By Jeffrey R. Smith ([email protected])
It seems the only certainty about just cause these days is the uncertainty of it all. A common refrain from employers when it comes to employee misconduct is “What does it take to get fired?”
Things become particularly confusing when drugs or alcohol are involved, because the spectre of an addiction, which is considered a disability under human rights legislation, is raised. If there is an addiction, the employer must accommodate it to the point of undue hardship.
Things can get a little dicey when a large part of an employee’s misconduct involves a breach of trust. If an employee’s job requires a high level of trust and misconduct arising out of drug or alcohol abuse is involved, how much can the employer’s inability to trust the employee go towards undue hardship?
Take a recent case at a hospital in Collingwood, Ont. A registered nurse who worked in the emergency department was caught stealing drugs for her own use — something she had apparently been doing so for years. When ordering doses for patients, she would order extra for herself. This was something she had done at another hospital, for which she was fired.
The hospital kept her on the payroll while she received treatment and disability benefits, but terminated her employment when it came time for her to return to work, saying she had betrayed its trust and endangered patients. It also said it couldn’t accommodate the restrictions on her nursing licence placed by the Ontario College of Nurses, including constant supervision.
However, the Ontario Arbitration Board said the hospital had an obligation to try to accommodate her. Though it didn’t order her reinstatement, the hospital had to investigate accommodation options because the board felt relapses were common for addicts before they finally beat their addictions. Because the nurse returned to rehab after her second instance of stealing drugs, the board said the hospital must try to accommodate her while she tried to overcome her addiction.
While an employer in these circumstances doesn’t have to hire an employee back if it can prove undue hardship, it’s often difficult to do. In a case like this, the employee may be physically able to do certain jobs the employer can give her, but how does it prove a certain level of distrust, and what is the threshold level of distrust for there to be undue hardship?
Many employers might look at these circumstances and think there’s no way the nurse could go back to working in any area in a hospital as she had already relapsed and seriously violated her employer’s trust twice, but it’s not that simple. A lengthy period of time where an employee betrays an employer’s trust in a position of heavy responsibility might damage the employment relationship beyond repair, but an employer wanting to end that relationship better be ready to clear a high bar in trying to prove it.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more infomration, visit www.employmentlawtoday.com.
