It is well established that discrimination against an employee
on the basis of a physical or mental disability is
prohibited. Drug or alcohol addictions constitute a
"disability" under most human rights legislation such
that employers are prohibited from discriminating against employees
on the basis of their addictions. But what if a drug- or
alcohol-addicted employee engages in serious misconduct which they
say they committed because of their addiction? Will it be
considered discriminatory to discipline them for such
conduct? The Court of Appeal in Alberta recently said
"not necessarily" in Wright v. College and Association of
Registered Nurses of Alberta (Appeals
Genevieve Wright and Mona Helmer were registered nurses in
Alberta who suffered from addictions to opioid narcotics. They
were caught stealing narcotics from their respective hospitals and
falsifying medical records to conceal the thefts. The College and
Association of Registered Nurses of Alberta (the
"College") initiated disciplinary
proceedings for professional misconduct before the College's
Hearing Tribunal. Among other sanctions, the hearing resulted
in the suspension of the nurses'
Neither nurse disputed the allegations. But both argued they
could not be disciplined because their behaviour was caused by
their drug addiction. They reasoned that since drug and
alcohol addiction constitutes a "disability" in Alberta
human rights laws and the addiction drove them to commit the thefts
and forge hospital records, any punishment imposed by the College
for those behaviours would effectively be imposing a punishment on
the basis of their disability. They alleged that such a
punishment would be in violation of the anti-discrimination
provisions in the Alberta Human Rights Act. The
College maintained that disciplinary measures were necessary to
address the nurses' misconduct and that the proceedings were,
in fact, unrelated to the nurses' drug addictions.
The Hearing Tribunal ultimately determined that a human rights
defence had not been made out. The nurses could not
demonstrate that their behaviour was caused by their
addictions. The nurses appealed to the College's Appeal
Committee but the suspensions were upheld.
Appeal to the Alberta Court of Appeal
The nurses appealed further to the Alberta Court of
Appeal. The Court of Appeal considered the decisions of the
Hearing Tribunal and Appeals Committee and decided that while the
nurses' drug addictions were something that distinguished them
from other members of the College who are subject to disciplinary
proceedings, this distinction did not amount to discrimination. It
accepted the evidence of the College that the decision to lay
professional disciplinary charges was not motivated by the
nurses' addiction, but rather by their misconduct. As
such, it was not discriminatory to hold these nurses accountable
for the acts they had committed notwithstanding that they might
have been motivated by their addiction. The Court commented
that "there are a great many addicts who do not commit
criminal acts, and it is not discriminatory to hold those who do
accountable for their actions".
Take Away for Employers
While this decision arose in the context of disciplinary
proceedings initiated by a professional governing body, it is
applicable to employers addressing employee misconduct where an
employee claims that his or her behaviour was caused by a drug or
alcohol dependency. The decision confirms that discipline will
not automatically be considered discriminatory if:
the misconduct was not directly caused by the condition;
the employer can demonstrate that its focus was on addressing
the behaviour and not the addiction.
Although a disciplinary proceeding out of Alberta, the decision
may be persuasive to arbitrators, courts and human rights tribunals
across the country.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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