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Canada: The Devil (Narcotics) Made Her Do It! Nurse Ordered Reinstatement And Compensation Notwithstanding Multiple Instances Of Narcotic Theft/Falsifying Medical Records/Resident Abuse
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:
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.
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.
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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