Sudbury nurse launches court battle after losing job over her struggles speaking English

The Ontario Nurse’s Association filed the grievance motion on her behalf claiming that her firing was discriminatory and violated the Ontario Human Rights Code. In a recent decision, an arbitrator rejected efforts by Health Sciences North to dismiss the case on the basis of jurisdiction in a preliminary motion. (File)

A nurse who failed to pass her probationary period in Sudbury largely because of her struggle to communicate in English has filed a labour grievance against her employer.

The Ontario Nurses' Association filed the grievance motion on her behalf claiming that her firing was discriminatory and violated the Ontario Human Rights Code. In a recent decision, an arbitrator rejected efforts by Health Sciences North to dismiss the case on the basis of jurisdiction in a preliminary motion.

The nurse worked in Saudi Arabia and the Philippines before coming to Canada and working as a PSW for two years. She received her Canadian nursing credentials and worked in homecare in Sault Ste. Marie

She was hired in Sudbury in May 2023 as a full-time registered nurse at HSN in the vascular thoracic urology department, according to the arbitrator’s decision on the motion.

The unit “is a poorly-staffed, high acuity unit,” the decision said.

“The baseline in this unit is four patients for a nurse and the grievor regularly had seven and was asked if she could do 10.”

Despite her obvious struggles with English, staff on the floor were not helpful.

“The grievor’s preceptor subjected her to differential treatment, including ignoring her, sitting in the nursing station and talking, requiring her to double-check all medications administered, repeat charting and assessments, and work overtime after shift to repeat vital signs checks, even though the grievor had completed these properly,” the decision said.

Other nurses would laugh at her pronunciation and her manager told her if she couldn’t handle 10 patients at a time, “she would need to find another job.”

Extremely busy floor

However, HSN denied any discrimination took place. Instead, it argued that the nurse worked on an extremely busy floor where she needed more support than they could provide.

“This employee has a significant language and communication barrier, has a difficult time understanding medications and is a new RN,” HSN said.

“Working on an acute surgical unit that is extremely short-staffed has made it difficult to provide her with the amount of support she requires given her background.”

In response, the union argued that it didn’t have to prove discrimination at this point in the process. All it needed to do was show a link between the grounds for the nurse’s dismissal (origin/language) and her poor performance.

“If the particulars as outlined by ONA are true, it is not disputed that the grievor is an internationally-trained nurse, that she has an accent and a language barrier which gives rise to communication issues,” which led to her poor performance and termination, the decision said.

“It asserts that, at this point, it only has to establish a nexus between the grievor’s origin and her discharge. It need not establish discrimination.”

Needs to speak English

In her ruling, the arbitrator said that the union had to show three elements for the action to proceed: that the nurse has a language barrier due to her origin; that she was terminated from her job; and, that the language barrier was a factor in her termination.

HSN argued that requiring a nurse to speak English can’t possibly be viewed as discriminatory.

“This not discriminatory, but a bona fide occupational requirement,” the hospital said.

While not disputing that speaking English would be a requirement at a busy hospital unit, the arbitrator said that doesn’t in itself prove there was no discrimination.

The union has shown a link between the nurse’s origin and her losing her job.

“Whether or not the case of discrimination will be ultimately borne out, I am unable to conclude, at this stage, and accepting the union’s particulars as true and provable, that there is no legal basis for the union’s claim,” the decision said.

“For all the reasons set out above, the motion to dismiss is denied.”

Read the full transcript here.