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Reflections on Arbitration Cases re Workplace Theft of Drugs

Jun 30, 2011

Legal Scalesby Matt Walters

It is no doubt jarring to read that a nurse who was terminated for stealing narcotics while off-duty would be reinstated.  That was the outcome of the recent decision of the Ontario Arbitration Board in St. Mary’s General Hospital v O.N.A. (2010) 1.   This decision was made in spite of the arbitrator’s finding that the nurse in question caused considerable harm to her employment relationship; her actions had eroded the trust of her employer.  Her theft of narcotics prescribed to patients placed them in considerable danger, and could even have threatened their lives.  Such a ruling begs the question: what does it take to get legally fired in Canada?

There are many situations where employees have been legally terminated for using illicit drugs.  In Leonard v Human Rights Commission 2,  a Hibernia Oil Platform worker was terminated for failing a drug test.  This was found to be justifiable employee was not an addict and did not therefore have a disability within the meaning of the Human Rights Code. Further, Hibernia had a strict Drug and Alcohol policy that provided for immediate termination upon any evidence that a worker was under the influence.  The employee in this case not only read but signed that policy.

The situation in St. Mary’s was different because this was a nurse who was stealing narcotics from her employer for her own use.  However, dismissals have been upheld in that context as well.  In Capital Health (Royal Alexandra Hospital) and U.N.A. Local 33 (O’Neill) 3 , the Arbitrator agreed with the Employer’s position that there was no causal connection between the specific acts of theft and the nurse’s substance abuse problems.  In addition, in Capital Health it was not clear on the facts that the grievor suffered from substance dependency and may have simply been stealing drugs in order to treat her ongoing back pain, frequent migraines and stress in her personal life.The dismissal was upheld and the grievance dismissed.  The Arbitrator held there must be actual evidence of a medical condition that explains the acts of theft, and the burden of proof in such cases rests on the grievor.

Notwithstanding the Capital Health decision and others out of Alberta 4, decisions out of Ontario generally favour continued employment on a restricted basis, especially if it is established that the employee nurse is suffering from drug addiction 5 .

Therefore, the question is whether a nurse caught stealing narcotics is an addict.   In St. Mary’s, the grievor was undergoing outpatient medical treatment for drug addiction when she was caught stealing drugs from the hospital.  Further, the Union adduced, and the Arbitrator accepted, expert testimony stating that Ms. Harris was an addict and not simply a recreational user.  Once her addiction was so established, it was easy for the board to find that she suffered from a disability within the meaning of the Ontario Human Rights Code.  Her employer was therefore obligated to accommodate her disability to the point of undue hardship once a prima facie case of discrimination was established.    The Arbitrator found that the hospital made no attempt to accommodate Ms. Harris’ disability and terminated her because of the consequences of that disability.  This is prima facie discriminatory.  It may have been possible to place her in a position where she would be supervised and have no access to any narcotic drugs.  Indeed, the arbitrator ordered that she be reinstated but in such a supervised and restricted capacity, but the hospital took no such action.

The ruling makes no reference to any drug or alcohol policy in place equivalent to the one in Leonard.  While oil rigs have been recognized as safety-sensitive workplaces where strict drug and alcohol policies have been accepted, the health care context has not received the same treatment.  Indeed, given the treatment of addiction as a disease and a disability it appears that health care employers are expected to be more attuned to the challenges of alcohol and drug use.  Human Rights law requires accommodation be the employer’s first response for employees who fall within the prohibited grounds of discrimination.

It must always be kept in mind that accommodation is not a one-way street.  The employee must not only accept reasonable accommodations, but must also show efforts to minimize the impact of the disability.  This was illustrated in the experience of a nurse (Bergen) who had been terminated twice after being caught stealing narcotics.  Both of those terminations were reinstated at arbitration conditionally with a “Last Chance” agreement.  The second “Last Chance” agreement made it clear that, in the case of a further relapse, Mr. Bergen could be summarily terminated without recourse and all signatories acknowledged that the employer had accommodated him to the point of undue hardship.  Bergen changed employers, but not his work habits, and was again terminated from that position for stealing narcotics.  While he successfully grieved that dismissal at arbitration, but that decision was overturned on judicial review by the BC Court of Appeal 6.  The Court went on to find that Mr. Bergen was a drug addict, that the hospital’s decision to terminate him was discriminatory, but the hospital’s duty to accommodate him was lessened by Mr. Bergen’s failure to facilitate the accommodation process.  The Arbitrator was criticised for failing to consider Mr. Bergen’s employment history and his failure to address his previous relapse.  The Court also offers some support to the notion that an employer who drafts a strong anti-drug use policy can rely upon it as grounds for dismissal as it was held that the hospital could properly base Mr. Bergen’s dismissal on its requirement that employees abstain from drug use.  His termination was upheld.

The lessons a hospital employer should take from the Bergen cases are as follows:

  1. Any “Last Chance” agreement must be clear in its terms.  It must clearly lay out the consequences of a relapse and ensure that, if a decision to terminate is made, all parties agree that the employer has accommodated the employee to the point of undue hardship.
  2. A subsequent employer cannot rely on a “Last Chance” agreement between the employee and a former employer.  A new agreement will need to be drafted for each new employer.
  3. The employee’s employment history with regard to drug addictions and medical history relating to efforts to seek treatment can be taken into account when making the decision whether or not to terminate.  However, one must remain mindful of privacy legislation.  It is very likely that an employee would have to voluntarily disclose his/her employment and medical history before any employer could rely upon it.
  4. A drug and alcohol policy may be relied upon as grounds for termination.  However, it is likely not an appropriate first reaction to terminate an employee if that employee is a drug addict makes serious attempts to treat his/her condition.
  5. Arguably as important as the drug and alcohol policy is a clear statement of the seriousness of theft (particularly medications), the consequent destruction of the essential trust relationship between employer and employee, and that a breach of theft policies will result in discipline of the most severe nature, up to and including termination.

Returning to the situation in St. Mary’s, the Hospital’s immediate termination of Ms. Harris and failure to make any effort to accommodate her disability was really its undoing. The Arbitrator held that accommodation could have been achieved by suspending her without pay, making her return to work contingent upon her seeking treatment for her addictions and restricting her duties when she did return to work such that she would not have access to narcotics and be heavily supervised.  The Board took into account the long-term ramifications that termination under such circumstances would have on Ms. Harris’ future career.  When seeking future employment, Ms. Harris would have to disclose that she could not be placed in a position where she would be exposed to narcotics, which would drastically reduce her chances of being hired.   She had a better chance to successfully resume her career at St. Mary’s.  So reading the headlines is often not enough to understand the true impact of a decision.  A consideration of the full context is needed.

___________________________

1 199 LAC 4th 75
2 2011 NLTD 48
3 2008 CLB 8179
4 Such as U.N.A., Local 2 v Red Deer Regional Hospitla (1998), 220 AR 181 (QB)
5 Collingwood General & Marine Hospital and O.N.A (Smart) (Re), 2010 CLB 6391 and Kingston General Hospital and O.N.A 2010 CLB 11636
6 Kootenay Boundary Regional Hospital v B.C.N.U. (Bergen), 2006 BCCA 57, leave to appeal to SCC refused [2006] 2 SCR vi

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