The Devil made her do it! Nurse ordered reinstatement following resident abuse

by Jayson Rider

In the latest of a number of really disturbing and head-scratching arbitral decisions involving the theft of narcotic drugs by drug addicted healthcare professionals, an Ontario arbitrator has ordered the reinstatement, compensation and accommodation of a nurse dismissed for proven theft, dishonesty and resident abuse.

The decision, released on January 10, 2019, involved a long-term care facility (“LTC”) operated by the Regional Municipality of Waterloo and the Ontario Nurses Association (“ONA”). The Grievor, a Registered Nurse (RN) employed as Team Leader and identified only as DS, was terminated for just cause after the LTC discovered that she had been stealing narcotic drugs by various means over a lengthy period of time. Neither ONA nor the Grievor disputed the underlying conduct that led to her termination and the case largely proceeded based on a partial agreed statement of facts. Of particular note, it was agreed that:

1. The Grievor on many occasions falsified medical records to conceal the misappropriation of narcotics that were assigned to the patients. She then falsified the patient charts to show that they had received the narcotics and instead took the narcotics for herself.
2. The Grievor further reported that she had failed repeatedly to give the residents the correct dosages of injections as documented. She withheld some of the required dosage of pain medication from the residents so that she could inject herself.
3. The Grievor’s actions constituted theft and dishonesty and violated the LTC’s Resident Abuse and Neglect Policy.

Post-termination, it became clear that DS had developed a serious addiction to narcotic medicines following a hospitalization for kidney stones in 2014 where she was prescribed narcotics for pain. Also post-termination, DS entered and successfully completed a substance abuse treatment program and at the time of hearing was maintaining sobriety.

The LTC argued that DS had not disclosed her addiction and that it was unaware of DS’s addiction when it terminated her employment. The LTC also argued that DS’s termination was based solely on her misconduct and egregious breaches of employer policy. The LTC further submitted that it had in no way discriminated against DS or failed to accommodate her because she was treated no differently than any other non-addicted employee who engaged in serious theft, dishonesty and resident abuse would have been.

ONA in return argued that the Grievor’s addiction rendered her effectively incapable of controlling her actions. It argued that the Grievor’s condition rendered her incapable of complying with the most basic of workplace rules (e.g. prohibitions on theft, dishonesty and resident abuse) and that the LTC’s decision to terminate in the circumstances discriminated against DS on the basis of disability. ONA further argued that the LTC had the legal obligation to reinstate the Grievor, compensate her for losses flowing from the termination and accommodate her to the point of undue hardship.

Sadly for employers (and for grandma and grandpa), the Arbitrator agreed. In accepting ONA’s position the Arbitrator rejected a long line of cases where addicted employees have been held responsible for the choices they have made. A good example was a TTC employee who chose to steal copper from his employer for resale to fuel a cocaine addiction and whose termination was upheld where he otherwise had the financial means at his disposal to pay for his cocaine. Instead, in this latest case, the Arbitrator negated all culpability on the part of DS, gave little or no weight to the break down in trust DS’s behaviour caused, and ordered the LTC to reinstate her, compensate her and accommodate her to the point of undue hardship.

In coming to his decision in this case, the Arbitrator appears to have found that the Grievor’s abuse and neglect of the most vulnerable of elderly residents by depriving them of their required pain medication was not a choice at all. Clearly, the devil (in the pill bottle) made her do it!

At CCP we only hope that other arbitrators in similar future cases will pay greater heed to the degree of harm caused (both to the residents and to the trust relationship with the employer) and the rights of elderly residents to be free from abuse, and less to the so-called rights of the drug addicted employee who inflicted same.

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