A recent arbitration case continues to exemplify the difficulty faced by employers who must manage safety-sensitive workplaces and apply strict workplace practices in circumstances where an employee’s addiction and disability is connected to serious misconduct. In Regional Municipality of Waterloo (Sunnyside Home) v. Ontario Nurses’ Association, 2019 CanLII 433, consideration once more had to be given to what can and cannot be done to discipline and terminate an employee who has clearly engaged in egregious misconduct, but who asserts that the only reason for having engaged in the misconduct was due to an addiction. Does accommodation trump prevention in every case?
In Waterloo, the employee was a Registered Nurse who attended to nursing duties at the employer’s long-term care home. It was agreed that just over two years prior to the events that culminated in her termination, for cause, the grievor had become seriously addicted to opioids. Ultimately, to support her addiction, the grievor engaged in the theft of narcotics at the facility (which were regularly used to care for the residents at the home) and engaged in the use of those same narcotics at and during work “to get through each day.”
The grievor was ultimately discovered both stealing and using the drugs at work by a co-worker and was directed to attend at an investigation in respect of the employer’s concern. While initially not admitting to any addiction, the grievor ultimately (in advance of the investigation) admitted to her disability and confirmed that she had been misappropriating injectable narcotics from the workplace over the last two years for her own use.
Her misconduct went beyond just theft and use. She also repeatedly withheld drugs or failed to give residents correct dosages of injections prescribed, using all or the remainder for herself, and falsified documents to cover up her actions. Finally, she failed to follow proper procedures in the disposal of unused narcotics so as to appropriate these unused drugs for her personal use, also at and during work.
The employer concluded that it had just cause to terminate the grievor on the basis of her theft at work and falsification of medical documents. At arbitration, the employer asserted that the grievor’s disability was not a factor in its decision to terminate. She was terminated based upon her clear and serious breach of known workplace rules, not her drug dependency.
Ultimately, the arbitrator rejected the employer’s argument and reasoning. The arbitrator concluded that the addiction suffered by the grievor was a disability, protected by the Human Rights Code, and that the employer was not able to prove that the grievor had any control over her urges or choices when obtaining narcotics at work to satisfy this addiction. In summary, while the arbitrator agreed that the rule “don’t steal/use drugs at work” was itself non-discriminatory, the workplace rule could still be indirectly discriminatory when applied against those employees whose addiction (i.e. disability) precluded their ability to follow the rule.
In this instance, the arbitrator determined that there was a nexus between the grievor’s substance abuse and the misconduct. In effect, her addiction lead to the misconduct, rather than the misconduct feeding her addiction. And it is this ordering of cause and effect, almost unique in accommodation cases, which precluded the grievor’s termination of employment without considering whether she could be accommodated under the Code, a process that the employer had not undertaken, resulting in the employee’s full reinstatement.
This decision highlights the unenviable position employers are placed in when dealing with drug or other addictions, which impact upon employee behaviour. Management and Human Resources are tasked with ascertaining an employee’s self-awareness when they engage in serious misconduct that could cause injury to themselves, co-workers, others or the business. How is an employer supposed to weigh the actions of an employee who was aware enough, and in control of their actions, so as to be able to cover their tracks, purposely hide their activities, and knowingly fail to disclose their addiction until caught, but not be considered blameworthy for actually engaging in the misconduct (theft, falsification of records, driving while intoxicated, etc.) that maintained the deception.
Ultimately, the decision in Waterloo must give pause to any employer seeking to terminate an employee for cause where the employee discloses an addiction and such disability is potentially a factor in why the employee may have engaged in the conduct. In such cases, particularly those with a strong causal connection, an employer may have to consider engaging in an accommodation review prior to (and potentially in support of) a decision to terminate, even though the misconduct itself is worthy of immediate dismissal. This decision raises an unfortunate paradoxical situation for employers. Should they act solely on the misconduct or effectively concede a causal connection and engage in accommodation (and potential retention in employment notwithstanding the serious misconduct that would have resulted in any other employee being terminated)?