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Disability and dishonesty

Security and trust concerns could be trumped by duty to accommodate when disability is cause of employee theft
employment law
A registered nurse at an Ontario long-term care facility was caught stealing narcotic drugs that were meant for treatment of residents. Shutterstock

By Jeffrey R. Smith

Certain workplaces require a high level of security to protect items that are valuable or should not be available to the public. Some workplaces involve jobs that require a high level of expertise and trust that employees will do the job correctly and responsibly. And still other jobs entrust employees with helping and protecting members of the public.

All of these types of workplaces involve high expectations of performance and trust, and employee misconduct can have serious consequences. But serious consequences don’t necessarily mean termination of employment — if there’s a disability involved that should be accommodated first.

When an employee steals something from an employer, it’s generally considered pretty serious stuff — it’s a breach of trust and the heart of the employment relationship, it shows an inability to work honestly without supervision, and hurts the employer’s financial bottom line. That’s why, in many cases, theft is just cause for dismissal, depending of course on what was stolen.

But this isn’t necessarily the case if there’s a reason for the theft that can be considered beyond the employee’s control, thereby lessening or eliminating the employee’s culpability.

This was the case a few years ago when a registered nurse at an Ontario long-term care facility was caught stealing narcotic drugs that were meant for treatment of residents. The nurse’s dishonesty reached multiple levels — she stole potentially dangerous drugs that were kept under lock and key, she altered records that were used to determine what drugs were removed and what were destroyed, and she affected the treatment of residents for whom the drugs were intended and didn’t receive the drugs because of her theft.

The nurse had become addicted to opioids in the wake of kidney stone surgery and had been stealing drugs from the care facility for her own use — including injecting them at work in the staff washroom — for two years.  The facility terminated her employment for patient abuse and breach of trust.

But guess what? The termination didn’t stick. The arbitrator noted that the nurse had been diagnosed with an opioid dependence disorder, which was characterised by compulsive actions and an inability to resist impulses to feed the addiction. This indicated the theft of the drugs was spurred on by the nurse’s drug addiction and not the result of independent, clear-headed thinking on her part. Since the nurse had an addiction, the addiction caused her to steal drugs, and she was fired for stealing drugs, the facility terminated her employment because of her addiction, said the arbitrator.

The employer in this case approached the situation purely from a misconduct and discipline approach without considering whether it could accommodate the nurse — and it was aware of her addiction as the nurse informed management of it during its investigation of the drug thefts.

Under human rights legislation, the employer had a duty to investigate accommodation options for the nurse’s accommodation — recognized as a disability. Its failure to do so violated the nurse’s human rights, said the arbitrator in ordering the nurse reinstated plus damages for injury to dignity, feelings, and self-respect stemming from the discrimination: Waterloo (Regional Municipality) and ONA (D.S.)., Re, 2019 CarswellOnt 443 (Ont. Arb.).

Trust and competence are essential for many types of jobs, especially those in the medical care field. When those are called into question for an employee, it may be difficult for the employer to consider keeping the employee on. But even when it seems obvious, seldom is termination a sure thing. Context is key and all variables should be considered — such as if the misconduct could be attributable to a disability such as an opioid addiction that is known to affect decision-making.

It may be very hard to keep an employee employed after such circumstances due to safety and security concerns, but a disability and the duty to accommodate means those concerns have to reach undue hardship levels to justify cutting the employee loose.

© Copyright Canadian HR Reporter, HAB Press. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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