Canadian Employment Law Today

the worker's confession that she had been misappropriating narcotics and falsifying medical records for the past two years. e worker admitted she had lied about the empty ampoule of hydromorphone in the staff bathroom on July 25, 2015, and didn't remember the August 26, 2016 in- cident. However, she didn't deny it and ex- pressed remorse for her behaviour. Sunnyside terminated the worker's em- ployment on Sept. 29, 2016 for patient abuse — including falsification of records for administration of medication — which it classified as "an irreparable breach of trust and gross misconduct." It also said ac- commodation wasn't possible as team lead- er RNs had to work independently without supervision at least part of the time and narcotics were always accessible. e Ontario Nurses Association (ONA) grieved the dismissal, saying the worker's addiction was a factor in her dismissal and accommodation should have been inves- tigated before resorting to termination. It noted the worker stopped using drugs on Sept. 1, 2016, and successfully completed a five-week inpatient rehabilitation program immediately after her dismissal, in which she had been diagnosed with "a severe opi- ate use disorder and a mild-to-moderate sedative-hypnotic use disorder." Impairment of worker's control e arbitrator referred to DSM-5 — the standard classification of mental disorders — which states opioids are a "class of drugs which are part of substance-related disor- ders" and these disorders include "a cluster of cognitive, behavioural, and physiologi- cal symptoms indicating that the individ- ual continues using the substance despite significant substance-related problems." DSM-5 further indicates that "impaired control, social impairment, and risky use are among the diagnostic criteria of sub- stance abuse disorder." ere was no doubt the worker suffered from such a disorder and Sunnyside was aware of it when she disclosed it to her employer, said the arbi- trator, adding that the disorder was "char- acterized by, among other things, com- pulsive behaviour and either a complete inability or a diminished capacity to resist the urge to engage in behaviour supporting her addiction." e arbitrator found there was no evi- dence the worker engaged in any miscon- duct before her addiction took hold in 2014, and in fact had shining performance reviews. It was only after she was in the throes of her addiction when colleagues began noticing strange behaviour and raised concerns about patient care. In ad- dition, her behaviour was consistent with her diagnosed substance abuse disorder. As a result, her termination for misconduct that was caused by her disorder meant the disorder was a factor in her termination — which proved prima facie discrimination, said the arbitrator. Since there was prima facie discrimina- tion, Sunnyside had to prove the worker couldn't fulfill the bona fide occupational requirement of her position because of her addiction. Sunnyside argued it would be undue hardship to employ the worker where drugs were accessible and working without supervision was required, but the arbitrator found it reached this conclusion without considering how accommodation might work, just how things were struc- tured normally. Sunnyside looked at the case as a just-cause case and never consid- ered the human rights aspect of the situa- tion, said the arbitrator. "e evidence of the employer's wit- nesses about whether the (worker) could be accommodated is based on how the work is currently organized and implemented," the arbitrator said. "ose opinions were formed and expressed without any analy- sis or thought about what changes in work organization or implementation might be required and might be possible to accom- modate the (worker)." As far as the breach of trust issue, Sun- nyside didn't inform the residents or their families of the misconduct, so Sunnyside's reputation was not affected. In addition, it was established that the worker's addiction contributed to the conduct that breached the trust, not her state of mind when she wasn't impaired. ough there is always the risk of relapse, the facility could impose conditions on the worker such as regular testing, having another nurse on duty to ad- minister medication, and other aspects of a treatment plan — conditions the College of Nurses Ontario had already imposed in order for the worker to work again as an RN and were part of the after-care of the worker's rehabilitation — could help detect a relapse. ere were also other RNs who could perform the role of team leader for a time, the arbitrator found. e arbitrator determined the worker was discriminated against because of her disability — an opioid substance abuse dis- order — and Sunnyside failed to meet its duty to accommodate her. Sunnyside was ordered to reinstate the worker with ac- commodation to the point of undue hard- ship and compensate her for loss of pay and damages for injury to dignity, feelings, and self respect for discrimination — the amount of which was to be negotiated be- tween the worker and Sunnyside. For more information see: • Waterloo (Regional Municipality) and ONA (D.S.)., Re, 2019 CarswellOnt 443 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2019 March 20, 2019 | Canadian Employment Law Today CREDIT: ESHANPHOT/SHUTTERSTOCK ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

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