CELT November 13 2013:celt 467.qxd 13-10-25 10:56 AM Page 3
CANADIAN EMPLOYMENT LAW TODAY
Misconduct and addiction:
When is cause enough?
An addiction that qualifies as a disability can mitigate an employee's
misconduct that would normally be just cause for dismissal
| BY LORENZO LISI
AND FIONA BROWN |
EMPLOYERS understand that establishing just cause as a basis for termination
of employment is a difficult task. The threshold is
high and often courts and
JUST
administrative tribunals
may determine that what
looks like clear cause is actually non-culpable behaviour.
This was the case in the recent arbitration decision of Ontario Nurses' Association v. London Health Sciences
Centre, where arbitrator James Hayes
determined that a discharge of a nurse
for theft could not be sustained because
the misconduct was causally connected
to her addiction.
The employee was a nurse at the London Health Science Centre in London,
Ont., for two-and-a-half years. It was discovered she stole narcotics for her own
personal use, falsified
records and attended at
work while impaired. This
CAUSE
misconduct proceeded on
several occasions in the
course of one year. Following an investigation, the employer discharged the
nurse from her employment and the
union subsequently grieved the discharge.
At the hearing, there was evidence on
the nurse's background and, in particular, that she had suffered from various
drug addictions since the age of 12.
Arbitrator Hayes upheld the grievance and ruled that where the
employee's misconduct is causally connected to an addiction, just cause is not
the only relevant analysis. Rather, upon
establishing just cause, employers may
then be required to demonstrate they
are unable to accommodate the
employee's disability up to the point of
undue hardship.
Arbitrator Hayes acknowledged the
nurse's misconduct would warrant just
cause for other employees. Specifically,
he stated:
"If this case were to be examined
strictly from the point of view of a typical just cause for discipline analysis, I
Continued on page 9
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Published by Canadian HR Reporter, a Thomson Reuters business 2013
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