In a 2019 arbitration case, a Registered Nurse who was terminated for stealing narcotics and falsifying records was ordered reinstated to her job at a nursing home and awarded compensation because the nurse had a disability.
The nurse and her union acknowledged that the nurse’s actions were at the highest level of misconduct for someone in her position and amounted to just cause for termination. However, the nurse was struggling with an addiction. She was diagnosed with severe opioid use disorder and mild to moderate sedative-hypnotic use disorder.
The grievor, DS, was a full-time Registered Nurse and a Team Leader in Waterloo at Sunnyside Home Long Term Care Facility (“Sunnyside”). DS was trained to take care of patients in a unit with a total of 54 beds.
Between 2014 and 2016, DS engaged in repeatedly stealing narcotics and controlled medications for her own use. On many occasions, she falsified medical records to hide the narcotics she took. For example, she withheld from residents some of their documented medication so that she could instead inject herself. DS had also recorded that she had provided more pain medication to a resident than was actually received.
In August 2016, after reports of several incidents from coworkers, Sunnyside conducted an investigating and put DS on a paid leave. At the end of August, DS shared with a Sunnyside manager that she was being admitted to hospital to treat severe narcotic withdrawal symptoms. She also admitted to stealing and using drugs from Sunnyside.
One month later, she was terminated from her position.
In October 2016, DS successfully completed a 35-day in-patient drug treatment program. The College of Nurses of Ontario did not allow DS to practice again until June 2017, after which she could return if she continued to follow several conditions and treatment such as random urine testing, a prohibition against administering or having access to controlled substances, and being supervised at all times.
Sunnyside stated that they could not accommodate DS because it was not possible to work as a Registered Nurse or a Team Leader without access to the controlled substances as pain management is an essential part of resident care.
In order to find discrimination under the Ontario Human Rights Code (The “Code”), a claimant is required to show that a standard or requirement has an adverse impact based on a prohibited ground of discrimination.
The Code states that every person has a right to equal treatment with respect to employment without discrimination because of… disability.
Once discrimination is established, an employer may avoid liability by establishing that the standard or requirement in question is a bona fide occupational requirement (“BFOR”). Part of this assessment involves the employer demonstrating that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship upon the employer.
The duty to accommodate exists up to the point of undue hardship.
Sunnyside argued that it would suffer “undue hardship” if it reinstated DS, stating that it could not ensure that DS was constantly monitored or that another nurse would always be available to administer controlled substances to the patients.
Sunnyside argued that the BFOR of the job include having the trust of residents, their families, and other healthcare professionals, having access to controlled drugs, and the need to work independently.
The Arbitrator agreed with the union and the grievor in concluding that prima facie discrimination was made out.
Further, the employer failed to show that DS could not be accommodated without causing undue hardship. The Arbitrator noted that Sunnyside’s arguments for why DS could not be accommodated were formed without considering what changes in the work organization or implementation might be required to accommodate DS. Sunnyside did not use its resources to consider possible accommodations for DS so any assertion that it would be impossible to accommodate DS must be evaluated in this context.
The Arbitrator ordered that DS be reinstated to her position and that Sunnyside accommodate her. Further, he ordered that DS be compensated for loss to her injury to dignity, feelings, and self-respect.
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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