The grievant, a two year employee was terminated for violation of work rules relative to patient care and for violation of the Patient's Bill of Rights. The employer argued that the grievant had received eight counseling memos and that termination was now justified.

The Union argued lack of just cause and responded that counseling memos are called "just so you know" and do not result in any discipline.

The Arbitrator began by examining the definition of abuse and concluded that "the grievant did not willfully inflict injury, unreasonable confinement, intimidation or punishment with resulting harm, pain, mental anguish, etc., on either resident."

The incident involving the grievant and the residents, in the opinion of the Arbitrator was determined as a "Catch 22" situation for the grievant. One resident was on the food acceptance program. If the CENA does not force the resident to eat, she could be charged with patient neglect. Conversely, if she forces the resident to eat, she can be charged with patient abuse and violation of Patient Rights. The latter was what happened to the grievant.

The Arbitrator concluded that the grievant's actions were not intentional or willful. "It was a matter of judgment. That is why progressive discipline is important for two reasons. First, it puts the employee on notice that he/she did something inappropriate, and second, it puts the employee on notice that he/she must improve and not commit the offense again. Progressive discipline is designed to improve employee performance, not just to discipline employees."

The grievance was reinstated to her position with seniority. Back pay was pro-rated due to a period that would have been considered maternity leave.