Mock Arbitration

In the case of Kevin Hire vs Management, the union and employee would like to have Mr. Kevin Hire’s suspension from work discharged, on the account that it did not comply with the disciplinary procedures in his contract. The management however, believes that the disciplinary action taken was applicable to Mr. Hire’s actions in the workplace. The employees’ supervisor, Olive Martinez, suspended the said employee after he refused a lawful and direct order to transport a post-surgery patient from a gurney to a bed. Instead, Mr. Hire chose to clock out and go home despite being warned of the consequences. The hospital management feels that he not only knowingly refused to do part of his job but he also completely neglected the patient on a gurney in the hallway after surgery. Therefore, in the management’s opinion the suspension of Kevin Hire was a fair disciplinary action especially since this is not his first time acting unprofessional in the workplace. In conclusion, the management’s main views on the situation are:
1)The employee has been verbally warned and noted by his supervisor for other minor unprofessional workplace behaviors such as taking extended breaks. Although, management does acknowledge that there are no written documentations of said warnings.
2)Management has never received any documentation or doctor’s note about grievance's back injury and therefore has no evident reason or obligation to accommodate with him or to believe they are placing him in a potentially harmful situation. In addition, the employee’s original application to the hospital did not make any claims about any injuries that could possibly impact his ability to perform specific work related tasks.
3)Human Resources claim that they train all their employees in practicing safe procedures in the workplace, including how to lift patients with legs instead of back. The employee had received a refresher of this training three months prior to incident resulting in his suspension. As a matter of fact, after Mr. Hire chose to clock out a much smaller female nurse was able to transport the patient from the gurney without any struggle or injury by using her legs instead of her back.
4)Not only did they need all gurneys back to the other room immediately, but by leaving the patient in a gurney, he was potentially causing him harm. As a patient in the hospital it is expected that they will be treated with incredible care and rely on the staff of the hospital since they are in fragile condition and are unable to care for themselves. On the other hand, the Union states the Mr. Hire had good reason to refusing to follow his supervisor’s instructions. The employee did not move the patient from the gurney due to a back injury that he claims the management was well aware about. Not only were they knowledgable about his injury, but they often accommodated with it as well, allowing him to seek the assistance of other employees with physically challenging tasks. Furthermore, the employee claims he was never given prior warning and evidently according to his records, has no noted warnings in his entire three years with the employer. To sum up the union’s position, their main points are the following:
To the best of his knowledge, the employee states that he has received no other warnings or disciplinary actions prior to this incident. Thus, he is bearing the third step of the management’s disciplinary procedure rather than the first.
Prior to this incident, the management has always allowed him to seek the aid of other employees while performing tasks that would risk further harm to his back.
The employee claims that he has never given the human resource department a formal doctor’s note in regards to his back injury because they never requested it of him, therefore he never sought the medical attention of a doctor. Although, he does add that he sees a chiropractor and uses a heating pad regularly to compensate for his injury.
The employee believes that his supervisor along with other members of the management are biased towards him because he is the face of the union. They have openly admitted that they dislike having to meet and discuss issues with the union and therefore the grievance believes that she (Olivia Martinez “wasn’t trying to look for a solution she was looking to cause a problem” in regards to suspending him.
Mr. Hire states that it was his right legally, to decline an order that could potentially be causing him harm. In fact, he claims that it is written in his contract and that OCEAN has targeted lifting safety and discourages staff from moving patients by themselves.
The union raises the point that not only could Mr. Hire be risking further injury to himself by lifting the patient, but he also could have risked harming the patient if he possibly mishandled him. As arbitrator, my first focus will be on the points of argument made by the management. To begin, the management first claims that this is not Mr. Kevin Hire’s first time not following workplace rules. Olivia Martinez states that she has verbally warned and has taken notes against the employee for other minor offenses such as taking extended breaks. In addition HR Vice President Lanique Richards affirms that she has also verbally coached the employee about bettering his performance. Although oral warning is considered the first step of a disciplinary practice, according to Mr. Hire’s record there are no documentations about his supervisor’s written warning or human resources coaching session. In addition, previous to this situation management has always allowed the employee to request the help of other staff members when it came to transporting other patients from gurneys. Therefore, the management did a poor job in giving Mr. Kevin Hire an adequate and consistent warning to make him aware that his actions could not be tolerated. The management’s second claim is in regards to failing to receive a medical note from a doctor, so the employee could request official accommodation for his injury through human resources. While it was largely Mr. Hire’s responsibility to provide a doctor’s note so he could be properly excused from doing physically challenging tasks, it was also management’s duty to request a doctor’s note from him before acquitting him from performing physical duties previously. Whether or not Mr. Hire provided a doctor’s note however, does not excuse him from the fact that he is fully aware of how to properly lift a patient without the use of his back. As the management states in their third claim, upon being hired, all there staff including Kevin are given training on proper precautionary instructions. If Mr. Hire’s seven years of experience as a nurse didn’t already provide him with enough knowledge on how to lift a patient without using his back, the refresher training session he attended three months prior to the incident should have taught him. The last claim made for the suspension of Mr. Hire is that by leaving the patient unattended in the gurney, he was neglecting and causing possible harm to him. As a nurse, the employee’s first priority and job is to aid and look after the safety of their patients. By refusing to attend to the patient who had just received surgery, he was not only refusing to do a large part of his job but could have also possibly damaged the employee and tarnished the reputation of the hospital. In regards to the views of the union and employee, the first point of argument they made was Mr. Hire’s clean record with the hospital. Therefore, he was given a third or fourth step disciplinary action when he should have received a first step procedure. Although human resources can choose to skip disciplinary step procedures, he is right to assume that he was technically given no prior warning in regards to related situations. This also covers their second claim as to how the hospital has always allowed Mr. Hire to get the assistance of another staff member to help him lift patients. By doing this, management had failed to give the employee formal and consistent warning to notify him that his choices would be unacceptable. The third statement of the employee is that despite management’s full awareness of his back injury, human resources never requested any type of doctors note from him. Although it is Mr. Hire’s responsibility to provide a medical note to management so they could properly dismiss him from doing physical labor, it is understandable to see why Kevin was misled to believe he did not need to provide one. Management permitted the employee to be excused from tasks such as lifting patients without appropriate notation from him in similar situations. The union proceeds to try to argue their opinion that Mr. Hire’s supervisor Ms. Martinez, is biased towards him thus also playing a factor into his suspension. The employee claims that he feels his supervisor treats him unfairly because she dislikes the union and he is the face of it. However, this point made on the unions part is unavailing because there cannot be any sufficient proof to demonstrate this and therefore is disregarded from this arbitration. The fifth statement the employee makes is that it his right not only stated by his contract, but legally to decline a work related order that places him in a potentially dangerous situation. It is Mr. Hire’s right to refuse to fulfill a task that will cause him harm, however whether or not lifting a patient is potentially harmful for him is questionable, because again no doctor’s note was provided. Therefore, management has no official reason to believe that they are placing him in harms way, and his suspension cannot be argued to be unlawful. Lastly, the union raises the point that not only could the employee be risking injuring to himself, but also to the patient as well if mishandled. While this is true, Mr. Hire could also be risking injury to the patient by leaving him unattended as well. Ultimately, Mr. Hire was trained on how to accurately lift a patient without using his back and therefore could have lifted the patient without great concern of mishandling him. However, this aspect that the union raised is an evident example of the improper workplace procedures on both the management and employees part. The employee should acknowledge that assisting patients is essentially what his job consists of and therefore should have provided a doctors note to management so he would not have had to potentially risk his own well being as well as the patient’s. Management however, should have also made sure that all their staff was properly equipped to assist the needs of their patients, because ultimately a patient’s well being is the main concern of the hospital. After reviewing both sides of the union and managements case, it is very clear that neither followed the correct and professional workplace procedures. Essentially, although management had suspended Mr. Kevin Hire for not following through with a rule, they had failed to give him a fair warning, a consistent reinforcement, or equal treatment under similar circumstances. Therefore, the grievance will be sustained. Mr. Kevin Hire will be permitted to return to work but must provide a doctor’s note regarding his back injury within the following week.