Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on April 8, 2021 within the category "Accommodating drug and alcohol addiction". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.


An employee with seventeen years of service was terminated after a severe breach of health and safety rules.  Immediately after his termination, he was forced to confront his alcohol addiction by his friends and family, and was diagnosed as a chronic alcoholic by his doctor.  He shared this information, along with an apology, with the employer.  The employer offered the pay half of the costs of recovery for the employee but refused to reinstate him.  At arbitration, he was reinstated. 

Legal Citation 

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steel Workers), Local 5220 v Altasteel, [2021] AGAA No 15 (CanLII) (February 3, 2021) (William D. McFetridge Q.C.)

Facts

The grievor was 46 years old and had worked for the employer for seventeen years. 

He has held a variety of positions, but from 2012 until 2019 he worked as a millwright in the steelmaking mechanical and maintenance shop. 

This was a safety-sensitive position in an area of the workplace with a variety of high-risk equipment. 

Prior to January 2019, there had never been an issue with the grievor’s performance, and he had always adhered to safety protocols. 

In January 2019, however, the grievor was caught smoking in a restricted area for which he had been warned against previously.  He was suspended without pay for one day. 

In the same month, he failed to attend his 7:00 am shift and did not contact his supervisor until 2:00 pm.  He said he had taken a muscle relaxant and had slept through his alarm.  He received a two-day suspension.  

Later that year, a card was presented to one of the grievor’s co-workers in recognition of his fifth work anniversary.  The employee left the card in the lunchroom so his co-workers could sign it. The grievor, thinking that the employee would find it funny, drew a sexually explicit picture and wrote an inappropriate comment.  He signed his name beneath the drawing and his comment. 

The co-worker did not recognize the signature, found the drawing offensive, and complained to his supervisor that his card had been defaced.  The grievor was asked about the incident and admitted that he did the drawing and comment.  When he learned that it had offended his co-worker, he immediately apologized.  However, as this incident occurred only two days after the grievor had attended a workplace sensitivity-training session, he was suspended without pay for three days. 

In September 2019, the grievor witnessed an employee threaten to kill another employee.  The area superintendent was present when the threat was made, but the grievor reported the threat to his supervisor regardless.  Later, the grievor was confronted by the area superintendent about the incident and the two engaged in a heated verbal argument.  When the employer investigated the entire incident, it found that the grievor had failed to report a serious safety issue in a timely fashion.  It also determined that his conduct had been inappropriate.  He was suspended without pay for two weeks. 

The grievor’s next and final incident occurred in November of the same year.  He was working in a safety-sensitive area which required approval; employees were also required to carry a working radio with them the whole time they are in the area.  The grievor entered the area without a working radio and without permission.  No one was aware he was in the area, and a large ladle of molten steel swung through the area overhead, and he was nearly struck by the ladle.  An investigation was conducted after the near-miss, which concluded the infraction was a culminating incident.  He was terminated, and his union grieved the dismissal. 

In the days following the grievor’s dismissal, his family and friends confronted about his addiction to alcohol.  The grievor admitted he had a problem and sought the attention of his doctor.  He was diagnosed with chronic alcohol dependence disorder, and he immediately shared this information with the union and the employer.  The grievor testified at the hearing that a divorce and the death of a few close friends in the spring of 2018 had caused him to begin abusing alcohol every day during work.  He claimed that it was this intoxication that lead to his reckless and inappropriate behaviour. 

The collective agreement with the employer allowed for a “final appeal” process wherein the employer can consider all of the relevant circumstances and decide whether to reinstate an employee or proceed to arbitration.  At the final appeal, the employer was already aware of the grievor’s disability and the grievor offered a sincere apology.  The employer denied the grievor’s appeal, although they did offer to pay for half of the grievor’s treatment on a without prejudice basis. 

Analysis

After Arbitrator William McFetridge determined that this was a human rights issue, he then asked whether the facts of the grievance met the three criteria for a prima facie case of discrimination.  On the first two criteria, he ruled that (i) the grievor was protected by a human rights ground (disability), and(ii) he had experienced an adverse consequence (the dismissal).  He then asked (iii) whether the disability had played a role in the termination:  

Here we have a clear example of adverse effect discrimination; an otherwise neutral policy had an adverse effect on an employee who suffers from a disability. The neutral policy is the company’s reasonable performance expectations. Due to the grievor’s disability, there were several occasions where he failed to meet the company’s reasonable performance expectations” [Emphasis added]

With prima facie discrimination established, Arbitrator McFetridge then moved to consider whether the employer had accommodated the grievor to the point of undue hardship: 

an offer of post discharge rehabilitation services without an opportunity for re-employment does not meet the company’s obligation to accommodate the grievor unless there is evidence that it would be impossible to do more without undue hardship. There was no evidence that the company considered any options short of termination.” [Emphasis added]

Next, the arbitrator addressed the employer’s argument that they satisfied their procedural duty to inquire as none of the grievor’s co-workers nor his doctor had suspected that the grievor had been abusing alcohol: 

Here, the grievor was a satisfactory employee for sixteen years and his conduct during the final eleven months of his employment was a marked departure from his prior performance. It is somewhat incredible that the abrupt change in his conduct, attitude and job performance coupled with the company’s knowledge that he had lost his driver’s license due to an impaired driving conviction did not cause the company to question whether he might have a psychological or substance abuse problem.” [Emphasis added]

Arbitrator McFetridge also considered whether the post-termination evidence of alcohol dependency should be considered: 

The evidence of the grievor’s existing alcohol dependence disorder deserved to be considered. Although it was acquired after the event, it established that the grievor had a disability in the months leading to his dismissal and provides an explanation for the grievor’s misconduct. On receipt of this evidence, the company ought to have recognized its obligation to make an individual assessment as to whether it was possible to accommodate the grievor without undue hardship.” [Emphasis added]

Lastly, the arbitrator addressed the employer’s reliance on the findings from the 2017 Supreme Court of Canada’s ruling in Elk Valley.¹  He held that this case was distinguishable because, as the trier of fact, he has determined that the grievor’s severe alcohol addiction prohibited him from adhering to workplace policies and was, therefore, a factor in his termination.  He, therefore, allowed the grievance and ordered the reinstatement of the grievor.  He also overturned the grievor’s two-day, three-day and two-week suspensions, but did not otherwise order other damages.  The arbitrator also imposed a number of conditions on the grievor, including abstinence from drugs and alcohol and random drug-and-alcohol testing.   

Implications for Employers

This case reinforces the proposition that employers are required to consider all relevant circumstances before terminating an employee.  This includes information that arises in the course of a grievance procedure, even after the employee has been terminated.  Post-termination evidence will be considered if it is relevant and could provide an explanation for an employee’s errant behaviour leading up to the termination. 

Implications for Unions

The union played a critical role in this case by utilizing the final appeal as an opportunity to re-establish the burden of accommodation on the employer and eliminate a possible defence of knowledge.  This case emphasizes the importance that unions play in protecting vulnerable employees such as the grievor with an alcohol addiction.  If not for the expediency of the grievance procedure, this case may not have been decided the same way. 


¹  Stewart v Elk Valley Coal Corp. 2017 SCC 30.