Rhonda Levy, Sari Springer

Arbitrator reinstates nurse who misappropriated narcotics from patients for her own use and falsified records to cover it up

Earlier this year, a labour arbitrator rendered a decision in Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurse’s Association, 2019 CanLII 43 (ON LA), that sends a clear warning to employers in Ontario about how to handle employees with substance abuse disorders.

The decision clarified that when employees breach workplace rules because they suffer from a substance abuse disorder—a disability under the Ontario Human Rights Code (Code)—employers must satisfy their procedural obligation under the Code to consider how the employees might be accommodated. Failure to do so can result in the employer being found to have engaged in prima facie discrimination, and the employer may be required to pay general damages to the employee for breach of its procedural duty to accommodate.

Background

A long-term care facility terminated a Registered Nurse and Team Leader (RN) for cause following an investigation concluding that over a two-year period, she misappropriated narcotics for her own improper use and falsified medical records to cover up each theft; in fact, the RN repeatedly withheld from residents some of their medication so she could inject it herself. The grounds for the RN’s dismissal were patient abuse (falsification of records indicating that residents received narcotics when they had not), an irreparable breach of trust, and gross misconduct.

Following her termination, the RN entered an inpatient rehabilitation program and continued treatment after her discharge. The College of Nurses of Ontario (CNO) prohibited her from returning to practice for a period of time, but she then entered into an undertaking and agreement with the CNO regarding the conditions under which she could return to practice. Among other things, the RN undertook to follow treatment and monitoring recommendations, not to administer or have access to controlled substances in her nursing practice, and to work only in a setting where her performance and behavior could be directly observed. The Ontario Nurses Association grieved the RN’s discharge and sought her reinstatement.

The Decision

Prima Facie Discrimination

The arbitrator conducted a human rights analysis to consider whether this was a case of prima faciediscrimination. The parties agreed that two required factors had been proven: (a) the RN had a characteristic protected under the Code: substance use disorder, a disability; and (b) she suffered adverse treatment with regard to employment or a term of that employment: termination. The only factor in dispute was whether the RN’s disability was a factor in her adverse treatment.

The arbitrator decided that prima facie discrimination had occurred. In taking this position, he noted that substance use disorder is a mental disorder and its symptoms include compulsive behavior and a complete or diminished capacity to resist the urge to engage in behavior that supports the addiction. The RN’s misconduct was consistent with the behavior of persons suffering from substance abuse disorder, and there was a nexus between the RN’s disability and her conduct. Finally, to apply valid workplace rules to the RN would have a discriminatory effect because her disability interfered with her ability to comply with them.

Duty to Accommodate

Next, the arbitrator concluded that the employer had violated its procedural duty to accommodate. It had not satisfied its onus of demonstrating that it could not accommodate the RN without suffering undue hardship because it failed to: (a) give any thought or consideration to accommodation issues; (b) make inquiries of the RN despite troubling reports and observations about her appearance and behavior, which should have alerted it to the possibility that she was suffering from a disability; and (c) evaluate what changes in work organization or implementation might be required and possible to accommodate the RN.

Remedy

The arbitrator ordered the RN to be reinstated forthwith and accommodated to the point of undue hardship. In addition, he ordered the RN to be compensated for the breach of the procedural duty to accommodate by way of a general damages award following the outcome of the accommodation process.

Bottom Line for Employers

In Ontario, when employees breach workplace rules because they suffer from addiction/substance abuse disorder, employers have a procedural duty to consider whether the needs of the employee could be accommodated without undue hardship to the employer. This duty requires the employer to evaluate what changes it can make within the organization to accommodate the employee. In addition, it requires the employer to make inquiries of a non-disclosing employee upon receiving troubling reports and observations about appearance and behavior, which may indicate that the employee is suffering from a disability. Employers must keep in mind that their procedural duty to accommodate continues to exist even when the employee engages in serious misconduct that may justify dismissal. Failure to satisfy the requirement to assess whether the employee can be accommodated can result in the employer’s being found to have engaged in prima facie discrimination, and the employer may be required to pay general damages to the employee for breach of its duty.

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