You may remember reading about the case of the nurse at Cambridge Memorial Hospital whose 28-year career was cut short when Arbitrator Dana Randall upheld her discharge for stealing narcotics over a decade or more. When we blogged about that decision, my colleague Mike MacLellan astutely noted that the reasoning of the arbitrator seemed to run contrary to the general reasoning that has emerged in similar decisions regarding theft and addiction (many of which, unfortunately, seem to occur in the healthcare industry).
On appeal by the Union from Arbitrator Randall’s decision in Cambridge Memorial Hospital, the Ontario Divisional Court has also seized upon that unusual approach as grounds for overturning his dismissal of the grievance.
A brief recap of the facts
The Grievor was a Registered Nurse with more than 28 years of unblemished employment at the Hospital. A co-worker noticed that the Grievor 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 – the Grievor admitted to this and disclosed that she had “a problem”, then being given a disability leave to obtain treatment. Upon full investigation, the Hospital concluded that the Grievor had been stealing Percocets and Tylenol 3s from 2003 until 2014 and her termination for just cause occurred in 2015 after she had successfully completed rehabilitation treatment.
A brief recap of the law
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.
The Decision and Judicial Review
Notwithstanding that he found all three elements of the above test to have been met, in upholding her dismissal Arbitrator Randall drew upon a line of reasoning from a British Columbia arbitration case known as Gooding which allows for qualifiers or conditional analysis to be added. As a result – and similar to the decision on Gooding – Arbitrator Randall found that although the Grievor did suffer from addiction, the evidence showed that she could control the compulsion – she didn’t use drugs on shift, and didn’t take them away with her on vacation – and therefore that the Employer was allowed to treat a disabled employee the same way as any other employee when it comes to theft and serious misconduct.
However, the Divisional Court in the present case said that approach was a non-starter. Relying on the more recent (2017) Supreme Court of Canada decision in Elk Valley, the Divisional Court reiterated:
As Elk Valley made clear, there are no additional words or concepts that should be added to the test for prima facie discrimination. Establishing such things as "compulsion" is not part of the test. Thus, if these findings were why the Arbitrator did not find prima facie discrimination, his Award still does not "fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
Indeed, the Divisional Court did determine that the original arbitration decision was not reasonable and has overturned it, remitting the grievance to a new mutually agreeable arbitrator for a fresh hearing.
Takeaways for Employers
It will be interesting to see the determination of this case (assuming it goes forward) after the fresh hearing, as the Hospital will undoubtedly have to focus on different aspects – mainly, whether accommodating the Grievor in the circumstances would amount to undue hardship and also, one would think, the lack of honesty from the Grievor who:
- Only revealed her disability when caught; and
- Did not tell her Employer about previous incidents when first confronted with the evidence of her misconduct/theft (it was only after engaging in a more thorough review that the Employer found her theft of narcotics had been going on for many years, rather than the “several months” to which she admitted in her original disciplinary meeting).
While this may not be enough to uphold the termination altogether, it may be enough to ensure that she is not reinstated – these days, that may be the best employers in these circumstances can hope for given the developing case law.
Regardless, employers must recognize that the intersection of misconduct and addiction is a tricky place to maneuver, and requires a full assessment of the context and specific circumstances of every case. The experienced team at CCPartners is here to help you ask the right questions and develop the right responses to help you avoid swallowing the poison
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