Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

It was not “harassment” for a manager to mention the College of Nurses of Ontario and remind nurses of their professional obligations, an arbitrator has held.

The nurses worked at the Central East Correctional Centre.  In a meeting, the manager reminded nurses that they should not be sleeping or watching movies during the night shift, and discussed changes to the “break routine”.  Some nurses appeared to be resisting the manager’s message regarding sleeping and watching movies.  One nurse asked a “question” about whether nurses should respond to emergencies during unpaid breaks, which the arbitrator took as a threat of retribution in response to changes to the breaks.  The manager reminded them of their professional obligations as nurses and referred to the College of Nurses of Ontario.

The nurses complained that the mention of professional obligations, and of the College of Nurses of Ontario, was threatening and amounted to harassment.  They argued that it carried the implication that the nurses could face professional penalties for resisting changes to break times.

The arbitrator disagreed, and was critical of the nurses:

“The union asserted that the employer’s references to the [College of Nurses of Ontario] were wholly unnecessary, and that the grievors were fully aware of, and did not need to be reminded of their professional responsibilities.  Given the comments made in response to both issues, this was apparently not the case.  If they had been aware, or if that awareness had been in their minds during the meeting, it is unlikely that they would have reacted by defending the right to sleep while on duty or raising the issue of not responding to emergencies because they did not find favour the employer’s position with respect to breaks.  To my mind, the employer’s reminder of the professional obligations was justified and apt.”

In conclusion, the arbitrator held that the nurses had not been “threatened, intimidated or harassed”. Instead, the “employer was engaged in an attempt to manage improper workplace behaviour”.  The reference to the College of Nurses of Ontario was an appropriate answer to the inappropriate “question” that carried the implication that nurses might not respond to emergencies on unpaid breaks.  The nurses’ reaction was “irrational and cannot be explained on the basis of the employer’s approach to the meeting.”

This decision is another reminder that an employer’s legitimate management of the workplace is not harassment.

Ontario Public Service Employees Union (Marsh et al) v Ontario (Community Safety and Correctional Services), 2014 CanLII 13355 (ON GSB)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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