Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2019 14 NEWS / EMPLOYMENT LAW Tylenol 3, Percocet, hydromor- phone and morphine, and had been misappropriating injectable narcotics from Sunnyside for her own use for the past two years. Her addiction had developed in 2014 from taking prescribed Percocet for the pain from her kidney condition, which was when she started taking narcot- ics from work. e worker explained that her misappropriation included fail- ing to give residents the correct dosages of medication that had been documented or withhold- ing medication altogether so she could inject herself. She also falsely recorded items on the narcotic record and the residents' information to cover up what she was doing, and some- times kept extra amounts of liquid narcotics instead of wasting them. Sunnyside reviewed the nar- cotic record and the charts of residents under the worker's care from Aug. 1 to Aug. 24, 2016, and discovered six incidents where the worker recorded removing hydromorphone or morphine from the medication room but didn't record administering the drugs on the resident's charts. e worker had also been mis- appropriating narcotics for her own use and falsifying medical records for the past two years. e worker admitted she had lied about the empty ampoule of hydromorphone in the bathroom, and didn't remember the August 26, 2016, incident. However, she didn't deny it and expressed remorse. Sunnyside terminated the work- er's employment on Sept. 29, 2016, for patient abuse — including fal- sifi cation of records for adminis- tration of medication — which it classifi ed as "an irreparable breach of trust and gross misconduct." It also said accommodation wasn't possible as team leader RNs had to work independently without supervision at least part of the time, and narcotics were always accessible. e Ontario Nurses Associa- tion (ONA) grieved the dismiss- al, saying the worker's addiction was a factor in her dismissal and accommodation should have been investigated before ter- mination. It noted the worker stopped using drugs on Sept. 1, 2016, and successfully completed a fi ve-week inpatient rehabilita- tion program immediately after her dismissal, in which she had been diagnosed with "a severe opiate use disorder and a mild- to-moderate sedative-hypnotic use disorder." Arbitrator weighs in e arbitrator referred to DSM-5, the standard classifi cation of men- tal disorders, which states opioids are a "class of drugs which are part of substance-related disorders" and these disorders include "a cluster of cognitive, behavioural, and physiological symptoms indi- cating that the individual contin- ues using the substance despite significant substance-related problems." DSM-5 further indicates that "impaired control, social impair- ment, and risky use are among the diagnostic criteria of substance abuse disorder." ere was no doubt the worker suff ered from such a disorder and Sunnyside was aware of it when she disclosed it, said the arbitra- tor, adding that the disorder was "characterized by, among other things, compulsive behaviour and either a complete inability or a diminished capacity to resist the urge to engage in behaviour sup- porting her addiction." e arbitrator found there was no evidence the worker engaged in misconduct before her addiction took hold in 2014 and, in fact, she had shining performance reviews. It was only after she was in the throes of her addiction when col- leagues began noticing strange behaviour and raised concerns. In addition, her behaviour was consistent with her diagnosed substance abuse disorder. As a result, the termination for misconduct that was caused by her disorder meant the disorder was a factor in her termination — which proved prima facie discrimina- tion, said the arbitrator. erefore, Sunnyside had to prove the worker couldn't fulfi ll the bona-fi de occu- pational requirement of her posi- tion because of her addiction. Sunnyside argued it would be undue hardship to employ the worker where drugs were acces- sible and she was working with- out supervision, but the arbitra- tor said it reached this conclusion without considering how accom- modation might work, just how things were structured normally. Sunnyside looked at the case as a just-cause case and never con- sidered the human rights aspect of the situation, said the arbitrator. " e evidence of the employ- er's witnesses about whether the (worker) could be accommodated is based on how the work is cur- rently organized and implement- ed," said the arbitrator. " ose opinions were formed and expressed without any analy- sis or thought about what changes in work organization or imple- mentation might be required and might be possible to accommo- date the (worker)." As far as the breach of trust is- sue, Sunnyside didn't inform the residents or their families of the misconduct, so Sunnyside's repu- tation was not aff ected. In addi- tion, it was established that the worker's addiction contributed to the conduct that breached the trust, not her state of mind when she was clean. ough there is always the risk of relapse, the facility could im- pose conditions on the worker such as regular testing, having an- other nurse on duty to administer medication, and other aspects of a treatment plan — conditions the College of Nurses Ontario already imposed in order for the worker to work again as an RN that were part of the after-care of the work- er's rehabilitation — could help detect a relapse. ere were also other RNs who could perform the role of team leader, said the arbitrator. e worker was discriminated against because of her disabil- ity — an opioid substance abuse disorder — and Sunnyside failed to meet its duty to accommodate her, said the arbitrator. Sunnyside was ordered to re- instate the worker with accom- modation to the point of undue hardship 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 between the worker and Sunnyside. For more information, see: • Waterloo (Regional Municipal- ity) and ONA (D.S.)., Re, 2019 CarswellOnt 443 (Ont. Arb.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www. employmentlawtoday.com. Disorder a factor in termination: Arbitrator NURSE < pg. 5 Just 10 per cent fi ll most open- ings using workers already on the corporate payroll. As a result, HR is in a tough spot, said Vickers. "It's hard to take somebody out of a position that's doing well," he said. "Managers don't want HR to come in and poach their bet- ter people and stick them some- where else." But there's some evidence to in- dicate companies are trying to get better at fi guring out where their internal skill sets are, said Vickers. "But, of course, you end up in the same conundrum, right?" "Because if you move some- body out of a current position to fi ll another internal position, somebody's got to fi ll that other position. It ends up being a cas- cade eff ect," he said. However, 35 per cent of respon- dents said lack of advancement was the primary reason for em- ployee departures, compared to 30 per cent who cited inadequate compensation. It's a hard nut to crack, especial- ly with companies fairly fl at these days, operating without huge hi- erarchies, said Vickers. "There aren't as many levels within an organization; sometimes it's hard to give people promotions, even when they deserve it." e other factor is that compa- nies are not very good at career advancement programs, he said. " ey're not very systematic at this; they tend to be a little more ad hoc at this than they should be." Employers have to get out of the mindset that career advancement means going up the ladder or lat- tice, said Sterling. "I look at career growth — it's all about the ability to expand my contributions, to expand my span of control, to expand my visibility in the organization. And that doesn't mean through a bigger title or through more signifi cant leadership opportu- nities," she said. " e sooner that organizations can grab onto that philosophy and build a career framework infra- structure that supports that, the greater that they're going to have retention… not just with the mil- lennial generation, but other gen- erations as well because people do want to move more quickly and more frequently into other roles, and so we've got to look outside of the traditional career frameworks and paths." Employers 'more ad hoc' with career advancement HR TRENDS < pg. 2 A registered nurse was fired for misconduct at Sunnyside Home, a long-term care facility in Waterloo, Ont. Credit: Google Street View

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