The law on addiction has evolved over the years in arbitral jurisprudence. Earlier decisions treated illness as a mitigating factor on penalty. In more recent decisions, arbitrators have treated the human rights accommodation analysis as relevant to the assessment of the gravity and culpability of misconduct itself.
Despite these different approaches, there has been something of an arbitral consensus in Ontario: where a healthcare professional proved that she had an addiction to the drug she stole, and successfully committed to rehabilitation, these factors constituted a defense to her termination.
In Cambridge Memorial Hospital v Ontario Nurses’ Association, a nurse was terminated after she was caught stealing Percocet and Tylenol 3s. The grievor had 28 years’ service and a perfect record. At the time of her dismissal, she was about to be promoted to the position of Manager of the Emergency Department.
Although the grievor admitted to stealing, she challenged her dismissal on the basis that the hospital had failed to accommodate her opioid addiction in accordance with the Human Rights Code.
The Arbitrator applied a “hybrid” approach to the analysis. Before considering whether the hospital could have accommodated the grievor, she first considered whether the grievor’s addiction constituted a defence to the criminal misconduct of stealing drugs from the hospital, and diverting drugs from patients.
The Arbitrator held that simply pleading a nexus between the addiction and the misconduct is not in itself a defence against termination. In the language of human rights jurisprudence, such a nexus alone is not prima facie evidence of discrimination.
The Arbitrator noted that the employee’s evidence with respect to her addiction was unclear and did not amount to a coherent narrative. She was vague when describing the onset of her addiction, and attributed it to different events at different times. She also failed to provide clear evidence with respect to the escalation of her addiction. The evidence was that the grievor did not use at work, and could go for periods, including weekends and vacations, without needing to use drugs and without returning to the hospital to steal more. Further, she did not experience any physical withdrawal symptoms when she entered rehabilitation.
Although the Arbitrator found that ‘but for’ her addiction, the grievor would not have stolen and was otherwise a model employee, the grievor did not establish that the theft was the result of a compulsion. Rather, the grievor’s behavior on the evidence was more consistent with a controlled habit.
Given the serious nature of her offence, the grievor could not avail herself of mitigation of penalty – she failed to own up to the extent of her misconduct. Hospital records indicated that the grievor had been stealing medication for many years; however, the grievor would not admit to stealing before a certain period, and claimed not to remember other aspects of her theft.
The Arbitrator noted that the result would have been different if the grievor had come forward and admitted her addiction before she got caught stealing. Although employees in the full-blown thralls of addiction will not always be able to do so, the evidence in this case was that the grievor was capable of coming forward, but chose not to.
This case refutes the misconception that employees can avoid discipline for egregious misconduct simply by pleading addiction. The Arbitrator’s more nuanced analysis incorporates established workplace law considerations: the degree of the employee’s culpability for the misconduct, as well as considerations of whether there has been a sufficient breach of trust to erode the employment relationship.
However, this distinction also has the potential to complicate employers’ obligations. It seems that in deciding which penalty is appropriate, employers must undertake an analysis regarding the ‘degree’ of an employee’s addiction, and whether or not the employee was truly compelled to commit the misconduct in question. While this may be possible after hearing extensive evidence from the employee and from medical professionals, as the Arbitrator did in this case, it may be more difficult for an employer with limited information.
When faced with employee misconduct related to addiction, employers should take pains to ensure their investigation includes an analysis of the degree of addiction and compulsion. Despite the cost, it may be prudent to consult a medical expert and/or counsel before acting on the findings of an investigation in these circumstances.