Home-care nurse alleges systemic discrimination in human rights complaint

·5 min read

TORONTO — An Ontario home-care nurse is alleging systemic discrimination at the hands of her employer after she says the organization failed to protect her from being sexually assaulted by a patient.

A complaint filed with the Human Rights Tribunal of Ontario alleges VON Canada, a Hamilton-based non-profit providing home and community care, didn't warn the nurse that the patient had a history of "harassing and sexually assaulting" nursing staff and women before sending her alone to his home in June 2018.

It further alleges the non-profit, which receives funding from various levels of government, failed to address the incident quickly or to "appreciate its severity," and offered only "perfunctory" accommodations that would have conflicted with the nurse's professional obligations.

The nurse said the incident left her grappling with trauma and effectively brought her career to a standstill.

"I questioned my self-worth, my abilities as a nurse -- like, 'can I even continue being a nurse?'" the nurse, who is not being named by The Canadian Press due to the nature of her complaint, said in an interview.

"It affected my personal relationships, my ability to function in the world. It changed everything about my life in just minutes, because of an act that my employer really could have, and should have, prevented."

The nurse's complaint argues the organization's actions and policies amount to systemic discrimination by allegedly failing to protect its largely female staff from workplace violence, sexual harassment and sexual assault.

VON Canada said it makes "full and transparent efforts" to ensure the health, safety and well-being of its employees, and reviews its workplace safety policies and procedures on an ongoing basis, but declined to comment on the allegations in the complaint, citing the tribunal process.

"The matters at issue touch upon patient confidentiality. VON is committed to the process and we look forward to a timely and fair resolution of this matter," it said in an email.

The case, which was set to begin mediation Friday, is part of a broader shift in which work-related issues are arising in non-traditional workplaces, such as homes or other remote locations, said Samara Belitzky, an Ottawa-based employment lawyer who is not involved in the case.

"The law is quite clear what the obligations of employers are and what the rights of employees are when it comes to workplace health and safety. What we're seeing now which is ... a developing area of the law is the actual workplaces that are changing," even more so in light of the COVID-19 pandemic, said Belitzky, a senior associate with the Samfiru Tumarkin firm.

"So the law doesn't change but the application of it changes."

It's not always possible to have the exact same health and safety measures in place in a remote work setting as in a traditional workplace, but employers must "make an effort to ensure that the workplace is as safe and as healthy as possible" and consider alternatives that provide similar protections, Belitzky said.

In a home care context, workers may not have access to the same supports they would in a hospital, but there are many other measures that can be enacted, such as a buddy system, for example, Belitzky said.

As part of the tribunal complaint, the nurse is seeking $500,000 in general and special damages and an order that VON develop and implement "adequate emergency response protocols and training in respect of sexual harassment and sexual assault in the workplace," among other remedies.

At the time of the alleged incident, she had been working for VON for about six years. She was assigned to attend to the patient at his apartment the morning of Saturday, June 2, 2018, around 8 a.m., the complaint says.

The organization uses an app called CellTrak to communicate with staff and provide information about the patient, and there were no safety concerns noted -- only his address, contact information and care needs, it says.

The application alleges the local health network that referred the patient to VON had disclosed he had "a history of sexually assaulting female health-care workers providing direct care," but that nothing was communicated to the nurse before her appointment with him.

When she arrived, the nurse was allowed inside by one of the patient's relatives, who then left her alone with the man, the complaint says. The patient couldn't speak English, so the nurse tried to communicate using hand gestures, it says.

The patient groped her thighs, buttocks and breasts and "forcefully restrained her while attempting to bite and suck on her arm and kiss her body," the complaint says.

She eventually broke free and ran outside to her car, where she repeatedly tried to contact VON through email, knowing the organization's on-call staff weren't available until 8:30 a.m., the document alleges.

"I just burst into tears ... it was really distressing. I was really shocked, I didn't really know what to do in that situation and how to move forward," the nurse said in an interview.

"At the same time, I knew that I was needed to go to my next patient in the next 20 minutes, so I was super stressed."

She said she spoke to a supervisor at the end of her shift, who told her to report the incident. But she didn't hear from anyone for days after that, she said.

Eventually, she reached out to her union, and they had a meeting with management, she said. The incident was treated as an unfortunate event, and the emphasis was on moving on, she alleges.

She was offered office duties but wasn't able to return to work due to her mental state, she said. Accommodations offered later included having her treat only female patients or allowing her to treat patients with the door open, which would either not be feasible or violate patients' rights, she alleges.

The nurse hasn't returned to work since the incident.

This report by The Canadian Press was first published July 9, 2021.

Paola Loriggio, The Canadian Press

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