New Brunswick's labour board has ruled a bonus meant to attract more nurses to work at the troubled Restigouche Hospital Centre violated a provincial law and didn't work.
Vitalité Health Network announced in September it would offer a five per cent pay premium to current and future nurses to work at the psychiatric facility in Campbellton. The staff vacancy rate at the centre, known as RHC, had climbed from 16 per cent in December 2018 to 40 per cent in July 2019.
But a decision issued Tuesday states the bonus led to only one new nurse being hired, and adds that the employer admits the move had no measurable effect on recruitment.
"The situation at RHC in the summer of 2019 was one effectively created by the employer over a lengthy period of time," Elizabeth MacPherson, vice-chair of the labour board, stated in a 13-page decision issued Tuesday.
The bonus was meant to address challenges at the facility in northern New Brunswick that has come under scrutiny. The hospital was the subject of a provincial ombud report last year that found 'significant mistreatment' and inadequate care of patients linked to chronic understaffing.
Days after the report was released in February 2019, Martin Michaud died by suicide at the hospital. Vitalité Health Network's internal investigation into the death of the 38-year-old resulted in a recommendation to continue recruiting staff at the psychiatric hospital so it can ensure an adequate ratio of personnel.
The employer, the Vitalité health authority and provincial Treasury Board, argued the bonus was necessary to quickly deal with the staff shortages after failing to agree with the union on a way to retain and attract staff.
The New Brunswick Nurses Union filed a complaint with the labour board, arguing the move was made unilaterally during contract talks in violation of the Public Service Labour Relations Act.
A hearing was held over several days last year. In December, MacPherson ordered the employer to halt violations of the law and resume collective bargaining with the union. MacPherson issued a written decision Tuesday.
Paula Doucet, president of the union, said the decision speaks for itself.
"The employer was in breach of the law," Doucet said.
MacPherson found the bonus violated a section of the law that forces the employer to "freeze" the terms of the collective agreement once a notice of bargaining is issued. The notice was issued in October 2018.
The union argued that the move changed employee compensation, violating the freeze. The union had sought a province-wide recruitment and retention initiative.
The employer argued it tried to reach an agreement with the union on attracting and retaining employees over the summer of 2019. When no agreement was reached, it went ahead with the bonus using an exception to the freeze for critical situations.
'Lack of planning' by employer
But staff shortages were a continuing issue rather than one that required exceptional actions, the decision states.
"To a large extent, the circumstances were due to a lack of planning that was fully within the employer's control," MacPherson wrote.
MacPherson wrote that the employer had a duty to bargain in good faith, which included exploring all options available to address the issue. But, MacPherson said there was no evidence the employer ever asked the union for its proposal on province-wide recruitment and retention initiatives.
MacPherson wrote that a party can't adopt a "rigid, intransigent position and then claim that the other party's failure to agree to it constitutes an emergency."
CBC News requested interviews with Vitalité and the provincial government about the board's decision. Neither provided one.
"We are complying with the arbitrators' decision and are assessing our options," Bruce Macfarlane, a spokesperson for the health department, said in a statement.
Vitalité has maintained that the hospital is safe for patients.
Witnesses for the employer testified during the labour board hearing they were concerned staff shortages over the summer could cause security risks for staff and patients
Gisèle Beaulieu, Vitalité's vice-president of performance, quality and corporate services, testified that without nurses at the facility, it becomes effectively a lodging house or jail and there's no ability to provide treatment or care.
About 60 per cent of the facility's patients have been sent there by court-order for mental health assessments, the decision states.