Home Finance Howard Levitt: The Elizabeth Wettlaufer case warned us about the dire condition...

Howard Levitt: The Elizabeth Wettlaufer case warned us about the dire condition of our senior homes. But unions were too busy protecting their members

Remember Elizabeth Wettlaufer?

She was the serial killer and former registered nurse who wreaked havoc through long-term care homes between 2007 and 2016, killing eight residents and almost murdering six others. There was a full Commission of Inquiry in an attempt to understand the situation in senior homes that led to her undetected rampage.

As the Commissioner, Ontario Court of Appeal Justice Eileen Gillese, found, Wettlaufer’s crimes would never have been uncovered if she had not turned herself in.

One less discussed but highly relevant aspect of the story was that her union, the Ontario Nurses Association, represented her when she was fired from her second last job at a Caressant Care facility in Woodstock in 2014.

Even by that time, she had more than 130 complaints in her file. This compares with the 17 complaints against former Minneapolis constable Derek Chauvin that were enough to arouse rage as to why he had not been earlier removed before he was able to kill George Floyd on May 25, setting off protests across the United States and beyond.

But it took 130 complaints before Caressant fired Wettlaufer, and dutifully reported her firing to the College of Nurses of Ontario, the governing body of registered nurses. But CNO took no action, leaving Wettlaufer with a spotless record as she proceeded to her next job at London Meadow Park Long-Term Care in Ontario, where she had the opportunity to kill two more residents and unsuccessfully attempted to kill two others before finally admitting to her crimes.

Why did she get away with this killing rampage for so long?

Certainly, the College of Nurses shares some of that blame for doing nothing with Caressant’s report. And so must Caressant Care, where many of her crimes were committed. With 130 filed complaints against her, why did it take so long? At least Carressant ultimately fired her. But why did Caressant not take her case to arbitration but instead settle with the ONA, Wettlaufer’s union.

The vice-president of human resources at Caressant Care testified that the company decided not to go to arbitration over the discharge because the union had filed a grievance and Caressant was concerned that Wettlaufer could be reinstated if the company lost.

Wettlaufer would have been fired soon if she was not part of a union, Caressant stated. Interesting confession, but what does that say about the role of unions and ONA in the long-term care home debacle that’s unfolding before our eyes during the pandemic?

Admittedly, ONA did not know at the time that she was a serial murderer. But it did know that her transgressions included medication errors, laziness, bizarre conduct, a lack of competence and ongoing challenges with substance abuse and mental illness. In short, ONA knew that she was a danger to her patients.

While ONA representatives insisted they did not know the full extent of her depravity, what they did know, while continuing to grieve to have her reinstated and keep her “clean” record, was deplorable.

Indeed, many of the complaints filed against her were by her unionized colleagues. But ONA not only defended this criminal actions, but provided no warning to the public, the government or the regulatory boards. Neither did Ontario Public Service Employees Union who represent Inspectors of these homes. Indeed, their nonfeasance allowed her to move on to the next home and murder again.

While unions have a responsibility to serve their members, they also have a duty to the public, especially if they work in healthcare. That’s where we see the disconnect. Too many unions are solely focused on members.

The union may argue to the uninformed that they have a duty to represent their members, especially those that are fired. But the legal obligation is a comparatively light one. As long as they come to an unbiased decision that the case is weak or not a good use of members’ monies, they need not take a case. Most unions take relatively few cases to arbitration.

A study by arbitrator Morton Mitchnick, a former chair of the Ontario Labour Relations Board, found that very few cases by union members against their unions for not fairly representing them were successful. ONA did not have to take Wettlaufer’s case and should not have. If it hadn’t, likely more would not have died as she wouldn’t have moved to the next home.

It’s not just ONA at fault in the long-term care home scandal.

What about the inspectors of these facilities represented by the OPSEU. According to “Smokey” Thomas, OPSEU President, in an interview last Friday with Jerry Agar on Newstalk 1010, Ontario inspectors had less than four homes to supervise on average. By any measure, an extraordinarily light workload. They must have seen the depravities that have come out in a recent report by the army into long-term care homes. That was their job.

But OPSEU was quick to attack the managers of long-term care homes last week in a statement. “Smokey” Thomas alleged that long-term care managers, “are purposely misleading the (Ontario) Premier to cover up their own incompetence that covers decades of inaction. Inaction that has cost thousands of lives of our most vulnerable citizens. People who helped build this province and make it what it is today.”

That may be true but where does the blame actually lie? It may be that individual managers at individual homes were sleeping through their shifts. But the organization with the broader perspective, Thomas’ own union as well as the Ontario Nurses Union, had the unique perspective of seeing a pattern of abuse over multiple homes.

ONA and OPSEU should have been shouting from the rafters for years, repeatedly decrying the situation in long-term care homes rather than protecting their members, many of whom were found to be reckless and worse with its residents. Why did we not find out from them how residents were treated (by largely unionized employees)?

Unions claim to be a responsible participant in our social fabric but they concealed the spoilage of long-term care homes for so many years to protect their members. If they claim they have a social responsibility and have their dues tax-exempted as a purported public benefit, what responsibility must they start showing — and what penalties should befall them for abdication of duty?

Got a question about employment law during COVID-19? Write to me at [email protected]

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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