THE EMPLOYERS' EDGE
Bad Medicine: Arbitrator Upholds Termination of Drug-Addicted Nurse
An Ontario arbitrator has upheld the termination of a nurse, “SM”, on the basis that she was stealing narcotic drugs from her employer and patients at Cambridge Memorial Hospital. This decision is particularly timely given what health and government officials refer to as an “opioid crisis” in our society, and it gives employers a better indication of how to proceed in similar unfortunate circumstances. You can read the full decision in Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305 (ON LA), here.
SM was a Registered Nurse with more than 28 years of unblemished employment at the Hospital. In fact, she was being prepared for a promotion to a management position at the time that her personal problems came to light. A co-worker noticed that SM was taking Percocets both from the Hospital’s inventory directly, and also diverting pills prescribed to patients by, for example, giving them only one of two prescribed doses, and pocketing the second for herself. Upon full investigation, the Hospital concluded that SM had been stealing Percocets and Tylenol 3s from 2003 until her termination for just cause in 2014.
The Ontario Nurses’ Association (“ONA”) was the Union representing the grievor. It grieved the termination on the basis that SM was suffering from an opioid addiction, and that the proper response was to accommodate SM to the point of undue hardship. By the time this matter came to hearing, SM had completed a rigorous rehabilitation program, was maintaining a drug-free existence, and had admitted and shown contrition for stealing Percocets since 2011. However, and despite ironclad evidence that was not contested by the Union, SM refused to acknowledge that she had been stealing any drugs prior to 2011 or that she had ever stolen Tylenol 3s.
At first glance the arbitrator’s ultimate decision to deny the grievance and uphold the termination seems contrary to the precedent case law in similar contexts. Nurses have typically been reinstated to their employment with conditions if the arbitrator is satisfied that: 1) the employee suffered from an addiction (which is considered a disability for legal purposes); 2) that there was a causal link between the addiction and the misconduct; and 3) that the employee has acknowledged their addiction, been successfully treated for their addiction and is not likely to reoffend. Arbitral jurisprudence holds, briefly speaking, that holding an employee suffering from an addiction to the same standard of healthy employees constitutes prima facie discrimination. So why were the Union and SM unsuccessful in this case?
The arbitrator paid particular attention to a line of case law originating from British Columbia which holds that termination of an employee for a criminal act is not discriminatory, even when they suffer from an addiction. The theory is that criminal conduct, such as theft, is presumptively remedied by terminating the employee, and addiction cannot be used as a defence to criminal behaviour. I am not entirely sold on this analysis, but I would agree that if the facts of a particular case cannot establish that the employee’s addiction caused her criminal misconduct, the employer ought to be free to terminate her.
The arbitrator in the instant case was convinced that even though SM never would have stolen the drugs but for her addiction, the addiction did not cause her to steal the drugs. For instance, SM testified that she could abstain from taking drugs while she was on vacation. She did not need to be on drugs while she was working, and in fact never was impaired at work. She did not suffer physical withdrawal symptoms while being treated for her addiction. And finally, she did not own up to all the drug theft that she undoubtedly engaged in. In short, her addiction was not compulsive such that stealing drugs from work was a symptom of her disability. She had the ability to come clean to the employer about her disability and seek treatment and accommodation without sinking to the level of drug theft. Her failure to do so was sufficiently culpable that her disability could not be raised as a defence to her misconduct.
And so, a 28 year registered nurse with an exemplary work history and who was in line for a promotion, was terminated from employment notwithstanding the fact that she had a drug addiction disability. What does this mean for employers? Well, it is a clear indication that not all employees can raise their disability as a defence to discipline for workplace misconduct. It should also be a clear indication to arbitrators that they ought to engage in a thorough enough analysis of a disability to determine the level of the employee’s culpability.
Assessing next steps when dealing with disabled employees, and particularly those with substance abuse conditions, is a tricky proposition that must be handled delicately. The professionals at CCPartners have extensive experience in advising employers on all manner of disciplinary and accommodation actions, as well as representing employers in legal proceedings concerning treatment of employees with disabilities and addictions.