Nurse fired for using fentanyl should get second chance at reinstatement: Divisional Court
TORONTO – A registered nurse fired for stealing opiates and shooting up fentanyl in a hospital washroom should get another crack at showing why she should get her job back, Divisional Court has ruled.
At issue, the court ruled, was whether the Royal Victoria Regional Health Centre in Barrie, Ont., indirectly discriminated against the nurse – identified only as P.S. – in light of her drug addiction.
“In some cases, a person with an addiction may be fully capable of complying with workplace rules,” the court noted. “In others, the addiction may effectively deprive a person of the capacity to comply.”
The hospital fired P.S. in February 2014 – about 18 months after her hiring – after she admitted to stealing drugs from the facility and using the narcotics, court records show. A few months later, she pleaded guilty to a criminal theft charge.
On the day of her firing, P.S. filed a grievance. She argued wrongful dismissal. She claimed to have been the victim of discrimination based on her disability – drug addiction. She demanded reinstatement and back pay.
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The arbitrator, Stephen Raymond, upheld her firing in September 2016. Raymond found no discrimination and also noted the nurse had pleaded guilty to criminal theft; her doctor had stated that returning to the hospital would hinder her recovery from addiction; and that she had already found work at another hospital.
P.S.’s union, the Ontario Nurses Association, asked the courts to take another look. The association argued Raymond had made several errors when it came to P.S.’s discrimination argument and the hospital’s duty to accommodate her disability. The hospital called his decision reasonable.
In its analysis, the court agreed with the union. Among other things, the court found the arbitrator had failed to take into account whether P.S. was the victim of “indirect discrimination.”
While the health centre’s position was understandable – that P.S. had committed breached of trust by falsifying patient records to steal and use drugs – that was not the relevant issue, the court found.
“P.S. was a person with a disability because of her addiction to drugs,” the Divisional Court panel ruled. “As a person with a disability, the provisions of the (Ontario human rights code) protected her from discrimination by her employer on the basis of her disability.”
Given her addiction, the court said, the arbitrator’s main task was to decide whether the hospital’s failure to help her instead of fire her was discriminatory. Both sides agreed there had been no direct discrimination, so the issue became one of indirect discrimination – showing that P.S.’s addiction caused her to steal drugs.
What the arbitrator did, the court said, was to wrongly take her guilty plea in the criminal proceeding as evidence of voluntary behaviour under human rights law. As a result, court found, his decision was unreasonable.
The court ordered Raymond to take another look at the case, with his only task being to decide whether P.S. was the victim of indirect discrimination.
The court also ordered the hospital to pay the association $12,000 in legal costs.
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