted in evidence, that this nurse was not properly included in the competition. Much of the evidence about the delays in hiring supports the overall impression that Ms. Gronski was unable to fulfill her duty as manager to act to alleviate the staffing shortage in a more effective way than assigning herself to work as an R.N. Altogether, the evidence is not persuasive that the employer created or condoned the problematic staffing situation to an extent that would relieve Ms. Gronski of responsibility for the other shortcomings which have been established.

105There is also the element of the seriously difficult working environment in the Health Care Unit which occasioned Ms. Green’s report in April 2012, and its conclusions that the atmosphere was easily described as toxic. In the end, it was not argued that the documented fact that Ms. Gronski was the target of serious undermining from one of her subordinates justified the substantiated incidents dealt with above, although her counsel submitted that it was an impossible situation creating the context for mistakes, big and small. In any event, the more recent incidents occurred in the fall of 2012, a significant time after the departure of the nurse identified as the main problem in this respect.

106The general context in which the seriousness of the deficiencies must be assessed is the heavily regulated environment of a correctional institution, which is characterized by a higher level of public scrutiny and accountability than most workplaces, and has security has once of its primary purposes. As well, the manager of the Health Care Unit is responsible for maintaining not only her own professional standards, but assuring those of her subordinates, as well as integrating the management of the Health Care Unit into the overall operation of the Detention Centre by cooperating with, and taking direction from, senior management. At the same time, the position operates with a special kind of autonomy, as it is the highest level health care employee in the institution, and is responsible to external authorities such as the College of Nurses as well. The non-healthcare managers rely on the manager of the Health Care Unit for many things related to the care of the inmates’ health which are beyond their expertise. It is particularly important, given the difference in expertise, that the senior managers who are not health professionals are able to have a high degree of confidence in the judgment and practice of the manager of the Health Care Unit.

107In this context, the nature of the deficiencies in the control and management of narcotics and other medication with a high street value are of particular concern and seriousness. Especially given the history of misuse of methadone by one of the staff of the health unit, the build-up of at least two months’ worth of methadone needing to be wasted is particularly striking. Although, in her evidence Ms. Gronski acknowledged this created a “scary” situation, there is no evidence that at the time it was building up, she was able to act on her knowledge of the potential for negative human and legal ramifications to effectively deal with the problem, even to the extent of making her superiors aware of the situation so that additional staff could be arranged to allow time to deal with it, or some solution devised.

108The deficiency in record-keeping as to infection control reports and medication improvement reports is not as immediately dangerous, but is nonetheless of great concern, as they are essential pieces of the medical safety net for the inmates in the Detention Centre. The haphazard nature of Ms. Gronski’s recording of drugs issued from the reserve room when she was in a hurry, and the acknowledged medication errors, although not intentional, add significantly to the concern. And then there is the incident of ripping up health care documentation on the last day of work. Taken together, these incidents are very serious, and Ms. Gronski did not suggest that she was unaware of her obligations to have acted otherwise. They are certainly worthy of discipline, as acknowledged by her counsel. The remaining question is whether discharge was a proportionate response. Answering that question requires a consideration of the balance of the record of Ms. Gronski’s employment.

109It is clear that Ms. Gronski has many strengths and a great deal of nursing knowledge, both in regards to theory, management and practice. Her performance evaluation in 2007 noted that she worked well in the first couple of years of her job in improving the working relationships in the difficult group she inherited. She ran the unit for seven years in a manner which appears to have prioritized hands–on patient care, and advocated for better staffing and for action on the dysfunctional relationships in the Health Care Unit. She established partnerships with community agencies such as public health and worked on remedying gaps in mental health care for inmates, arranging for a mental health nurse to be hired. She kept up to date on Methadone practice by attending conferences and managed an outbreak of Norwalk virus effectively. It is to her credit that she acknowledged that the deficiencies found were of significant concern, apologized for the medication errors and wished she could take back signing as a nurse when her license was suspended. She gave the job much of her free time, and suffered stress and frustration over the many difficult challenges.

110Despite the positive aspects of Ms. Gronski’s performance, there were significant issues over the course of her seven years, about which senior management was sufficiently concerned to commence formal documentation on a number of occasions and issue a letter of counsel in 2007 and 2009 and discipline in 2010. Thus, one cannot view her record as clear, even though Superintendent Wilson was not relying on past discipline in discharging her. Issues formally brought to her attention included difficulties keeping inventory, taking direction, scheduling nurses, completing administrative tasks, communicating with management and other colleagues, and fiscal responsibility. As noted above, similar issues were coming to a head again in early November 2012.

111The incident of practicing without a license, although not resulting in discipline in a timely manner, is one that Ms. Gronski herself recognizes as very serious. Although the suspension was administrative, rather than for problematic practice, it stands as an example of allowing herself to get into a predicament which, had it been nipped in the bud by paying the fees after one of the College’s reminders, would have been easily handled, with no impact on the Health Care Unit. Even when the suspension happened, more prompt and detailed communication with her supervisors and provision for other staff to perform the assessment involved, would have meant the problem was managed and minimized. It is one example of several where a short-cut, in this instance signing the assessment because other nurses were busy, resulted in much larger problems later. It is also a problem in regards to the confidence that her non-health care professional managers need to have in the reliability of the judgment of the nurse manager, even under pressure of staffing challenges, the particular pressures of nursing in a correctional setting, or personal issues.

112Ms. Gronski was aware for years that the state of affairs was not acceptable, testifying at one point that the deterioration was self-explanatory, and always looking forward to the time when she would be able to implement better strategic plans for the Health Care Unit. She was not able to get on top of the challenges to prioritize in an effective way to deal with the situation. The evidence is very persuasive that her stopgap method of taking on the R.N. role for years, though no doubt responding to short-term needs for inmate care, ultimately worked to the detriment of an effectively run Health Care.

113Ms. Gronski’s evidence communicated that she felt deeply that she was unfairly dealt with, that the investigation was “looking for things”, a “witch hunt”, as she put it to the investigator. It is clear that the impact on her of the discharge has been very difficult. She expressed her dismay at how things ended up when she had “taken the heat” in the Health Care Unit for years, and had always been dedicated to standards of practice and educating herself and others in whatever she was working on. She recalled that she had always been looked up to as a nursing leader and that she had great respect in her previous career in hospital nursing.

114I have carefully considered the idea expressed by Ms. Gronski that the investigation was unfair, and that management was just trying to dredge things up to justify the termination, or to get a clean slate, as her counsel put it, after the departure of the two problematic bargaining unit nurses. There are some aspects of Mr. Hogan’s investigation that appear unusual, such as that he had earlier supervised Ms. Gronski, and formulated the allegations as part of the investigation rather than being asked to investigate specific incidents. As well, there was almost no consideration of positive aspects of her performance, or the job’s challenges, other than her working substantial hours in the R.N. role, which the investigator did not find to be a mitigating factor. Nonetheless, Ms. Gronski was advised of the allegations and given two opportunities to respond, first to the investigator and then to the superintendent before he made his decision, affording basic procedural fairness. The majority of the items substantiated were not denied by Ms. Gronski, and are objectively serious concerns, a significant number of fairly recent vintage. As well, the lengthy hearing of this matter provided a full opportunity to challenge the employer’s conclusions and provide further context. I have noted above where I disagree with those conclusions or their use.

115Ms. Gronski’s counsel emphasized that arbitral jurisprudence such as Arbitrator Hope’s decision in Re City of Vancouver, cited in the appendix, has held that a minimum requirement for just cause is that the employee be put on notice that her employment is in jeopardy if her poor work performance continues. It is common ground that this did not occur in any formal way. Arbitrator Hope noted that arbitrators have long taken a jaundiced view of evidence critical of the conduct of an employee led in support of a dismissal which is neither formalized nor brought to the attention of the employee. He cited two reasons for this: the failure of the employer to formalize the matter invites the inference that the employer placed little significance on the conduct, and that the failure to document and formalize criticism of an employee’s conduct denies to the employee the right to challenge the factual basis of the criticism.

116By contrast, employer counsel argues that progressive discipline has been held to be tempered by other considerations in the case of health care professionals, as in Re Owen Sound General and Marine Hospital, cited in the appendix. In that case, arbitrator Abbot found that counselling or criticism may well amount to an “oral warning” in the context of a nurse and her supervisors, albeit in that case the supervisors were also nurses. As well, the arbitrator found that because of the danger to patients, and the potential legal liability of nurses’ employers, high standards are enforced, and any medication error must be treated as a very serious matter. In general, arbitral case law allows dismissal without notice or full progressive discipline where the conduct is serious enough to be incompatible with the continued employment relationship.

117The City of Vancouver decision relied on by the complainant, found that, especially in deficient performance cases, a warning that one’s job is in jeopardy is a pre-condition to just cause. In that case, the grievor was a clerk, and Arbitrator Hope found that her managers had simply failed to bring home to her their dissatisfaction with her work, describing the manager’s attempts as intermittent. As well, there was evidence that the grievor in that case had been suffering personal and health problems that were resolving, that she had responded to direction in the past, and that the supervisor who had trained her thought that some form of discipline would improve her performance. Central to Arbitrator Hope’s decision is the idea that employees should have the opportunity to defend their jobs before being discharged – that it is only when an employee knows the job is in jeopardy, and still does not meet the standards, that it can really be seen that she cannot sufficiently improve. This is indeed the main weakness of the employer’s case.

118Nonetheless, most of the arbitral jurisprudence addresses bargaining unit employees, rather than a manager, with the responsibility to enforce performance standards herself. And it cannot be said that Ms. Gronski was unaware of senior management’s dissatisfaction with her performance, or the areas in which her practice was not in line with Ministry policy or professional standards. Further, the formulation of the Supreme Court of Canada in McKinley, a case of a non-bargaining unit employee, does not require explicit notice in all cases. Where conduct, whether involving a single or several incidents, rises to a serious enough level to be inconsistent with the employee’s obligations to the employer, so as to be incompatible with the employment relationship, notice is not required. For instance, the Court cites with approval earlier case law such as R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co. (1967), 1967 CanLII 30 (ON CA), 62 D.L.R. (2d) 342, where the Ontario Court of Appeal stated that an employer’s right to summarily dismiss an employee is triggered by “serious misconduct”, which was recognized as including habitual neglect of duty, incompetence, willful disobedience or “conduct incompatible with his duties, or prejudicial to the employer’s business.” Even so, the lack of prior notice that the employer was considering discharge at least heightens the scrutiny I have given to the employer’s conclusion that the employment relationship was irreparable, leading to the question of whether the mitigating factors, such as her seven years’ service, dedication to inmate care and difficult working environment, mean that Ms. Gronski should be reinstated, or compensated for the lack of notice, as both counsel argued in the alternative, albeit for different reasons.

119There is much that is deserving of sympathy in Ms. Gronski’s situation, in light of the very challenging circumstances of her position at the Detention Centre. She was clearly very stressed by the significant issues she faced. Nonetheless, having carefully reviewed the evidence and arguments in this matter, in the framework recommended by McKinley, I find that the bond of trust with senior management, which is a fundamental condition of the employment relationship of the manager of the Health Care Unit in the context of the Detention Centre has become objectively irreparable. While, as argued by her counsel, seven years of stressful service is a considerable investment in the Ministry, I am persuaded by employer counsel’s submission that in order to reinstate Ms. Gronski, it would be necessary to find not only that she was not negligent or guilty of misleading the employer, but that the conduct would change, so that the liability of the Ministry would not continue, and that senior management could have confidence that the Health Care Unit would be run in a way that does not create additional liability for the employer.

120There is shared responsibility for the situation that existed in November 2012 in the Health Care Unit, as discussed above. There was significant changeover in her supervision, including perhaps 6 or 7 different Deputy Superintendents, which no doubt contributed to the fact that the problems went unchecked and unsolved as long as they did. There is also the factor of the indirect oversight of the Corporate Health Care office and the doctor who provides medical services to inmates, which did not result in timely information to senior management regarding a number of the ongoing issues in regards to inmate care or error and infection tracking.

121Nonetheless, I am persuaded by the evidence that the portion of the responsibility for the situation properly borne by Ms. Gronski, together with the cumulative weight of the substantiated incidents gave sufficient grounds for the termination. This is not the case of a bargaining unit nurse who might be able to be returned to work with extra supervision or a refresher course. This case involves the manager charged with supervising the bargaining unit nurses, upholding standards, and coordinating activities with the correctional managers to ensure the health of the inmates, in the context of a secure facility. The common thread running through the evidence is that, under pressure, Ms. Gronski has great difficulty being reliable in fulfilling the duties of Health Care Manager in the very challenging correctional context. Further, and importantly, Ms. Gronski’s evidence gave little comfort that anything has changed in her appreciation of the situation that would give confidence that things would be different if she were to be returned to the position. The evidence displays an ongoing problem in the exercise of judgment as a manager as to priorities, which include the problems in the control and documentation of medications and the extreme amount of hours worked as an R.N. I find that the recent substantiated incidents set out above, in the context of the issues over the years for which Ms. Gronski was warned, including continuing difficulties meshing her leadership with that of the senior management of the Detention Centre, make it very difficult to reasonably expect senior management to be able to have the necessary confidence in her to run the Health Care Unit. In all of the circumstances, I find that the employer’s conclusion was reasonable, i.e. that the nature and seriousness of her behaviour was irreconcilable with sustaining the employment relationship and the confidence necessary to it.

122In the circumstances, I find that discharge was a proportionate response, and the onus of proving just cause on a balance of probabilities has been met. Accordingly, the complaint is dismissed.

Dated at Toronto, Ontario this 30th day of September 2015

APPENDIX

Case law

Cited by counsel for the employer

1. Gregory Dyson and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 8245 (ON PSGB) (Carter)

2. Leisureworld Nursing Home and S.E.I.U., [1995] O.L.A.A. No. 594

3. National Grocers Co. v. United Food and Commercial Workers Union, Local 1000A (O’Brien Grievance), [2003] O.L.A.A. No. 385 (Nairn)

4. Oshawa General Hospital and Ontario Nurses’ Assoc., [1976] O.L.A.A. No. 59

5. Oshawa General Hospital and Ontario Nurses’ Assoc. Oshawa General, [1975] O.L.A.A. No. 16

6. Owen Sound General and Marine Hospital and Ontario Nurses’ Association, [1977] O.L.A.A. No. 82

7. Religious Hospitallers OP Hotel-Dieu of St. Joseph of the Dioceses of London and Service Employees’ Union, Local 210, [1974] O.L.A.A. No. 97

8. St. Peter’s Hospital v. Canadian Union of Public Employees, Local 778 (Male Grievance), [2005] O.L.A.A. No. 65

9. The College of Physicians and Surgeons of Ontario and Dr. Albert Ross Deep, [2010] O.C.P.S.D. No. 19

Cited by counsel for the complainant

1. Aerocide Dispensers Ltd. and United Steelworkers of America, (1965) 1964 CanLII 958 (ON LA), 15 L.A.C. 41 (Laskin)

2. Cardoza and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), (O’Neil) 2011 CanLII 86404 (ON PSGB), 2011CANLII 86404 (ON PSGB)

3. City of Vancouver and Vancouver Municipal and Regional Employees Union, (Gushue Grievance) (1983) 1983 CanLII 4826 (BC LA), 11 L.A.C. (3rd) 121 (Hope)

4. McKinley v BC Tel, [2001] S.C.R. 161

5. Ontario Public Service Employees Union (Seguin grievance) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), (Brown) 2005 CanLII 55218 (ON GSB), 2005 Can LII55218 (ON GSB)

6. Ontario Provincial Police and Ontario Provincial Police Association (Phinney and Poole) (Petryshen), unreported decision dated January 15, 2015

7. University of Ottawa v. International union of Operating Engineer’s, Local 796-B (Lanthier Grievance) (1994) 1994 CanLII 18776 (ON LA), 42 L.A.C. (4th) 300 (Bendel)