By Declan Gunovski | July 2, 2020
Note: This general legal information (not legal advice) applies to unionized workplaces, and is subject to change. You should obtain independent legal advice before taking any action which may impact your legal rights as there may be exceptions based on your specific circumstances. If you are an employee or an employer and need legal advice regarding workplace misconduct and addiction, an OA lawyer will be pleased to assist you with your situation.
When considering what discipline is appropriate for workplace misconduct, an employer must examine a variety of factors such as the workplace policy (assuming the workplace policies are reasonable and abide by the minimum standards of the Employment Standards Act). Employers can also consider the employee’s history of discipline, the collective agreement (if any), relevant legislation, the employment contract, whether the employee was given any additional coaching or training, etc. However, what happens when an employee breaks workplace rules or policy due to an addiction? What should an employer do?
In the 2019 Ontario arbitration case, The Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses Association, an arbitrator determined that an employer failed to meet its procedural duty to accommodate an employee when it terminated the employee for breach of workplace policy. The arbitrator ruled that the employee’s conduct was found to be connected to a protected ground under the Ontario Human Rights Code (the “Code”). A substance abuse disorder (addiction) will usually be considered a disability within the meaning of the Code. Disability is a protected ground under the Code, meaning there are legal consequences when a person has been discriminated against at work due to their disability. Therefore, a failure to accommodate an employee with a substance abuse disorder can result in a finding of discrimination against the employer pursuant to s.2 (1). The employer must fulfil both its procedural and substantive duty to accommodate an employee with a substance abuse disorder before considering disciplinary action. The employer’s procedural duty requires the employer to investigate what steps need to be taken to respond to an employee’s need for accommodation. The employer’s substantive duty relates to the reasonableness of the employer’s proposed accommodation or the reasons the employer gives for not providing an accommodation.
The Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses Association
The grievor, DS, was a Registered Nurse (“RN”) working at Sunnyside Homes, a long-term care home. Sunnyside Homes terminated DS’ employment for cause after it was discovered that she had been taking narcotics from patients and falsifying medical records. The employer cited DS’ breach of workplace policy, irreparable breach of trust, gross misconduct, that DS’ conduct posed a danger to the residents, and the failure of the DS to confess to her wrongdoing at an earlier point in time, as the reasons for her dismissal.
After the dismissal, DS sought treatment for her addiction and her case was brought before the College of Nurses of Ontario (“CNO”), who prohibited her from practicing until she was deemed fit to return to work by a medical professional. The CNO attempted to reinstate DS through an undertaking: if she agreed to the supervision at work, to continue her treatment, and to not administer or have access to controlled substances, she could return to employment. Sunnyside argued that accommodation could not be achieved without undue hardship because, in its view, many of the restrictions the CNO proposed were not possible. At the hearing, Sunnyside argued there was a risk of DS relapsing and using substances in the workplace. The employer cited the lack of available staff to observe DS, and that she would need to have unmonitored access to narcotics to perform her duties, which defeated the purpose of the undertaking. As a result, the union filed a grievance on behalf of DS and attempted to have her reinstated.
Employees have the onus to establish a case of prima facie discrimination, meaning the employee must show there is sufficient evidence to prove that their employer discriminated against them. The evidence must prove:
Both the employer and the union agreed the first two parts were satisfied, but they disagreed on the third.
Discrimination
The arbitrator found that Sunnyside had committed discrimination when it terminated DS. Even though the workplace policy (re stealing and falsifying documents) applied to all nurses, the arbitrator reasoned that the employer failed to consider the connection between the misconduct and DS’ disability when terminating her employment. The arbitrator reasoned that DS’ actions were for the sole purpose of satisfying her addiction. Therefore, to enforce workplace policies would have a discriminatory effect on DS because her disability interfered with her ability to comply with these policies.
Duty to Accommodate
The arbitrator also rejected the employer’s argument that it could not accommodate DS without undue hardship. The arbitrator found that the employer had violated its procedural duty under the Code to accommodate DS in two ways. First, the employer failed to make reasonable inquiries or take steps to accommodate DS’ substance abuse disorder when the troubling pattern of behaviour arose. Second, the employer did not attempt to modify working conditions and did not investigate what changes could be made to meet the CNO conditions.
Damages
The arbitrator ordered DS be reinstated. The employer was ordered to accommodate her to the point of undue hardship. Furthermore, the arbitrator ordered that DS was entitled to general damages for the employer’s breach in its procedural duty to accommodate.
While this decision is not binding on future labour arbitrators, this decision demonstrates the importance of being proactive in understanding their Code-related obligations. An employer may have a duty to accommodate despite the employee’s misconduct if the misconduct is connected to a substance abuse disorder. Employers should ensure they have up-to-date substance abuse policies and are aware of what options are available to them concerning employees with substance abuse disorders.
However, applying an employment policy for workplace misconduct (theft/falsifying documents) after the discovery of substance abuse disorder will not necessarily constitute a human rights violation. Whether a human rights violation has occurred or whether accommodation should be implemented should be assessed on a case by case basis.
A decision maker may consider factors such as:
There may be exceptions and consequences to applying a workplace policy without considering an employee’s need for accommodation before termination. You should obtain independent legal advice before determining what action to take concerning an employee who has engaged in misconduct and who has or may have a substance abuse disorder.
O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Declan Gunovski who will be completing his Placement with OA in the upcoming academic year.