This post was originally published on this site
The hospital fired the registered nurse in November 2015 after discovering she stole pain medication. She had worked there for more than 28 years and was about to be promoted to manager of the emergency department.
A grievance was filed against the hospital, alleging that the firing was contrary to Ontario’s Human Rights Code and without just cause.
The panel said in its ruling released last week that despite finding that the nurse was addicted to narcotics and she would not have engaged in the misconduct that led to her termination “but for” her addiction, the arbitrator dismissed the grievance and upheld her firing.
The Divisional Court judges granted the Ontario Nurses’ Association’s application to quash the arbitrator’s January 2017 decision. Another arbitrator will now hear the case.
The ruling recalls the recent case of a nurse at Sunnyside Home who was fired from the Kitchener long-term care home for repeatedly stealing opioids to feed her addiction. In January, an arbitrator ruled that she must be rehired and compensated because her addiction was a disability.
The issue with the Cambridge nurse came to light in August 2014 when a colleague noticed Percocet had been removed from a computerized drug-vending machine under suspicious circumstances. A manager was notified and a three-day audit led the hospital to conclude the nurse had been taking Percocet out of the machine without authorization.
The hospital confronted the nurse, who admitted to taking the drugs. Both agreed she should seek medical help and the nurse went on disability leave for a year. During that time, she attended an in-patient treatment program for addiction and attended Alcoholics Anonymous meetings.
When the nurse and hospital began discussing the possibility of her returning to work around fall 2015, the hospital conducted a broader investigation and found the nurse had been stealing Percocet since 2011.
The hospital met with the nurse in October 2015 and she admitted she stole the drugs, diverting them from patients.
Following that meeting, the hospital looked at previous records and discovered she had been stealing pain medication since at least 2003. The records showed theft of Percocet back to 2006 and Tylenol 3 back to 2003, although the nurse did not recall taking any Tylenol 3.
The hospital fired her shortly after, the termination letter saying she had admitted to “engaging in a pattern of theft of narcotics (stealing 2 to 6 Percocet tablets per shift), sometimes diverting them from patients” and falsifying records to conceal the theft.
An addiction specialist who was involved with her treatment and ongoing care said in December 2015 that she was in “excellent early sustained recovery” and recommended she return to work. She has not used narcotics since August 2014, and was permitted by the College of Nurses of Ontario to return to nursing with monitoring to ensure she could practise safely.
The grievance was referred to arbitration and there were six days of hearings through 2016, leading to the arbitrator’s decision in early 2017.
The panel found the arbitrator’s decision was not reasonable because he refused to accept the applicant established prima facie (correct until proved otherwise) discrimination.
That’s despite finding she was addicted, suffered an adverse impact as a result of her addiction, and that “but for” her addiction she wouldn’t have engaged in the serious misconduct that led to her firing — which is all that is necessary to establish prima facie discrimination under the test confirmed by the Supreme Court of Canada.
Now the grievance will get a fresh hearing by a new, mutually-agreeable arbitrator.