In this blog, we want to highlight the high bar that the law places on employers when it comes to policies they create and the enforceability of those policies especially when it comes to what seem to be obvious terminable offences. In this example, the issue under consideration is, if an employer’s (a nursing home) actions, amounted to discriminatory practice and potential breach of the Ontario Human Right Code for them to prohibit an employee (nurses) from stealing narcotics. An Ontario labour arbitrator ruled that it was, in a case documented here - Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019, additionally, the arbitrator ordered the employer, to reinstate the employment of the registered nurse, who had actually acknowledged that her employment had been terminated for just cause. Hearings were held in Kitchener Ontario on April, 11, 2017, January 29, May 22, June 22, June 28, September 19 and October 19, 2018.What Happened?• On September 29, 2016, the grievor, a Registered Nurse (RN), was terminated - for just cause - by her employer, a long-term care home in Waterloo area, because, during the two-year period up to and including August 22, 2016, the RN was stealing narcotics from the long-term care facility, for her own use and falsifying medical records to cover up her actions. • The employer’s grounds for termination were theft of drugs and gross misconduct relating to protocols.• The RN was a member of the Ontario Nurses Association, the “union”. • Both the union and RN acknowledged that the RN’s actions were at the highest level of misconduct for someone in her position and amounted to just cause for termination. • But the parties accepted that, at all relevant times, the RN was struggling with an addiction. She was diagnosed with severe opioid use disorder and mild to moderate sedative-hypnotic use disorder. • The RN wanted to return to her job with the employer, and the union/ the nurse argued that, on the facts of the case, prima facie discrimination had been established and that the employer has not demonstrated that the nurse could not be accommodated without causing the employer undue hardship.• The employer argued that the RN has not demonstrated prima facie discrimination. In the alternative, the employer argued that the RN could not fulfill the bona fide occupational requirements of the job.• Further, the employer argued that it could not accommodate the RN without undue hardship.Arbitrators Decision• The arbitrator’s opinion was that the union has established prima facie discrimination and that the employer had violated the procedural duty to accommodate. • Also, the employer has not demonstrated that it could not accommodate the RN without suffering undue hardship.• With respect to why and how prima facie discrimination was found, the arbitrator stated that the evidence shows beyond any doubt that there is a connection or nexus between the RN’s substance use disorder and the adverse effect of termination of employment for violation of admittedly valid workplace rules. • He went on to state that compulsive behaviour and impaired judgment are symptoms of the mental illness of substance use disorder. They were manifested in this case, according to the weight of medical evidence, by either no capacity or diminished capacity on the part of the RN to comply with workplace rules prohibiting diversion of narcotics and falsification of medical records. • The employer’s witnesses testified that the RN’s addiction was not a factor in the decision to terminate and the employer relies on this to support its argument that the RN’s addiction was not a factor in her termination. • With respect to whether it would cause the employer undue hardship to accommodate the employee, a lot of time was spent considering the restrictions placed on the RN’s license by the College of Nurses. • The arbitrator held that, because the employer had not even considered whether it could accommodate the employee, a breach of the Human Rights Code had been established.• In the end, the arbitrator ordered the employee reinstated to her position. The employee was also awarded general damages for injury to dignity, feelings and self-respect. Employer Take-Away• This case highlights the tension between blanket rules and constructive discrimination. Essentially, just because the rules apply to everyone, doesn’t mean that they’re fair.• The case also highlights that just because an employer may not be able to actually accommodate an employee’s disability does not mean that the employer is excused from the procedural duty to consider whether it could do so. Accommodation is thus a two-step process.• Employers should be mindful of their obligations under the Human Rights Code, including by ensuring that those in management are aware of both the substantive and procedural duty to accommodate.• Employers must also be mindful of the potential for constructive discrimination with blanket rules.