Addiction & An Employer’s Duty to Accommodate

Written on behalf of Peter McSherry
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The Divisional Court has released a decision that will have an impact on future arbitral and common law cases considering an employee’s addictive behaviour and related misconduct.

In this case, the employee was an R.N. employed by a public hospital. She was observed by a co-worker taking medications from the hospital inventory and also using similar pain killer drugs which had been intended for a patient, thereby reducing the dosage the patient received in contradiction of the prescribed amount.

When accused of the wrongdoing, the employee confessed her sins, admitted to an addiction for which she was then given leave to obtain treatment.

Upon further investigation, the employer had discovered that this conduct had been ongoing for many years, from 2003 to 2014. Upon the completion of her treatment, she was terminated for just cause.

The termination decision was grieved unsuccessfully. The arbitrator’s decision was, however, set aside by the Divisional Court.

The Issues

It is clear that an addiction is a disability recognized as a protective ground in human rights law.

Where the employee acknowledges the conduct requires treatment and does agree to take such remedial action and does so successfully and shows that there is little chance of such repetitive behaviour, there does exist the likelihood of a legal remedy to counter the termination.

The employee must also show that there is a causal connection between the addiction and the wrongdoing.

Arbitrator: The Employee Was Treated Fairly Given the Circumstances

The issue addressed by the arbitrator was whether the employee could control this pattern of behaviour. It was established at this hearing that she did not take drugs while working, nor while she was on vacation. This, the employer successfully argued initially, showed that she remained in full control of her pattern of behaviour and was not at the mercy of her addiction. The arbitrator concluded that the employee had not proven a prima facie case of adverse treatment due to a disability. The arbitrator reasoned that the employer had treated this employee as it would have any other employee who misused drugs in this manner.

Divisional Court

The appellate court rejected this submission. This factor of “compulsion”, it stated, was not part of the legal test. The Court found that the arbitrator misapplied the law. It is a tough decision to set aside an arbitrator’s decision, as such cases are usually granted considerable deference. However, the Court was compelled to do so in this case, given the legal error. The Court stated:

As Elk Valley made clear, there are no additional words or concepts that should be added to the test for prima facie discrimination. Establishing such things as “compulsion” is not part of the test.  Thus, if these findings were why the Arbitrator did not find prima facie discrimination, his Award still does not “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

The Result

The employee was not, however, completely successful. The Court set aside the Arbitrator’s decision but allowed for a further hearing on the issue. The employee will then need to show a “prima facie” case of wrongful dismissal, which will then, in turn, allow the employer to present its defence as to why its actions were called for. The Court will need to consider the question of “accommodation” and whether the hospital did take steps to so to the point of undue hardship.

That seems unlikely, but presuming the case does not settle, stay tuned for further updates.

Take Away

Dealing with workplace addiction is a delicate issue. This case does illustrate the serious difficulties place on an employer in this situation. Had the employer allowed the employee to return to work and there was a repeat of this offence, the employer would have a stronger position.

Get Advice Before You Act

Employees who have been wrongfully dismissed for a cause protected by Ontario human rights law should review their situation with an experienced employment lawyer. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.