The Case of Robyn Andrews

The Facts

The facts of the case are not in dispute. Robyn Andrews was a registered nurse employed in the cancer unit of University Hospital. Andrews is now $35$ years old and was hired by University Hospital on June $1,2009.$ The hospital has a three$-$point performance rating system: $(1)$ does not meet expectations; $(2)$ meets expectations; and $(3)$ exceeds expectations. Each year but $2018$ Andrews received a performance rating of $$meets expectations.$$ In $2018,$ she received a rating of $$ does not meet expectations.$$

In her role as cancer nurse, Andrews was responsible for monitoring patient care, administering cancer drugs $($chemotherapy$,$ opioids$),$ monitoring patient regimes, and counselling patients and their families concerning cancer care options. Accordingly, nurses on this unit were required to maintain certification as $$cancer specialists.$$ Andrews received this certification in $2002$ and had maintained it ever since.

Andrews was verbally counselled and received two written warnings for absenteeism on February $14,2018,$ July $25,2018,$ and October $4,2018,$ respectively. She was terminated on November $7,2018,$ following a three$-$day leave of absence without permission. A union representative was present for the last warning; Andrews declined union representation for the first two warnings. At no point was Andrews reminded about the Employee Assistance Program $($EAP$)$ in place at the hospital. On November $1,2018,$ management found oxycodone in her locker. Only Andrews had the combination needed to open that locker. The amount of oxycodone found was the exact amount that Andrews had signed as being $$contaminated and destroyed$$ on October $31,2018.$ The letter of discharge states that she was terminated for failing to call in sick, excessive absenteeism $(14$ percent as against a hospital average of $7$ percent$),$ and theft of medication from the hospital.

Subsequent to the discharge, Andrews sought treatment for a drug and alcohol addiction. She has been in and out of counselling since December $2018.$ Between the initial treatment of December $2018$ and the time of the arbitration hearing $($July $15,2019),$ she had three major relapses in which she stopped attending her counselling sessions $($dates January $3,2019,$ February $14,2019,$ and March $17,2019).$ She has been drug$-$ and alcohol$-$free since April $11,2019.$

Andrews$$s addiction counsellor, Dr$.$ Asan, believes that she has a $75$ percent chance of remaining chemical$-$free over the next few years. In Dr$.$ Asan$$s opinion, it was the unexpected death of Andrews$$s eight$-$year$-$old daughter, who in March $2017$ died in the ER of the hospital where she worked, that caused the subsequent addiction. Specifically, Andrews lost control of her car when it hit black ice. An accident followed where she was injured and her daughter subsequently died. Andrews was prescribed oxycodone as a pain killer for her accident$-$related injuries. Now that her patient has recovered from this tragic event shock, Dr$.$ Asan believes that Andrews can maintain an acceptable attendance and performance record as a cancer nurse in the future.

In terms of other employees, Ms$.$ Gomez $($her manager$)$ states that only one other cancer nurse, out of a staff of $25,$ had an absenteeism rate greater than $10$ percent $(13$ percent$).$ That nurse was given a written warning. Since that warning, her attendance has been meets expectations. Hence, further discipline was not necessary for that nurse.

Key Dates

June $1,2009$: Andrews hired

February $14,2018$: Verbal counselling

July $25,2018$: Written warning

October $4,2018$: Second written warning

November $1,2018$: Oxycodone found in Andrews$$s locker

November $7,2018$: Termination

December $2018$: Andrews$$ initial treatment

July $15,2019$: Arbitration

Relevant Collective Agreement Clause Article $15$Corrective Action and Discipline

$15\mathrm{.}1.$ Employees can be disciplined only for just cause. Such discipline must be reasonable and commensurate with the seriousness of the violation.

$15\mathrm{.}2.$ Both the union and the hospital believe in the concept of progressive $-$ discipline. Accordingly, they agree that a verbal counselling should take place prior to any disciplinary action. Should an employee$$s conduct or performance not improve after this counselling, the normal progression of discipline will be as follows:

$$ Step $1$: Written warning

$$ Step $2$: Second written warning

$$ Step $3$: Suspension without pay

$$ Step $4$: Termination

$15\mathrm{.}3.$ Notwithstanding clause $15\mathrm{.}2,$ it is understood that certain offences are sufficiently serious to warrant immediate discharge and$/$or a faster $-$ progression through the process outlined in $15\mathrm{.}2.$

$15\mathrm{.}4.$ Employees have the right to have a union repr

Q:Assume that you are the arbitrator hearing this case you must make a decision. Youmust justify the decision based on relevant facts, applicable laws, provisions in thecollective agreement and any previous arbitration decisions $/$ awards. and you wouldprovide if you were an arbitrator.