IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
TERRENCE GANGASINGH
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IN THE MATTER of an appeal by the Claimant
from a decision of a Board of Referees given at
North York, Ontario, on the 17th day of April, 2000
D E C I S I O N
Hon. David G. Riche
The claimant appeals a decision of a Board of Referees sitting at Toronto on the 17th of April, 2000. The Board dismissed the claimant's appeal based on the following findings. The employer, Toronto East General Hospital, reported that the claimant was fired on December 15, 1999 because he released confidential patient information to someone outside of the hospital (Exhibit 5).
The Board found the claimant advised that after failing to receive answers from the hospital administration, he wrote to the Deputy Mayor in an attempt to protect a patient's rights since the patient's confidentiality was compromised (Exhibit 4.1 and 4.2).
The employer indicated that the claimant worked for the hospital as a registered nurse since 1988 and was aware of the rules of confidentiality. The hospital had procedures in place to deal with nurses concerns. He did not follow those procedures. The Board found that had he sought and obtained written permission from the person whose rights he was trying to protect, there would be no breach of confidentiality and therefore no dismissal for this reason (Exhibit 5).
The claimant was concerned that hospital staff were making mistakes in their capacity assessments and he was only seeking a second opinion. He felt bound by conscience, values and ethics to take such steps and protect the rights of the patients and the public. He also suggested the penalty imposed by the hospital was too severe.
The Board found that the breach of confidentiality did constitute misconduct and for those reasons they upheld the finding of the Commission that the claimant's actions constituted misconduct under the Employment Insurance Act.
When this matter came before me the claimant pointed out that he had verbal permission from the patients to make these disclosures. He also had these confirmed in nurses' notes. Further he stated that he gave this information to the Board of Referees. There is no mention whatsoever in the decision of the Board of this evidence. Further, the claimant disclosed that since the hearing before the Board of Referees the hospital rescinded his dismissal and made a deal with him, thereby they gave him a severance package and a letter to help him acquire other employment and in return he would resign.
Although it is not my position to make decisions on the facts, I do find it admirable that this claimant had so much concern for the patients under his care. Although he did not have written permission from these elderly patients, he did have their verbal consent to make disclosures concerning them, and these were documented in nurses' notes. This seems to have been completely ignored by the Board.
Further, I am in receipt of evidence which was not before the Board concerning this arrangement made between his employer and the claimant whereby a severance package was arranged in return for a resignation. To my mind once the dismissal was rescinded the issue of his misconduct should go back to the beginning. I am now left in a position where the misconduct issue is in question, if there was any misconduct at all. In respect of the Board's decision, the only error I find is that they did not deal with the evidence before them that he had the consent of the patients recorded in nurses' notes.
Ordinarily I would send this back to a new Board for a rehearing in order to consider the issue of the verbal consent obtained by the claimant. In this case, however, I am left with a situation where the actual dismissal has been rescinded and presumably the issue of misconduct, if any, left in doubt.
In these circumstances I find it appropriate to allow the appeal and set aside the decision of the Board on the basis that there was no real breach of confidentiality and certainly no misconduct as required by the Employment Insurance Act. The appeal is therefore allowed and the decision of the Board set aside.
David G. Riche
Umpire
March 25, 2001
St. John's, Newfoundland