Subject to a last chance agreement after being caught attempting to steal morphine from the workplace, a nurse was terminated after local police notified her employer that she had been found in her car in an intoxicated state numerous times after apparent abuse of inhalants.
While the grievor drowned in unexplained circumstances prior to the proceedings, the union grieved the termination on behalf of her estate for the benefit of her infant child. The union argued that the termination was without just cause and in violation of both the collective agreement and the Ontario Human Rights Code.
Shortly after being hired as a part-time nurse in 2005, T.P. made contact with the hospital’s occupational health services department seeking help for depression. Later, she was caught attempting to palm an ampoule of morphine.
In subsequent disciplinary interviews, T.P. disclosed a history of substance abuse. As a result of consultations between the union and the employer directed at accommodating T.P.’s disability, the parties fashioned a last chance agreement. T.P. was to participate in in-patient treatment and on-going after care. She was to commit to total and sustained abstinence and to agree to random blood and urine testing. It was agreed that any breach of the two-year agreement by T.P. would result in her immediate termination.
T.P. participated in counselling programs and submitted to the mandated random drug screenings. By September 2006, T.P. had returned to work, gained full-time status, and had become pregnant and given birth.
Inhaling aerosols
Unbeknownst to the employer, while on parental leave, T.P.’s condition deteriorated. A worsening domestic situation and psychiatric issues coincided with a relapse into substance abuse — in this case “huffing” or the inhalation of solvents or aerosols. T.P. returned to work at the conclusion of her parental leave in January 2008 under the terms of her last chance agreement, which had been extended.
T.P.’s increasingly out-of-control addiction began to draw the attention of child welfare authorities and police as a result of her numerous emergency room visits and being found unconscious in her car by authorities. The employer, however, was still in the dark because T.P.’s drug screens did not pick up on aerosols.
With the knowledge that she was a nurse and for concern over the risk she presented to patients, the police took legal advice concerning the privacy issues involved and ultimately decided to inform the employer that they had found T.P. in an intoxicated state on multiple occasions.
T.P. was called into a meeting and notified that she was in breach of the last chance agreement and terminated. T.P. was found dead about six weeks later.
Before the Arbitrator, the union argued that the last chance agreement was discriminatory because the standard of complete abstinence was an impossible standard to meet. The union said too that the employer had failed to take the entirety of T.P.’s disability — including her psychiatric problems — into account.
Absolute prohibition was appropriate
The language of the last chance agreement was not uncommon, the Arbitrator said, and the insistence on complete abstinence was appropriate and “quite probably … essential.”
The union had participated in negotiating the agreement and all parties had signed it, the Arbitrator said.
“[N]either the Employer in proposing the terms of those agreements, nor the Union in agreeing to them, was engaging in an act of discrimination. On the contrary … they were engaging in two-thirds of the essential elements of accommodation of addictive disability, the commitment of the Employer and the Union respectively to support and assist rehabilitation; the other one-third is the responsibility of the individual employee to make every effort to live up to the undertakings in the last chance agreement.”
However tragic the causes and outcomes of her behaviour, “it cannot be excused by reference either to the collective agreement or the Ontario Human Rights Code,” the Arbitrator said. Based on what it knew at the time it terminated T.P., the employer was entitled to conclude that the accommodation it had offered had failed. The employer was also entitled to conclude that the institutional cost of maintaining the employment relationship had reached the level of undue hardship. The termination was justified, the Arbitrator said.
Reference: Kingston General Hospital and Ontario Nurses’ Association. Kenneth P. Swan — Sole Arbitrator. Carolyn Kay for the Employer and Colin Johnston for the Union. April 22, 2010. 31 pp.
