An addiction that qualifies as a disability can mitigate an employee’s misconduct that would normally be just cause for dismissal
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 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 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 would have no hesitation in sustaining the discharge which was imposed. While she has an otherwise unblemished record of professional performance, the (employee) is a short service employee. Whatever her seniority, her misconduct was extremely serious and went to the heart of what was reasonably expected of her as a nurse by the hospital.”
However, because the nurse suffered an admitted addiction and since that addiction was causally connected to the misconduct at issue, the employer was required to demonstrate it was unable to accommodate her disability without undue hardship.
The ruling was largely affected by the nurse’s participation in the accommodation process. Since the employer’s investigation, the nurse obtained in-patient treatment and attended counselling. She had also remained drug- and alcohol-free for more than one year, which was supported by negative results from a lengthy period of supervised drug and alcohol testing.
Compare the results in this case to the decision in Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance), where arbitrator John Stout considered a similar situation and upheld a termination where the employee suffered from cocaine and marijuana dependence, pathological gambling, alcohol abuse and depression. In addition, the employee stole and sold property belonging to the employer. Arbitrator Stout found there was no connection between the misconduct and the disability other than the fact that the grievor used the money from the sale of stolen property to buy cocaine and, on that basis, upheld the termination.
The different results despite similar facts seem driven by the arbitrator’s views as to whether the misconduct was related to the disability. In other words, it appears that if the addiction or disability removes an element of volition from the employee’s conduct, accommodation may be required.
For employers, the analysis in London Health Sciences Centre appears to create a significant hurdle, or at the very least a further step, when determining if “just cause” for termination exists. Even when assessing an employee’s entitlement to monies under the Ontario Employment Standards Act, the issue of whether the conduct was “wilful” comes into play.
From a common sense perspective, however, it may be that the true lesson learned is that employers are under a greater duty to ask the right questions and embark on the proper inquiry to obtain as much information as possible, prior to termination, to determine if the misconduct in question is causally connected to an addiction or disability.
This is a more focused approach, but not an impossible one. And given that both the employee and the union are participants in the accommodation process, if they fail or refuse to participate, then a defence of addiction may not be available in the event of a termination.
For more information see:
• Ontario Nurses’ Association v. London Health Sciences Centre (Jan. 8, 2013), J. Hayes — Arb. (Ont. Lab. Arb.).
• Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance) (Aug. 6, 2011), John Stout — Arb. (Ont. Lab. Arb.).
Lorenzo Lisi and Fiona Brown practise employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com.