She blew the whistle to protect seniors at the Rosslyn. She paid a price.
Ashley Jenkins blew the whistle on alleged misconduct and negligence at the Rosslyn Retirement Residence.
Then she was fired by the temp agency that put her there in the first place.
Jenkins, a nurse hired to help bring the Rosslyn into compliance with provincial standards after it was evacuated due to a COVID-19 outbreak in May, is now speaking out in the hopes that her case shines a light on gaps and deficiencies in Ontario's whistleblower protections. She says she fell into a grey area" of lacking protections for staff in the seniors' care sector - and without a stronger safety net, workers will remain disinclined to call out negligent employers.
If whistleblower laws truly protected workers who speak out, 64 Rosslyn residents wouldn't have contracted COVID-19, she believes. And 16 wouldn't have died.
Staff don't speak out because they're afraid of the consequences, which, in her experience, are real, she says.
Other staff at the Rosslyn were aware of what was going on but no one was confident enough to come forward," Jenkins said. Why would you put, essentially, a moving target on yourself?"
The temp agency through which Jenkins was hired, Caring Hearts Healthcare Group Inc., disputes Jenkins' claim that she was fired for whistleblowing. CEO Vasile Whittaker says Jenkins didn't pass probation and was let go from the agency after failing to show up for work and due to trust issues." He was absolutely" supportive of her blowing the whistle on the Rosslyn, he said.
Jenkins said she was fired over the phone by a woman from Caring Hearts whose explanation for letting her go was that she seemed unhappy. She never missed a shift without giving proper notice, she said.
She filed a complaint with the Ontario Labour Relations Board against the temp agency, but in the interim, she's out of a job.
This is the second of a two-part Spectator series on Jenkins' experience at the Rosslyn and the larger issue of Ontario's whistleblower protections failing workers.
Why she spoke out - then and now
Jenkins says she didn't feel right staying silent about alleged misconduct she witnessed at the home, worried residents would return to the Rosslyn thinking it was safe.
It wasn't (safe) in any sense of the term," Jenkins said. Just from the standpoint of the vermin and the bedbugs alone."
She is acutely aware of the trust placed in caregivers by families with vulnerable loved ones. Her own father passed away from a rare blood disease when she was 15. That experience - one that showed the value of supportive nursing staff - inspired her to become a nurse.
I know how important it is to have a connection with health-care professionals," said Jenkins, now 32. You essentially become their family, too."
She spoke out for another reason: her career.
Jenkins is not yet licensed as a registered nurse in Ontario - she can't afford the credentials and she was working on an emergency-class licence allowed during the pandemic, which has since expired. She is, however, a dual Canadian-American citizen and is registered in New York state.
She worried that if she stayed silent and Rosslyn residents were readmitted, they might later fall ill or even die. Should that happen, questions might be raised about why she didn't speak out, in turn jeopardizing her chance at securing an Ontario licence, she said.
But she also knew she could face backlash from the Rosslyn and her temp agency, even losing her job - though she didn't think that would happen. She decided it was worth it if it meant keeping residents safe.
But now, since-fired and unemployed, she's speaking out again to shine a spotlight on gaps in whistleblower protections, particularly when it comes to vulnerable and precariously employed workers, and the grey areas" of whistleblowing protections into which they fall.
Whistleblower protections
Ontario's Ministry for Seniors and Accountability says the Retirement Homes Act (RHA) has strong protection" for whistleblowers.
The RHA states: No person shall retaliate or threaten to retaliate against another person, whether by action or omission, because any person has disclosed anything" to the Retirement Homes Regulatory Authority (RHRA), a self-regulating body that administers the act. Retaliation includes dismissing, suspending or disciplining a staff member. The RHA protections extend to temp workers hired on contract to work for retirement homes and laws apply to temp agencies, the ministry says.
Similar protections exist under the Long-Term Care Homes Act.
The Ministry for Seniors and Accountability says if someone speaks out and is penalized, they can go through binding arbitration with their union. If they don't have a union, the person can make a complaint to the Ontario Labour Relations Board.
Jenkins currently has a complaint before the board.
Protections exist, but that doesn't mean whistleblowers won't face consequences.
It absolutely does have risks," Graham Webb, a lawyer and executive director of the Advocacy Centre for the Elderly, says of whistleblowing. It's very intimidating and not without cost to the complainant."
While recourse exists, processes for arbitration and complaints can take time, Webb says.
While that time is passing the complainant may be out of work," he said. They might be blacklisted."
Even when the complaint is addressed, the employer may still argue there was another reason for termination. If litigation becomes a possibility, the complainant might not be able to afford a lawyer, Webb said.
Natalie Mehra, executive director of the Ontario Health Coalition, says a pervasive culture of fear" around speaking out exists in long-term care and retirement homes. Staff are sometimes asked to sign confidentiality agreements, which can lead them to believe whistleblower protections won't apply to them. Some aren't aware protections exist in the first place. And they're scared of getting sued.
Workers who are precariously employed or otherwise vulnerable are even less likely to speak out, Mehra says. The risk - and cost - of losing a paycheque is too high.
As a result, abuse and misconduct can go unchecked.
If nobody can speak out publicly at all, then the conditions that are unsafe in the homes continue to be kept secret and hidden from public scrutiny year after year after year," Mehra says.
Mehra believes that if stronger whistleblower protections were in place, combined with provincial action, the province wouldn't have a COVID death toll of nearly 2,000 long-term care residents.
Lives would have been saved had there been the ability to speak out," she said.
The solutions
Webb wants to see workers better educated on whistleblower rights and protections. Agencies like his own and the RHRA could do more" on the education front, he says.
In response, the RHRA said it works to ensure licensees and operators are aware of their obligations under the law.
Under the Retirement Homes Act, licensees must ensure that staff receive training on a number of different subjects, including the whistleblowing protections afforded to staff when they report information to the RHRA," said Farrah Bourre, an RHRA spokesperson. The RHRA also makes it clear on our public website that anyone who makes a complaint to the RHRA is protected from retaliation."
Mehra wants to see the province take the lead on implementing stronger whistleblower protections. Specifically, she wants a ban on confidentiality agreements that lead staff to believe they can't whistleblow; a government crackdown on long-term care and retirement home operators who use coercion" or firings" to silence workers (with homes' licences stripped if such tactics are used); and a guarantee that staff fired for whistleblowing have the right to an expedited hearing and be paid until a decision is made.
In response, the Ministry for Seniors and Accountability pointed to the RHA. The act prohibits retaliation even if the disclosure was made maliciously or in bad faith" and prohibits homes from discouraging whistleblowing. In terms of legal action, none can be taken against a whistleblower unless the person acted maliciously or in bad faith," the act states.
As for Jenkins, she has no regrets about speaking out. She's saddened she wasn't around to do it sooner.
Unfortunately, 16 people passed away," she said. (But) those that are still living from the Rosslyn, they're not going back to the Rosslyn right now. And I think that's probably afforded them a longer life ... I hope."
Katrina Clarke is a Hamilton-based reporter at The Spectator. Reach her via email: katrinaclarke@thespec.com