By Howard Levitt
Employers have not escaped the consequences of a pervasive culture of political correctness, the hallmark of which is the cultivation of a victim mentality and concomitant sense of entitlement. Laws designed to protect genuine victims of discrimination and disadvantage are being manipulated to promote an agenda that has nothing to do with either.
Judges and adjudicators are only human, and react to the same pressures, trends, proclivities, and emotions as the rest of us. They are not immune from the pressures of a legal and cultural elite that would place precedence of preferential group rights over the interests of the majority.
A notable example of the expansive view of preferential group rights is a decision by arbitrator Norm Jesin.
Registered nurse Jennifer Vaillancourt was fired from the Sunnybrook Health Sciences Centre in 2013 for repeated theft of narcotic medications, and breach of protocols relating to access and use to those drugs. She also falsified medical records, including narcotic record and patient charts to cover up the theft. By all accounts, the theft and alteration of records went on for seven years.
Once the hospital discovered the theft and the irregular records, Vaillancourt denied responsibility, asserting later that this was at the advice of her boyfriend, and flowed from her fear of being arrested and losing her job. She claimed that she was ashamed of the theft and drug use, but was unable to control it.
It was not until after the conclusion of her cross-examination – more than 18 months after her employment was terminated — that she ultimately acknowledged the extent of her misconduct.
The employer rightfully argued that this employee could not be trusted, as she had compromised patient treatment and put patients, colleagues, and her employer at risk.
If this was a case that had proceeded under the common law in a court of law, there is little doubt that the dismissal would have been upheld.
But the arbitrator felt sympathy for the nurse, viewing her drug addiction as a disease which impairs the ability to control one’s craving. As a result, because he found that she was disabled, the hospital had a duty to accommodate her under the Human RightsCode, and to reinstate her as an employee.
While society’s sympathy for those who suffer from addiction is a good thing, such a peculiar interpretation and application of human rights law can only make employers wonder how to deal with difficult employees and, worse still, inspire others to take advantage.
I have seen numerous examples of this increased sense of entitlement and misuse of the legal regime to advance individual interests.
- A black woman complained that her employer required her, like all other female employees, to wear her hair down, rather than in a bun as part of a dress code policy, and accused the employer of racism;
- An employee who was fired after picking fights with each and every one of his co-workers, claiming that he was really fired because he had made health and safety complaints in the past;
An employee, let go in a large downsizing, claiming that he was fired because he had polio and now demanding reinstatement before the human rights commission, despite the fact that his disability had no impact whatsoever on his ability to perform his sedentary job.
If such abuses, predicated on a sense of political correctness, are allowed to prevail, it will ultimately lead to a sea change in public sympathy and create a greater preparedness on employers’ part to fire employees who engage in misconduct, regardless of any attempt to hide behind inconsequential or frivolous human rights veils.