What is the test for summary discharge of a registered nursing assistant?

256. The Union referred to the award in North York General Hospital v. Canadian Union of General Employees (1973), 5 L.A.C. (2d) 45 (Shime) where Arbitrator Shime states at 46-48: What is troublesome about this case is that the grievor who has been employed for approximately two years has been summarily discharged notwithstanding the lack of any prior disciplinary record, the lack of any warning that unless her work performance improved that her job would be in jeopardy and the lack of a culminating incident which might explain why the employer which had tolerated her allegedly poor work performance for so long, suddenly decided to terminate her employment relationship. It is trite to say that the penalty imposed should fit the offense. Summary discharge may be warranted in extremely serious offences such as striking a foreman or theft; however in less extreme situations, such as infraction of plant rules or carelessness in work performance, it is usual to find some form of corrective discipline in the form of warnings and then suspensions before an employee is discharged. … One of the advantages to adopting a corrective disciplinary approach is that it enables the parties to know where they stand with each other. An employee who is subjected to corrective discipline knows that after receiving a warning he may receive a suspension and that after a suspension he may be discharged it he repeats an offence. Further, where the employer maintains a system of discipline an employee may grieve when discipline is imposed, which prevents stale incidents from being resurrected on a subsequent occasion. In this type of system an employee is given the opportunity to clear his record through the grievance arbitration procedure at the time of the incident and if he is not successful he is put on notice that his past record will be held against him. However, if the employee’s misdeeds are tolerated the employee may form the opinion that the lax standards are all that is reasonably expected by management. The employee is then lulled into a false sense of security. In this type of situation the sudden tightening of standards followed by the discharge of the employee, if done without warning, is manifestly unfair since the employer has tolerated the relaxed standards which had been in existence and which the employee may have considered to be the norm. … The lack of warning to the employee that her job might be in jeopardy, in the circumstances of this case, may have lulled the employee into a false sense of security about her work performance. Some of the incidents described were treated by the witness for the hospital as being serious. If that were the case it is difficult to see why the employee was never formally disciplined, or at the very least warned that if her work performance did not improve that she would be discharged…. To have been as tolerant as it now appears may also lead to the reasonable inference that the standards expected of the registered nursing assistants were not as high as the hospital presently claims or that in context the incidents relied upon either were not so serious or else had a reasonable explanation. The lack of warning is also related to the lack of a culminating incident. That concept requires that there be some incident or “last straw” which enables the employer to invoke the employee’s past record as the basis for discharge. The culminating incident need not be major – it may only be of minor significance, but it permits the employer to say that he has had enough of the particular employee and need not tolerate him in the work force any longer, because the combination of past misdeeds together with the final incident is sufficient for the employer to discharge the employee.