On January 10, 2019, Arbitrator Larry Steinberg released a decision in which he upheld ONA's grievance that a nurse suffering from an addiction, who had diverted narcotics from her workplace as a result, had been discriminated against when her employer terminated her employment. Arbitrator Steinberg agreed with ONA that this was discriminatory conduct, and accepted the Union's argument that the employee was entitled to reinstatement, accommodation, and compensation for her losses resulting from the discrimination. This included lost wages and general damages for injury to her dignity, feelings, and self-respect.
This is the first addiction-termination case litigated in the Long Term Care sector, and the first decision in which an arbitrator has awarded such remedies.
The case builds on a recent win by ONA in Humber River Hospital v Ontario Nurses' Association, 2018 CanLII 115718, where prima facie discrimination was found in a similar context, however the employee was not ordered reinstated to employment. This decision was based on a finding that the necessary trust relationship between the employer and the employee "had not been rehabilitated".
Arbitrator Steinberg addressed the trust relationship directly in his reasons, noting that the terms and conditions imposed by the College of Nurses of Ontario on the employee's practice were sufficient to secure patient safety.
The decision is important both for its advancement of the remedies available to employees whose alleged misconduct is caused in part by a disability, and for its rejection of a BC Court of Appeal analysis on the law of prima facie discrimination. As in Humber, Arbitrator Steinberg agreed with ONA that an employer's intent is not relevant to the discrimination analysis, as a focus on intent improperly ignores the principles underlying indirect discrimination. A copy of Arbitrator Steinberg's decision can be found here.
ONA was represented in this proceeding by Kate Hughes and Tyler Boggs.