On January 10, 2019, Arbitrator Larry Steinberg released a decision reinstating a nurse who had violated numerous workplace policies, committed theft and falsified medical records.
The grievor worked on a full-time basis as a Registered Professional Nurse at a long-term care facility. She had been employed with the employer for approximately 14 years. The grievor had a strong performance record, until she began to suffer from a kidney condition which necessitated the use of narcotics to control the pain, which led to an addiction to pain killers. The grievor testified that she “diverted” narcotics from the employer’s premises in order to get through each day at work. Following an investigation, the employer terminated the grievor’s employment on the basis of falsification of records, breach of trust and gross misconduct. She had misappropriated narcotics for her own improper purpose over a two-year period, while at the same time falsifying medical records in conjunction with each theft.
The Union grieved the termination and asserted that the employer had discriminated against the grievor based on her addiction. The employer argued that the addiction was not a factor in the decision to terminate the grievor’s employment. After the termination, the grievor entered a 35-day treatment facility to address her addiction. She was successfully discharged and completed the program. She was also following an outpatient treatment plan. The College of Nurses of Ontario (CNO) had prohibited the grievor from the practice of nursing, but reinstated her after the completion of her treatment under various conditions. Medical evidence at the arbitration confirmed that the grievor had a “…significantly diminished capacity to resist urges to engage in behaviours that supported her addiction.” Some evidence also suggested that there was a risk of relapse.
The arbitrator ultimately concluded that there was a nexus between the termination and the grievor’s substance abuse disorder, and was therefore, prima facie discriminatory. The arbitrator stated that compulsive behaviour and impaired judgment are symptoms of the mental illness and substance abuse disorder. She testified and it was accepted by the arbitrator that “she could not stop”. The arbitrator rejected the argument that the trust required for the position had been irreparably harmed or that accommodation could not be provided.
The employer argued that the grievor could not be accommodated, given that her position required the trust of residents, their families, and other healthcare professionals, many of whom had been deceived by the grievor, and that having independent access to controlled drugs (including administering drugs to patients) was too great a risk. The employer argued that it had a legitimate business interest in protecting residents and providing quality care. The employer argued that the risk of relapse was too great a risk for the employer and its patients. The arbitrator disagreed and held that the employer had not accommodated the grievor to the point of undue hardship.
While we disagree that all of the actions by the grievor were explained by the addiction (for example, she could have reported her addiction immediately and taken any number of steps to ensure that patient care was not compromised as it was), the case is unique in two respects: (1) following the termination, the grievor immediately sought treatment for her addiction to address the substance dependency issues; and (2) the CNO as a professional regulatory body was actively involved in terms of ensuring that the grievor had recovered and was fit to practice. The CNO imposed significant conditions on her practice, but ultimately determined that she was fit to practice. The arbitrator put a significant weight in these two factors in support of reinstatement.