Organizations in the health, children’s and developmental services sectors have reacted with dismay to the recent arbitration decision involving a nurse who stole drugs from patients and then falsified patient records to cover her tracks. In Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA), the arbitrator considered whether the dismissal of this employee should be upheld. The arbitrator found that not only was the dismissal unjust, but that it also constituted unlawful discrimination on the basis of addiction (a disability protected under the Ontario Human Rights Code (Code)). The employee was ordered reinstated with compensation for any and all losses and damages. This case serves as a very expensive reminder that employers are obliged to accommodate addiction, even in the face of gross misconduct and even where the employee’s position requires a high degree of trust or involves vulnerable people.
The full details of this case are below:
The grievor (DS) worked with the Region of Waterloo’s Sunnyside Home Long-Term Care Facility (Sunnyside) as a Registered Nurse and Team Leader. After years of excellent service, DS began displaying suspicious behaviour at work and was placed on an administrative leave pending an investigation into her behaviour. During this period, DS informed her manager that over the previous two years, she has been stealing narcotics from Sunnyside for personal use, falsifying patient records to cover up her actions, and that she was being admitted to a hospital for severe withdrawal. In response, Sunnyside terminated her employment for just cause, which gave rise to the grievance. On admission to a treatment program, DS was diagnosed with severe opioid use disorder and mild to moderate sedative-hypnotic use disorder.
The arbitrator considered the parties’ expert medical evidence and concluded that substance use disorders—such as those suffered by DS—are a “mental disorder characterized by, among other things, compulsive behaviour and either a complete inability or a diminished capacity to resist the urge[s] to engage in behaviour supporting [the] addiction.” DS’s drug addiction thus received protection under the Code.
The arbitrator held that Sunnyside failed to discharge its procedural duty to accommodate, as it did not give any thought or consideration to accommodation issues and did not make any inquiries in the face of circumstances which ought to have made it aware that DS might have an addiction. Indeed, one of Sunnyside’s witnesses testified that she was only beginning to understand that addiction was a disability covered by the Code. The arbitrator further held that Sunnyside’s position that DS could not be accommodated without undue hardship was based on how its work was organized and implemented at the time and did not reasonably consider what changes might be possible to accommodate DS.
The arbitrator ordered that DS be reinstated immediately and that Sunnyside accommodate her to the point of undue hardship. Moreover, the arbitrator held that DS was entitled to be compensated for any losses, including general damages for injury to dignity, feelings and self-respect (however, this issue was remitted to the parties).
This decision makes clear that employers should take a proactive approach to accommodation issues, inquiring into an employee’s need for accommodation where appropriate. If an employee requires accommodations, the employer should be sure to canvass possible accommodation solutions with the employee and should consider how work might be changed to accommodate the employee.
PooranLaw will explore this case further, as well as recent developments as they relate to drug use in the workplace, including medicinal and non-medicinal marijuana, in our upcoming Webinar.
Be sure to register for this free webinar here.