'An ounce of contrition might have saved her from an immediate decision to terminate,' says lawyer
A British Columbia arbitrator has upheld the dismissal of a nurse at a correctional facility following allegations of misappropriation of medication and policy breaches.
The worker was a registered nurse with 28 years of experience. In December 2017, she started working for the BC Provincial Health Services Authority (PHSA) at the Fraser Regional Correctional Centre (FRCC) in Maple Ridge, BC. Her duties included meeting clients for scheduled appointments and performing preliminary assessments of new inmates.
The worker was diagnosed with severe, degenerative osteoporosis in 2019. In the summer of 2022, she took time off work to have hip surgery, but she later developed the same deterioration in her other hip that continued to cause her pain.
In January 2023, the worker placed an order for the FRCC clinic for two, 30-pill cards of Robaxin, an over-the-counter muscle relaxant.
On Feb. 9, another nurse emailed the FRCC’s health services manager saying that they had received two cards of Robaxin the day before and they were missing one. The nurse had noticed missing Robaxin since October 2022 and had reported an abnormally high use of the drug in January 2023.
The same day, the same LPN noticed that another painkiller medication called Flexeril also went missing. It was a prescription for a client being transferred to the FRCC but hadn’t reached its destination.
Workplace investigation
The health services manager conducted an investigation, which included reviewing the pharmacy invoice, a full search of the medication room, a search of the clinic room and nurse server, and reviewing the documentation around the transfer client with the Flexeril prescription that indicated the worker was the receiving nurse for the client. He also informed BC Corrections and asked it to review video surveillance footage on the day the Robaxin arrived and the following day, when it was reported missing.
On Feb. 13, the manager reviewed the surveillance footage, which showed the worker entering the medication room, pulling down two baskets of contingency medication, and removing medication from the baskets. The baskets in question contained Robaxin and Flexeril, among other medications.
The worker left the medication room with three medication cards in her hand. When she passed another nurse, she appeared to shift the cards around her body to conceal them. Other footage showed the worker leaving at the end of her shift carrying a personal bag and a black tote bag.
The manager audited the medications in the two baskets and found that there were also two cards of a medication called Indomethacin missing that had been delivered five days earlier. He then reviewed the worker’s charting, that indicated she didn’t provide oral medication to any clients that day.
Investigative interviews
At an investigative interview on Feb. 15, the worker said she had no recollection of handling the missing medication “but it was possible.” When she was told about the video footage, she continued to say she didn’t recall what she did with the medication, although she sometimes kept medication in the clinic room despite the fact that wasn’t allowed. As for the missing Flexeril, she said that she documented that two cards weren’t delivered, which was common in such circumstances.
At a second interview on Feb. 22, the worker was shown the video footage. She said that she had no further or a different recollection.
On March 24, a third meeting was held with the worker. She was asked again about what she did with the medication and the worker said she wasn’t changing her previous answer. She also said that she sometimes brought medication into the nursing room, which was contrary to policy, but she said the policy wasn’t applied consistently due to changes in management.
The worker expressed frustration, saying that everyone had access to the rooms and she was being singled out. She also said no one else was currently taking anything because others knew of the investigation.
The PHSA terminated the worker’s employment on March 31 for misappropriating medications, failing to follow policies and procedures, and failing to report missing medication.
Union challenged cause, claimed discrimination
The union grieved, arguing that the PHSA didn’t have just cause for dismissal and the investigation was biased and discriminatory. It argued that the worker’s physical disability - related to her hip problems - played a role in her termination. The union suggested that the PHSA presumed she misappropriated pain medication due to her medical condition.
The arbitrator determined that the evidence, including video footage, was sufficient to conclude that the worker had taken Robaxin without authorization. The footage showed her handling medication cards and carrying them into a clinic room, contrary to established procedures.
While the worker maintained that she had no recollection of these events, the arbitrator found her testimony lacked credibility, given the first investigative meeting was only six days later. In addition, the worker claimed that she didn’t know how the contingency medication was filed, but the video footage showed her pulling the specific baskets, the arbitrator said, adding that there was no satisfactory explanation for where the missing Robaxin went except that the worker took it.
The arbitrator also noted that there was no work-related reason to remove Robaxin from the medication room, as no clients were treated with it that day.
However, allegations regarding the missing Indomethacin and Flexeril weren’t substantiated, as the arbitrator found gaps in the investigation related to these medications, including the fact that five days had passed when the manager audited the order for Indomethacin and video footage for those days wasn’t reviewed. As for the Flexiril, there was no evidence on who handled the package during the client transfer, leaving only circumstantial evidence that was insufficient to establish theft, said the arbitrator.
Methodical investigation into missing drugs
The employer’s investigation was effective as the manager approached it methodically, according to Michael Penner, a Victoria-based labour and employment lawyer at Levitt LLP.
“The manager started by determining when was the shipping of the controlled substances, when was it reported to have arrived at the facility, and then he followed the chain of evidence after that, such as at what point it went missing,” he says. “And then he reviewed video footage that was reliable as evidence.”
“Where things went astray is when the investigator had some evidentiary holes with some of the missing drugs, but because he had established a course of events with the worker, he just filled in the blanks by virtue of his confirmation bias,” adds Penner. “The employer proceeded with several allegations of theft, but evidence-wise, they really only had one or two instances - the others were just based on inference.”
An interesting aspect of the case is that it wasn’t the theft itself that the arbitrator found was the cause for termination, says Penner, who notes that 20 years ago, any adjudicator would find that the automatic penalty for employee theft would be termination.
“Now, you have to look at the worker’s circumstances – this worker was unsuccessful, but had she come forward and said, ‘I stole this but it's because I'm addicted to painkillers because of my debilitating health condition,’ now the act of theft is coloured by a pronounced mitigating factor,” he says. “So all of a sudden it's not a termination offense, it's something that might be worthy of discipline, but not termination.”
No evidence of discrimination
However, the arbitrator rejected the union’s claim of discrimination, finding that there was no evidence that the worker’s disability influenced the PHSA’s decision to terminate the worker’s employment.
“There was no medical evidence tendered to support the claim, and even if they had all of that, the worker didn't even offer a strong rebuttal other than saying there were other people that had access to that room so maybe it was them,” says Penner. “An ounce of contrition might have saved her from an immediate decision to terminate.”
The arbitrator determined that the seriousness of the misconduct, particularly for a healthcare worker in a correctional setting where trust and integrity are paramount, along with the absence of remorse or acknowledgment of wrongdoing by the worker, made dismissal a proportionate response. The grievance was dismissed.
“The act [of theft] itself contributed to [just cause], but it was the worker’s subsequent explanations or lack thereof, and the disingenuity of her answers that ultimately justified the termination,” says Penner. “And this is true in almost every employee theft case - it's the breach of trust that severs the employment relationship.”
Breach of trust was particularly important because of the nature of the worker’s position, adds Penner.
“This is not just a nurse, but this is a nurse in a correctional facility, so the level of trust inherent in the position is very high,” he says. “There are statutory standards by which every nurse has to abide in the handling of controlled substances, and facility policies that had to be followed to the letter because of the high liability.”
See Provincial Health Services Authority and BCNU (Elkin), Re, 2024 CarswellBC 3312.
