HR Crash Course
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Learn HR basics. Learn how to motivate staff. Learn how to organize your workplace for success.
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HR Crash Course
- 1. C rash C ourse: R eviewing C ore Principles of Human R esources Infonex 951 Workshop Whitehorse Dec 6, 2010, 1:00 to 4:00 pm Chris Hylton, CG Hylton and Associates Inc. 800 449-5866 [email_address]
- 3. Agenda The Duty To Accommodate What is the duty to accommodate and what are you responsibilities as an employer? Staffing Basics Review of recruiting, retaining, training and development and compensation Human Resources Policy - What are the basics of designing a human resources policy? - What are the essential policies for a workplace?
- 4. All about you What are your issues? How can we help each other solve your HR issues?
- 5. What is the duty to accommodate and what are you responsibilities as an employer?
- 29. Any questions about Accommodation please?
- 53. PEOPLE!!!!
- 82. Drug & Alcohol testing
- 85. Cost & Entitlement Adjustments
Hinweis der Redaktion
- Source: Lawson Creamer lawyers
- See: Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. Meiorin , [1999] 3 S.C.R. British Columbia (Superintendent of Motors Vehicles) v. British Columbia (Council of Human Rights) (“ Grismer ”), [1999] 3 S.C.R. 868 Source: Lawson Creamer lawyers
- Source: Lawson Creamer lawyers
- Meiorin test: That the employer adopted the standard for a purpose “rationally connected” to the performance of the job; That the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employee sharing the characteristics of the claimant without imposing undue hardship on the employer. Source: Lawson Creamer lawyers
- Effective Compensation Planning & Benefits Administration CG Hylton & Associates Inc In about 1995 I was working for a consulting firm and we received a call from one of our clients. They worked for a bank and did not know how to handle an employee, a Teller, who showed up at work one day with a nose ring. They asked what to do. Like any worthy consultant I said, I don’t know but I would find out. My research consisted of calling around to a couple of other banks including I think the Royal who said, ignore it, we embrace diversity in our organization, and we value that our employees should mirror our customers.
- Dennis v. Eskasoni Band Council Heard: March 3 - April 4, 2008 Judgment: September 12, 2008 A.D. Hadjis Member: 1 The Complainant, Perry Dennis, alleges that the Respondent, the Eskasoni Band Council, did not hire him to work as a deckhand on a fishing boat because he failed to pass a pre-employment drug screening test. He claims that the Respondent's decision discriminated against him on the basis of his disability (drug dependency), under s. 7 of the Canadian Human Rights Act, and that the Respondent's drug screening policy is itself discriminatory, within the meaning of s. 10 of the Act. I. The Parties' Participation at the Hearing Into the Complaint 2 The Commission had initially referred five other complaints, along with Mr. Dennis', to the Tribunal. Shortly before the hearing began, four of those complainants settled their complaints with the Respondent. The Commission then advised the Tribunal that it would no longer participate at the hearing. Two days into the hearing, the other remaining co-complainant also settled his case. 3 Mr. Dennis was not represented by legal counsel at the hearing into his complaint. On the sixth day of the hearing, after Mr. Dennis had closed his case, he suddenly and without any notice to the Tribunal or the registry officer, collected his things and left the hearing room during a break in the proceedings, at around 11:45 AM, accompanied by his common law spouse, Mary Lou Gould. He never returned. I adjourned the proceedings for about two hours while the registry officer attempted to telephone Mr. Dennis at home. There was no response. I asked all persons present, including the Mi'kmaq interpreter assigned to this case, whether Mr. Dennis had mentioned why he had left and for how long. No one was able to provide any further details. Mr. Dennis was only observed picking up his papers and leaving without saying anything. The Respondent, at that time, was part way through its examination in chief of an expert witness. Given the circumstances, and particularly Mr. Dennis' sudden departure without any notice, excuse, or explanation, I decided to proceed in his absence. The Tribunal's digital voice recording system continued to record the proceedings and a copy of the audio recording was subsequently provided to both parties. 4 Later that afternoon, the registry officer sent an e-mail message to Mr. Dennis informing him that the hearing would continue as scheduled the following day. He was invited to contact the registry officer by e-mail or telephone. Mr. Dennis replied by e-mail to the registry officer that evening. He explained how he felt "alone" and overwhelmed by the proceedings, placing some blame on the Commission for failing to participate at the hearing and "abandoning" him "to the wolves". The following morning, Mr. Dennis sent an e-mail to the registry officer asking whether Ms. Gould could appear on his behalf. She had been in attendance at the hearing since its outset and had already testified. I granted Mr. Dennis' request and she presented herself that afternoon. She is not a lawyer. She cross-examined the remaining witnesses who were called to testify by the Respondent and she made final submissions on Mr. Dennis' behalf. 5 The Respondent, for its part, was represented by legal counsel throughout the course of the hearing. II. The Facts Giving Rise to This Complaint A. Mr. Dennis' car accident 6 Mr. Dennis is a registered member of the Mi'kmaq First Nation community of Eskasoni situated about 40 km south of Sydney, Nova Scotia. The Respondent is the community's band council (the "Band"). 7 Mr. Dennis grew up in Eskasoni and has spent most of his life there. He is 38 years old. In 1989, he was involved in a serious car accident. His injuries included fractures to his neck. He testified that the fractures have left him with several painful chronic health problems. From time to time, his neck will swell up, which restricts head rotation and causes him neck and shoulder pain as well as sharp headaches. His physicians initially prescribed him some "strong" medication to deal with the pain but it had the effect of making his face look "droopy and sad", even though he felt fine. When he took weaker dosages, be claims to have become "addicted to the pills", although he did not provide any farther elaboration or explanation in his evidence. 8 Around 1990, Mr. Dennis discovered that using marijuana would relax him and ease his pain in his shoulders and neck, without the above-mentioned side effects that his physician-prescribed medication had caused him. He did not use marijuana on a daily basis, but only on the occasions when his pain would "flare up". On some pain-ridden days, however, he would not take any marijuana and simply "lived" with his condition and the pain. 9 At one point in 2004, Mr. Dennis recalls asking a physician at Eskasoni's health clinic to prescribe marijuana medicinally for him. Mr. Dennis claims that although the physician did not disapprove of his marijuana usage, he told Mr. Dennis that he was not authorized to give such prescriptions. Mr. Dennis did not apparently try to find another physician who possessed such authorization. Instead, Mr. Dennis continued to acquire his marijuana through other unspecified means. The physician was not called as a witness in this case. B. The Eskasoni Fishery 10 Prior to 2000, the Band's fishery operation was quite modest. It was run by a department of the Band known as the Eskasoni Fish & Wildlife Commission (EFWC). Most of its activity was in fisheries research and conservation. There were only about five full-time employees and between 15 and 40 casual workers throughout the year. 11 In two 1999 decisions (Marshall v. Canada , [1999] 3 S.C.R. 456 (S.C.C.) and Marshall v. Canada , [1999] 3 S.C.R. 533 (S.C.C.)), the Supreme Court affirmed the treaty rights of Mi'kmaq persons to hunt and fish, and to trade in the product of these activities, in order to earn a moderate livelihood for themselves and their families. Following these decisions, the federal Department of Fisheries and Oceans (DFO) entered into agreements with First Nations to provide them with the tools that would enable them to develop their commercial fisheries. The Band signed such an agreement in 2000 (the "Marshall Agreement"), pursuant to which the DFO provided funding for the purchase of fishing licences, vessels and other equipment, the construction of buildings, and the training of fisheries workers. 12 When the Marshall Agreement was implemented in 2000, there were very few Band members who had the skills required to fish commercially. Consequently, the Band put in place programs to train individuals as certified deckhands, first mates, and captains. Mr. Dennis had done some work from time to time as a deckhand for non-native fishers between 1992 and 2000, but he had never gaine d his certifi cation. Mr. Dennis therefore registered for the Band-offered training and he successfully obtained his deckhand ce rtificate in 2000. 13 A deckhand's duties include cleaning, maintaining, mending and emptying nets. Deckhands also place catches such as shrimp into special bags, empty and bait traps, and clean the deck and bilge. A deckhand takes directions from the captain who, aside from guiding the boat, also operates the hauler or winch that is used to lift traps and nets into the boat. 14 The fishing season for most of the species fished by the Band runs typically from March to November. In order to distribute jobs equally amongst the qualified deckhands in Eskasoni, the EFWC compiled a list annually on which band members would place their names and phone numbers. As a boat would get prepared to go out to sea, the EFWC would call up deckhands off the list on a rotational basis. The fishers were compensated based on the size of the catch and the price at which it was sold. This form of employment was considered seasonal work that entitled a fisher to obtain employment insurance benefits in the off-season, provided his or her earnings exceeded a basic threshold (about $11,000). Mr. Dennis placed his name on the list and was called to work in 2001, 2002, and 2003. His 2003 earnings were just under $30,000. Thus, Mr. Dennis and the other EFWC deckhands were neithe r full-time nor indeterminate employees of EFWC. Their employment was casual. In 2005, the EFWC handed off management of the commercial fishery to a corporation called Crane Cove Seafoods, which was wholly owned by the Band. For all intents and purposes, the Band remained in charge of its commercial fishery. 15 According to the testimonies of the current Chief and several band councillors, report s began surfacing during the commercial fishery's first two years of operation in 2001-02, about fishers going out to sea while under the influence of drugs or alcohol. Therefore, on December 10, 2002, a motion was passed by the Band Council that commercial fishers submit to mandatory drug testing. In the ensuing months, the Band appointed Jim Maloney to take charge of the development of a drag testing policy. Mr. Maloney was a member of another First Nation community in Nova Scotia. In the past, the Band had assigned him the task of developing other programs. By the summer of 2003, the proposed policy, entitled the "Eskasoni Fit to Work (Drug and Alcohol) Program Policy", had been prepared. 16 Mr. Maloney testified that he conducted a number of information sessions for Eskasoni's commercial fishers in order to introduce them to the new policy. Posters were put up advertising the events and a one-page letter s ummariz ing the policy was sent to the address of anyone involved in the EFWC fishery. The same letter was distributed to anyone who attended the information session. The letter was entitled "Open Letter to the Community of Eskasoni - Fit to Work (Drug and Alcohol) Program". It stated that the people of Eskasoni had identified drug and alcohol abuse as a serious problem that was affecting everyone's life within the community and that the Band's Chief and Council were committed to resolving the problem. The letter went on to state that the policy was required in the Eskasoni commercial fishing operations, since commercial fishing is "recognized as one of the most dangerous professions, making safety in the workplace essential in protecting the lives of those involved". 17 The letter also noted that the policy provides a series of "progressive steps, linked to treatment, for those who test positive", so that they may ultimately return to work. C. The "Fit to Work" Policy 18 On September 16, 2003, the proposed policy was formally adopted by the Band Council. Its implementation was to begin during the 2004 fishing season. The policy states that its general purpose is to ensure that EFWC employees "comply with and set an example in the community, by being drug and alcohol free in a safe, alcohol and drug-free workplace". The policy also extends to "contractors" and "contract workers". Some of the specific objectives mentioned include: • preventing employees from being in a position where impaired performance becomes a risk to them and the safe operation of EFWC facilities and equipment, • preventing accidents and injuries resulting from the use of drugs and alcohol, and • encouraging and supporting those with drug, alcohol and substance addictions in achieving and maintaining a "drug and alcohol free quality of life". 19 The policy puts an onus on EFWC management and staff to read, understand and acknowledge the policy. Employees must meet a "fitness to work" standard, which is defined as being fit and capable of performing their work. This includes being free from the influence of alcohol, illegal drugs, medications or substances that will affect performance. Employees are expected to seek advice and follow appropriate treatment if they suspect they have or are developing a substance dependency. 20 The policy provides that all EFWC employees are subject to drug and alcohol testing as a requirement of employment. Any job offer is conditional on passing the required test. Furthermore, random testing is to take place at the discretion of the employer throughout the year, without any advance notice. Testing may also take place after the occurrence of a "significant incident" that causes or has the potential to cause death, injury, or loss/destruction of equipment. In addition, if managers have reasonable cause to believe that an employee's actions, appearance or conduct while on duty are indicative of drug or alcohol use, they may require that the employee be tested, but the decision must be made with the concurrence of a second person wherever possible. 21 The substances for which testing is conducted are the following: • under the category of drugs - cannabinoids (marijuana, hashish, hash oil), stimulants (cocaine, opiates, amphetamines) and veterinarian anaesthetics (phencyclidine (PCP)); and, • under the category of alcohol -- beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol. The policy details how the screening test is carried out to see if any drugs and alcohol are present in amounts exceeding certain concentration levels (which are listed in a table). A positive result (i.e., in excess of these "cut-off" levels) is submitted to a more advanced test for further confirmation. Positive confirmation tests are then reported to a medical review officer for further evaluation and "to ensure that an individual is not assigned a false positive laboratory result".22 Where the medical review officer's evaluation confirms the initial result and rules out the possibility of a "false positive", a series of assessment and treatment options are made available under the policy. If it is the first time that the individual has tested positive, it will be "recommended" that the person seek drug and alcohol assessment and/or treatment, but this is strictly voluntary. The phone numbers for the Native Alcohol and Drug Abuse Counselling Association (NADACA) and the Mi'kmaq lodge, where addiction counselling is available, are listed in the policy. An individual who wants to try to be hired again or to return to work must complete a "return to work" drug screening test that produces a negative result before being considered for the job.23 If the individual tests positive a second time, then he or she will be required to see an addiction counsellor at NADACA for assessment but follow-up treatment will be voluntary, not mandatory. The individual remains ineligible to work. After a third failure, assessment and treatment become mandatory. The individual must complete the treatment before being re-hired, and the re-hiring is subject to the findings and recommendations provided by the addiction counsellor or treatment facility.24 After a fourth failure, the person will be dismissed and not eligible for re-hire until "proof of sobriety" for a period of one year. Thomas Johnston, the EFWC's executive director, testified that the EFWC interpreted this period not to mean exactly twelve months but rather just until the next fishing season. Thus, even if some fishers did not pass the fourth test in October, they could nonetheless enter the testing process all over again the following spring, along with all the other fishers.25 The policy stipulates that the EFWC will cover the cost of an initial substance abuse assessment of an individual who tests positive, but the cost of any other assessments or treatments is not covered by the EFWC. All testing results are confidential and are not to be disclosed except to the appropriate EFWC manager. Communication and correspondence of positive test results utilize a code rather than the individual's name and EFWC management is to maintain the list that matches the names with the codes in a secure location.26 An individual who commits a "policy violation" during an "on-call period" or while working on EFWC premises, vessels or equipment is, at EFWC's discretion, subject to immediate dismissal, suspension from work without pay, removal from EFWC vessels or premises, police notification where there is the presence of illegal drugs, or placement on "return to work" status. In this latter instance, the individual will be considered for a return to work after being re-tested, as discussed above.D. The 2004 Testing27 Mr. Maloney testified that for the 2004 fishing season, the Band hired on outside firm, East Coast Mobile Medical Inc. (East Coast), to conduct the drug testing on site in Eskasoni over the course of one day. He added that he sent notices to all fishers advising them that they had to register under the "Fit to Work" Program by March 8, 2004, on a list set up at the EFWC's offices. These notices were also broadcast on the local community television station.28 Mr. Dennis claimed in his testimony that he never got this notice and that he only learned of the drug testing process mere days before it was conducted on May 14, 2004. The evidence calls into question this claim. He testified that he was "out to sea" in January and February, when the notices were distributed, although the evidence was that crews would usually leave port for no more than three days at a time. In addition, Mr. Dennis' denial of knowledge was contradicted by the drug testing registration sheet that was filed in evidence. His name appears on the list along with his telephone number, his Band number, and an annotation stating "after 5 pm". Mr. Maloney testified that he recalled Mr. Dennis phoning him to register and indicating that he would prefer doing the testing after 5 pm. Mr. Maloney added that he did not object to this request since the EFWC was trying to be as flexible as possible in order to ensure that each fisher would be tested.29 Furthermore, there is evidence that in March 2004, after the EFWC began registering persons for the testing, several fishers joined forces to form a union to oppose the imposition of the "Fit to Work" policy. Mr. Dennis helped organize the union and his name appears as a supporter in an open letter that was prepared prior to March 15, 2004. The letter invites all Eskasoni residents to attend a union meeting dealing with the "Fit to Work" policy. The meeting was held on March 22, 2004, and the minutes show that Mr. Dennis attended. It does not seem credible, therefore, for Mr. Dennis to claim that he did not know until mere days before, that the testing was forthcoming.30 Mr. Dennis disapproved of the policy. He felt that it was an attack by the Chief and the Band Council against certain Band members, to prevent them from earning a good income. After being tested on May 14, 2004 (urinalysis and breathalyser), he contacted Mr. Johnston, who at the time was director of operations at EFWC, and learned that he had failed the urinalysis by testing positive for the presence of cannabis. Mr. Dennis testified in chief that he was not told he could be re-tested that season. He claims that Mr. Johnston told him that he would be denied work that summer and that he could only re-test the following year at his own cost.31 Mr. Dennis' evidence on these points is contradicted by the evidence of Mr. Maloney and East Coast's business records. Mr. Maloney recalls having spoken to Mr. Dennis on the phone after he had failed the pre-employment drag testing. He remembers Mr. Dennis stating that he was eager to be re-tested and, hopefully be allowed to return to work that summer.32 So Mr. Maloney undertook to book a new appointment for testing, which would have to take place at East Coast's facility in North Sydney, Nova Scotia. Mr. Maloney testified that he advised Mr. Dennis by telephone that an appointment was set for June 18, 2004. Mr. Dennis never showed up for this appointment. Mr. Maloney therefore booked a second appointment for Mr. Dennis, for August 6, 2004. Mr. Maloney recalls telling Mr. Dennis that it was important he attend because East Coast had billed the Band for the first appointment even though Mr. Dennis had not shown up. The East Coast records show that Mr. Dennis had been booked for both of these appointments, but that he had not shown up on either date.33 I find this evidence persuasive and I am not convinced by Mr. Dennis' claim that he was told to come back "next year" to be re-tested. I note that such a response does not accord with the policy, which states that a person is entitled to be re-tested as many as four times. If the individual fails the fourth test, he or she may still take the test again one year later. This is the only time limitation mentioned. There are no time conditions attached with respect to the first re-testing. Presumably, whenever an individual feels ready to retake the test, he may do so. The entire testing and re-testing process set out in the policy is intended to be completed by the end of the annual fishing season, in keeping with the re-hiring process that takes place at the start of each fishing season. Thus, every fisher must pass a test every year, even if he or she tested negative the previous season. Furthermore, the policy provides that even in the worst case, where an individual fails the test four times, he or she remains ineligible for re-hire only until the following year.34 Mr. Dennis emphasized in his testimony that East Coast only came to Eskasoni once a year to test all the fishers. This may have been the source of his misunderstanding regarding when he could take a re-test. There was some suggestion in the evidence that he may have been unwilling to go elsewhere to take the test. It was not unreasonable, however, for the Band to have required an individual who is seeking employment but failed the initial on-site test, to attend East Coast's offices in North Sydney (about an hour's drive from Eskasoni) to be re-tested, rather than paying for East Coast to bring its equipment down to Eskasoni again just to test one individual.35 Although Mr. Dennis did not go to East Coast's facility in North Sydney to be tested, he did visit the Eskasoni Community Health Centre on June 23, 2004, where he was examined by an attending physician. The physician handwrote Mr. Dennis a five line note addressed "to whom it may concern" in which he stated that, based on his examination, Mr. Dennis "appears to be fit to work". No further comment is provided and in particular, there is no mention made of any testing by the physician for drugs or alcohol.36 Since Mr. Dennis did not end up taking another drug screening test in 2004, he was not cleared to work as a fisher for the EFWC that year.37 After learning that he had failed the drug screening test, Mr. Dennis filed a "Letter of Grievance" with the Band, complaining of "unfair testing" by the EFWC. He alluded in the letter to a protest that the fishers involved in the union had conducted outside the EFWC offices for several days in May 2004. Allegedly, the Chief had met with them and agreed to allow fishers to work even if they tested positive. However, several days after the alleged agreement, the Band Council met and reaffirmed that the policy would be enforced. Mr. Dennis refers in his grievance to the Canadian Human Rights Commission policy on alcohol and drug testing which he had apparently consulted. He asserted that the Commission's policy "clearly states" that his rights were being infringed.38 Interestingly, Mr. Dennis makes no mention in his letter of any requirement for him to use marijuana as a pain medication for his neck and shoulder. He refers to having experienced headaches, fatigue, depression, insomnia, and loss of appetite, but he attributes these problems to the "many stressors" brought upon him by the application of the policy that resulted in his "inability to work". Mr. Dennis attached the above-mentioned physician's note to his grievance letter.39 On July 7, 2004, Mr. Dennis filed the present human rights complaint, in which he stated that he was denied employment "because of the fact that I have a physical disability and I take the drug marijuana". In his Statement of Particulars, however, which he later filed jointly with the Commission, he made no mention of a physical disability, but instead alleged that the Band discriminated against him on the basis of disability or perceived disability, which he specified as being "drug dependency". He did not allege discrimination based on any disability relating to his back and neck injury. He led his case in keeping with the allegations set out in the Statement of Particulars. The Band, in turn, took the position that the disability in issue is drug dependency and presented its case accordingly. Although the actual complaint is somewhat ambiguous in its description of the alleged discrimination, it would in my view be unfair to the Band to treat this matter as anything other than a claim of discrimination based on drug dependency, given the way that the case has unfolded.E. The 2005-2006 Testing40 Drug screening was conducted for all fishers again, in 2005, and Mr. Dennis was tested on April 22, 2005. He tested positive for "cannabinoids". In cross-examination, Mr. Dennis was asked if he sought re-testing in 2005. He could not recall but said that he "must have been doing something". There is no evidence in the record to indicate that he sought re-testing in 2005.41 As the 2006 fishing season was approaching, Mr. Dennis decided to take measures to ensure he could pass the drug screening. He stopped using marijuana altogether. However, the anguish he was feeling of not being able to earn a good living and look after the well-being of his family had led to his becoming very depressed. One evening, he began drinking alcohol even though he had been "sober" for seven years. His drinking became excessive, to the point that the RCMP had to intervene and take him to the detachment where he spent the night.42 Fortunately for Mr. Dennis, a community Elder learned of his troubles and stepped in to help Mr. Dennis by taking him to a sweat lodge. Traditional healing methods were administered to him for his pain, including the application of bear grease. Mr. Dennis testified that he became better able to cope with his pain as a result of these healing methods.43 On March 24, 2006, Mr. Dennis was tested again for the presence of drugs. This time the tests came back negative. His name was thus added to the list of available fishers and he worked that season.44 In 2007, Mr. Dennis did not register to take the EFWC's drug testing. Mr. Dennis apparently formed the mistaken opinion that he did not need to formally register for testing in 2007 because he had passed the previous year. He thought he was entitled to merely show up on the day of the testing and provide his sample. This understanding was inaccurate. Mr. Dennis (and all fishers) had to formally register each year for testing. Since Mr. Dennis had not registered he was not entitled to submit himself for testing in 2007.45 Regarding the 2008 season, the hearing was completed as the fishing season was about to start. The EFWC's fishing manager testified that Mr. Dennis had not shown up for his scheduled drug testing appointment on March 28, 2008. The evidence before me with respect to this event and the 2008 season overall is, however, insufficient for me to make any findings.III. The Legal Principles Applicable to This Case46 Mr. Dennis' complaint is brought pursuant to sections 7 and 10 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy or practice that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.47 Section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act specifies that the term "disability" includes "previous or existing dependence on alcohol or a drag".48 The initial onus is on a complainant to establish a prima facie case of discrimination (O'Malley v. Simpsons-Sears Ltd. (S.C.C.) at para. 28 ("O'Malley")). A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.49 Once the prima facie case is established, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice (Lincoln v. Bay Ferries Ltd. (F.C.A.) at para. 18). An employer's conduct will not be considered discriminatory if it can establish that its refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1)(a) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act). (emphasis added) The French rendering of s. 25 utilizes the term "la dépendance ... envers l'alcool ou la drogue". Le Petit Robert de la langue française, 2006 defines "dépendance", in this context, as: Etat résultant de la consommation répétée d'une substance toxique, qui se caractérise par le besoin de continuer la prise et d'augmenter les doses. Translated to English: State resulting from the repeated use of a toxic substance, characterized by the need to continue its use and increase the amount taken. 53 Both these definitions, in my view, capture the meaning of the term as it is used in s. 25. Applying these definitions to the present case, I find that there is insufficient evidence to establish prima facie that Mr. Dennis was dependent on marijuana (i.e., unable to do without it, or alternately, in a state where he needed to continue its use and increase the amount taken). 54 He did not call any physician (including the Eskasoni Community Health Centre physician whom he visited on June 23, 2004) to testify that he was dependent on marijuana, nor did he file any expert report to the same effect. No other witness was called to confirm the extent of his marijuana usage, even though Mr. Dennis initially stated in his testimony in chief that "everyone in the community" knew of his "condition" and of his "habit". In cross-examination, however, he testified that the majority of the people in the community did V. The Section 7 ComplaintA. Has aprima facie case been established under s. 7?(i) Was Mr. Dennis disabled (i.e. drug dependent) within the meaning of the Act?50 I find that Mr. Dennis did not demonstrate that he was disabled within the meaning of the Act. The evidence unquestionably establishes that he was a user of marijuana but it was not sufficient to establish prima facie that he was drug dependent.51 Mr. Dennis testified that he suffers from chronic pain as a result of the traffic accident in which he was involved in 1988. Several documents dating from 1988-89 were filed detailing some of the treatments that he received following the accident. His common-law spouse attested in her evidence to the outward signs of pain that Mr. Dennis presents to this day. There is no basis, in my view, to question Mr. Dennis' claims about the physical pain that he experiences.52 More importantly, however, no evidence was put before me that he was dependent on marijuana when he failed the drug test in 2004 and filed this complaint. To establish a prima facie case, the evidence led must be sufficient to "cover the allegations made". Mr. Dennis' allegation is that he is "dependent" on the drug and is therefore disabled. But I find that his evidence only demonstrates that he used the drug, not that he was "dependent" on it. The New Shorter Oxford English Dictionary's definition for the word "dependent", in the context relevant to s. 25 of the Act, is the following:Resting entirely on someone or something for maintenance, support, or other requirement; obliged to use something; unable to do without someone or something, especially a drug; maintained at another's cost.
- Kellogg Canada Inc. v. B.C.T., Local 154-G 1 In the present case, the union grieved the termination of an employee who suffered from the disability of alcoholism and allegedly had breached a last chance agreement that was entered into by the parties after the failure of repeated attempts by the employer to accommodate and rehabilitate him. For reasons which follow, the grievance is dismissed. II. Factual Background: 2 At the time of his termination, January 6, 2005, the grievor had over twenty-two years of seniority. He became a full-time employee in October, 1983, and in the five years preceding that, worked as a summer student in the plant. Working for the employer, it seems, was a tradition in the grievor's family. Both his father and grandfather had worked for the employer. His cousin and her husband still work in the employer's facility. 3 The grievor's job as a Process Operator required him to work as part of a crew in a mechanized environment within the employer's plant. The grievor's regular crew worked in the Rice and Special K departments. It was headed up by a Group Leader, who was a management employee. On occasion, the grievor would be assigned to Process Operator positions in the Mini-Wheat and other departments. 4 According to the grievor, he began to experience problems with alcohol addiction about ten years ago. The records of the employer indicated that he commenced having difficulty in maintaining his attendance in the summer of 1999, and was placed in the employer's attendance counselling program. His attendance gradually worsened as time went on. On August 17, 2001, he received a written warning for absenteeism. Then on November 7, 2001, he received another written warning for leaving the plant two hours before the end of his shift without receiving permission from his Group Leader or notifying Security. By October 28, 2002, his absenteeism rate had skyrocketed to 11.4%, which was 7.4 % above the 4 % plant standard. 5 Ms. Dolores Bryant, the Assistant Manager, Employee Relations, at the employer's facility, testified that on November 6, 2002, she was approached by a number of union representatives, the grievor's Group Leader, and the Co-Chair of the employer's Employee and Family Assistance Plan (EFAP), Mr. Rick Donkervoort. They requested to meet with her regarding the grievor. At the meeting, they advised her that for some time the grievor had been coming into work drunk and was drinking on the job. Until then, he had been enabled by co-workers who protected him and covered for him. At the same time, the grievor's Group Leader and the union had made efforts to assist the grievor in overcoming his alcohol addiction problem through the employer's EFAP program. Nothing, however, seemed to work, and it had been decided that no one was going to protect the grievor any longer. 6 At the hearing, the grievor confirmed that in 2001 or 2002, he had been referred to the employer's EFAP program for assistance in overcoming his addiction to alcohol. This led to his admission to a three-week residential program at the Westover Treatment Centre for treatment of alcohol abuse. The treatment program was paid for by the employer, and the grievor received sick leave benefits from the employer while he was there. As was made clear in Ms. Bryant's meeting with the grievor's EFAP advisor, Mr. Donkervoort, his Group leader, and union officers, however, the treatment program had failed to turn the grievor around and they needed her assistance in deciding what to do next. 7 At the end of the meeting, it was decided that some of the union representatives and Mr. Donkervoort would meet with the grievor and advise him that he would be called in to a follow-up meeting in the Human Resources department to discuss the seriousness of his situation, i.e., that he was placing his job in jeopardy. The hope was that the grievor would admit that he had a drinking problem, conclude that he had hit bottom, and then begin in earnest the recovery process. 8 The follow-up meeting was held on December 6, 2002. It was attended by Ms. Bryant, the grievor, Mr. Donkervoort, and union representatives. In the course of the meeting, Ms. Bryant noted that the grievor had missed a November 12, 2002, counselling session with the London Employee Assistance Consortium (LEAC) that had been scheduled as part of his therapy under the employer's EFAP program. The grievor did not give any reason for this, but asserted that he had abstained from using alcohol for three weeks because he realized that he was in jeopardy of losing his job. He also said that he was going to book an appointment with a LEAC counsellor. 9 Unfortunately, the grievor did not maintain his sobriety. Instead, he slipped back into his old pattern of alcohol abuse. On June 19, 2003, the grievor's Group Leader, Mr. Stephan Regnier, called Ms. Bryant at the commencement of the afternoon shift and advised her that the grievor approached him to ask for help with his drinking problem. At the time, the grievor was obviously under the influence of alcohol. The grievor told Mr. Regnier that he had been drunk all week and did not sleep before coming to work. 10 Thereafter, Ms. Bryant and the Human Resources Manager, Mr. Bob Campling, held a meeting with the grievor. Also in attendance were Bob Thompson, his union representative; Mr. Regnier; and, Mr. Donkervoort. Ms. Bryant advised the grievor that he was in a lot of trouble, especially since he'd already been warned that his job was in jeopardy if he came in to work under the influence of alcohol. She told the grievor that the employer, as before, would get him some help from EFAP to assist him in dealing with his alcohol abuse problem, but that the employer was going to consider taking disciplinary steps against him for coming in to work under the influence. Ms. Bryant also warned the grievor that if he came in to work under the influence of alcohol in the future, he would be immediately suspended. Mr. Campling added that there would come a time when the grievor would run out of chances, and that he should take advantage of the opportunity that was being given to him. After the meeting concluded, Mr. Donkervoort drove the grievor home. 11 The grievor, however, did not take up the opportunity that the employer offered to him. He did not follow up with any additional counselling or treatment under the EFAP program. On November 4, 2003, the grievor once again reported for work under the influence of alcohol and was determined by his Group Leader, Mr. Regnier, to be unfit to perform his job. Mr. Regnier sent him home and then reported the incident to Ms. Bryant. 12 On November 6, 2003, Ms. Bryant held another meeting with the grievor. Also in attendance were Mr. Regnier, Mr. Donkervoort, and two union representatives, Mr. Thompson and Mr. Peter Westelaken. At the meeting, Ms. Bryant expressed the employer's concern about the grievor's showing up for work drunk. She reminded the grievor that as a Process Operator he worked in a mechanized environment, with moving equipment and forklifts all about. It jeopardized his own safety and the safety of his co-workers when he was in an inebriated condition in the plant. 13 Later on the same day, the grievor was presented with a letter confirming the meeting. The letter also set out the following conditions for the maintenance of his employment: 1) You will be suspended for work for three days, including November 4, 5 and 6, 2003. 2) You will agree to participate in an assessment and counselling program which is designed to assist you with your alcohol problems. 3) You will agree to accept and follow the recommendations made by the program's counsellors. 4) You will share the results of the assessment centre with Bob Campling, Human Resources Manager or Dolores Bryant, Human Resources Business Partner, including the recommendations that have been made. The letter was signed by Ms. Bryant. The grievor also signed to indicate his agreement "to abide by the above-noted conditions." Mr. Donkervoort signed as a witness to the grievor's agreement. The union, however, was not a signatory to the agreement. 14 Shortly thereafter, it was agreed by the employer and the union that the grievor would remain on suspension pending his admission to a treatment program. Under the employer's EFAP program, the grievor had the option to choose either one of two such programs. He could choose to return for a second round of treatment at the Westover Treatment Centre, in which case the employer would pay for the cost of the treatment program, or seek treatment at Bellwood Health Services, for which he would have to pay out of his own pocket. In either case, the employer would pay short-term disability benefits to the grievor while he was undergoing treatment. 15 The grievor chose Bellwood. On November 19, 2003, Bellwood recommended that the grievor enter its 45-day intensive residential alcohol dependency program, which would include a three-week relapse prevention component and a one-year aftercare and recovery phase. Despite the fact that this treatment package would cost him $19,750.00, the grievor decided to take it, and he was booked to enter the residential program on November 27, 2003. 16 On January 9, 2004, the grievor completed the residential program at Bellwood and, by all accounts, had done well. Thereafter, on January 15, 2004, Ms. Bryant and Mr. Campling called a meeting with the union and the grievor to negotiate a last chance agreement covering the grievor's return to work. Present at the meeting were Mr. John Parachuk, the union President; Mr. Art Davis, the Chief Steward; and, Mr. Donkervoort. The last chance agreement imposed the following conditions of employment upon the grievor: 1. You will remain under suspension until Monday, January 19, 2004. 2. You will be scheduled for work commencing Monday, January 19, 2004. 3. You are to attend a minimum of three A.A. meetings per week. You will provide confirmation of attendance on a weekly basis to Dolores Bryant. These forms will be delivered no later than Monday of each week, for confirmation of the previous week's attendance. 4. You are to attend each of the aftercare mini sessions offered by Bellwood Health Services and provide proof of attendance to Dolores Bryant, upon return from each session. 5. You are to attend work every day and report to work in a sober condition. If for any reason you are unable to report for your scheduled shift, you must provide proof of that reason. 6. If you are unable to report for your scheduled shift, you are expected to follow the established call-in procedure, and place an immediate call to Dolores Bryant, indicating the reason for your absence. A voice message is to be left if you are unable to contact Dolores directly. 7. Failure to adhere to any one of these conditions will result in the immediate termination of your employment. 8. These conditions are subject to review on January 14, 2005. The agreement was executed on January 15, 2004, by Mr. Campling and Ms. Bryant on behalf of the employer, and Mr. Parachuk and Mr. Davis on behalf of the union. The grievor also signed the agreement to indicate that he "read and understood all of the above conditions and agree to abide by them. I understand that my employment will be terminated if I fail to abide by these conditions." 17 Soon after the grievor's return to work, however, rumours began to surface that the grievor was once again coming in to work drunk. On March 3, 2004, Ms. Bryant and Mr. Campling called a meeting with the grievor and the union to discuss the matter. The meeting was attended by the grievor; Mr. Art Davis, the Chief Steward; Mr. Ozzie Molinera, the grievor's then Group Leader; and, Mr. Donkervoort from EFAP. When confronted with the rumours that he had been showing up for work in an unfit state, however, the grievor denied everything. He suggested that his co-workers might have been confusing a medical condition that he had developed, in which he suffered seizures from time to time, with symptoms of alcohol abuse. Although the grievor looked dishevelled, with one or two days of growth of beard on his face, he maintained that he had been sober since returning from rehab and was proud of himself. In the face of this denial, and with no concrete proof that the grievor was coming in drunk again, Ms. Bryant could not take any further action. She hoped, however, that the meeting would cause the grievor to "shape up." 18 The rumours, however, did not subside. On August 19, 2004, the grievor's then Group Leader, Mr. Ray Roberts, met with the grievor and a union representative, Mr. John Deveaux, to discuss suspicions that had been expressed by several people that the grievor had returned to his old drinking habits. For instance, on August 13, 2004, Mr. Roberts told the grievor, his then Group Leader, Mr. Regnier, noticed him lying on the counter in the lab. When he asked the grievor what was wrong, the grievor replied that he had some dental work done and was on meds that made him feel "not right." Despite the strangeness of this behaviour, Mr. Regnier declined to send the grievor home. 19 On September 2, 2004, Ms. Bryant held a follow-up meeting to the one held by Mr. Roberts. In attendance were the grievor; Mr. Art Davis, the Chief Steward; and, once again, Mr. Donkervoort. At the meeting, Ms. Bryant reviewed the suspicions that had once again surfaced about the grievor. She told the grievor that while no discipline was going to come out of the meeting, where there was smoke there usually was fire, and she was not confident that he was living up to his last chance agreement. The grievor was passive in his response, but nevertheless assured Ms. Bryant that he was living up to the agreement. Ms. Bryant urged him to seek out assistance from Group Leaders, Human Resources or EFAP counsellors when needed, and warned him that, while only he knew how well he was doing, others were keeping a watchful eye on him. 20 At the hearing, the grievor agreed on cross-examination that he had gone back to drinking in the summer of 2004. He said that he hid this from his counsellors at Bellwood and reported to them that he was still clean and sober. By September 14, 2004, he said, he had gotten back on track and was no longer drinking. 21 About one month later, however, on October 19, 2004, concrete evidence was presented to Ms. Bryant to indicate that the grievor was not living up to the conditions of his last chance agreement. When Ms. Bryant arrived at the plant, Mr. Art Davis, the Chief Steward, told her that the grievor's then Group Leader, Ms. Judy Kainz, was looking for her because she had smelled alcohol on the grievor's breath. Ms. Bryant immediately called a meeting with the grievor. The meeting was scheduled for 9:00 a.m. that day. Mr. Davis and Mr. Donkervoort also were called in to the meeting. The grievor arrived first. He was asked to wait in a small conference room on the second floor of the office suite. About fifteen minutes later, Ms. Bryant, Mr. Davis and Mr. Donkervoort arrived. Ms. Bryant testified that they all noticed that the room smelled of alcohol. It seemed to Ms. Bryant that the grievor was not sober. He was glassy-eyed and dishevelled. According to Ms. Bryant, Mr. Davis and Mr. Donkervoort indicated that they noticed the same symptoms. 22 Nevertheless, when Ms. Bryant told the grievor that there had been an accusation of his smelling of alcohol, the grievor acted surprised. When he was told that the accusation was about his smell on that very day, the grievor maintained his demeanor of surprise. He said that he thought that he was doing better and he wished that these accusations would end. When Ms. Bryant asked him when was the last time he had been drinking, the grievor responded that it was weeks and weeks ago, on a weekend, and that it had been a mistake. 23 Ms. Bryant then asked the grievor to explain what had happened on the two previous Fridays, October 8 and 15, 2004. As to October 8, Ms. Bryant had been advised that on that day, Mr. Davis, the Chief Steward, and Mr. Donkervoort had given the grievor a strongly worded warning that he was using all his chances up with the union unless he straightened up his act. After that, the grievor was sent home. The grievor claimed to Ms. Bryant, however, that he went home voluntarily because he was upset at the accusations being levelled against him. As to October 15, Ms. Bryant had been advised that a co-worker with whom the grievor was working had told the grievor to stay out of sight for the rest of his shift or go home because he was obviously unfit to work. The grievor claimed to Ms. Bryant, however, that he was allowed to go home early because he had finished his job. 24 At this point, Ms. Bryant told the grievor that she did not have any confidence that he was abiding by his last chance agreement. In her opinion, he had not appeared to internalize any changes usually associated with rehabilitation. Each time she talked to him about the situation, she said, he acted surprised, vaguely upset, and had very few other things to say for himself. She added that she had to consult with Mr. Campling, but in her opinion, the employer had very little room to move and the grievor's employment was in very serious jeopardy. Ms. Bryant then called a recess so that she and Mr. Campling could consult with each other. When she returned, Ms. Bryant told the grievor that the smell of alcohol was in the room. She advised the grievor that he was suspended immediately and that a decision regarding his future employment would be made at another time. Ms. Bryant then left. Mr. Davis and Mr. Donkervoort remained in the room with the grievor. 25 About fifteen minutes later, Mr. Davis, the Chief Steward, asked Ms. Bryant to come back to the conference room. When she arrived, the grievor was crying. Apparently, Mr. Davis had offered to take the grievor for a blood test to prove that he had not consumed any alcohol and when confronted with this offer, the grievor decided to come clean. He confessed to Ms. Bryant that he had been drinking and that he drank on the previous night, which was the evening of October 18, 2004. When asked by Ms. Bryant what should happen next, he agreed that he had not been making use of the support systems that were in place and suggested that he should see a counsellor from LEAC or go into Detox. Ms. Bryant then advised the grievor that his confession did not change anything and that he was still suspended until further notice. Shortly thereafter, Mr. Donkervoort and Mr. Davis took the grievor to Detox. 26 At the hearing, however, the grievor told quite a different story. He insisted that he was sober when he reported for work on October 19, 2004. He said that on the evening of October 18, he drank three-quarters of a mickey of liquor while watching a baseball game on television. The game ended at about 1:30 a.m., and after that he went to bed. He then got up at 5:45 a.m., brushed his teeth, got dressed, and left for work at about 6:10 a.m. When he arrived at work, he changed into his uniform and went about performing his duties. He felt sober and did not think that he smelled of alcohol. 27 On cross-examination, the grievor agreed that he understood from his treatment program at Bellwood that he was not to touch alcohol. He said that it was a mistake to purchase the mickey of liquor. He added that he did not recall telling Ms. Bryant in the meeting of October 19 that he'd been drinking weeks and weeks ago, and that he drank only on weekends. He denied deceiving others about his drinking after he returned from the Bellwood treatment program and said that he could only recall one time other than the evening of October 18 when he drank. When pressed about the multiplicity of rumours that he had returned to his old drinking habits, the grievor stood by his position that he only drank twice since leaving Bellwood. 28 On November 4, 2004, Ms. Bryant held another meeting with the grievor. Also in attendance were Mr. Davis and Mr. Donkervoort. At the time, Ms. Bryant had in her possession a letter formally terminating the grievor. She did not issue the letter, however, because some of the things that the grievor said in the course of the meeting seemed to give a glimmer of hope that he was prepared to make the necessary changes in his lifestyle. According to Ms. Bryant, the grievor said that after he was suspended, he stayed the entire weekend in Detox, actively participated in AA meetings almost every day, met with a LEAC counsellor and had a psychiatric assessment. He also made another appointment with the LEAC counsellor and planned to attend the Bellwood minisession to be held that weekend. He admitted that he had not been applying himself and that it was time to come clean. He was determined to get to the bottom of his problems, he said, because he could not continue living this way. While the grievor denied it in his testimony at the hearing, Ms. Bryant stated that he also admitted that he'd not been sober, had not been trying and had violated the last chance agreement. 29 According to Ms. Bryant, the grievor added that he knew that he had no trust from the employer and the union because he had told so many lies in the past. Ms. Bryant acknowledged that he was right because they had trusted him many times over to do what was right and he had not come through. His credibility was shot. Ms. Bryant noted that the grievor presented a substantial risk to the employer. If he were to be allowed back into the plant while under the influence of alcohol and an industrial accident resulted, the Ministry of Labour likely would hold the employer responsible for the resulting critical injury or death. 30 Ms. Bryant also testified that Mr. Donkervoort noted that he was disappointed in the grievor. He'd been dealing with the grievor over a number of years and yet the grievor was still at first base. He never kept his promises. Each of Ms. Bryant, Mr. Davis and Mr. Donkervoort then asked the grievor what would make any promises that he made now any different from the ones that he had made in the past. How would he prove to them that he was fit to work if he were allowed back? 31 The grievor responded that he would do whatever it took to prove that he was fit to work. He said that he would go on antibuse, take periodic blood tests or breathalyser tests, whatever. When Ms. Bryant heard this, she told the grievor that there was a termination letter waiting for him but that a lot of things that he said were good. As a result, she would stay her hand and allow the grievor sufficient time to show that he was sincere and a reasonable risk for returning to work at the plant. It was up to him, she said, to figure out what steps to take but a number of things that he said or suggested indicated that he was on the right track. With that, she continued his suspension into the first week of January, 2005, and indicated to the grievor that at the end of the suspension a decision would be made about his future employment. 32 The grievor testified that after the meeting he took four steps to show the employer that he was serious about his commitment to change his life and go in the right direction: (1) He claimed that he stopped drinking; (2) he kept up his counselling; (3) he continued going to AA; and, (4) he bought a breathalyser and took it to the plant on ten days between December 22, 2004 and January 6, 2005 to have independent witnesses confirm that when he blew into it, the reading was 0.0. He did not go through another residential treatment program because, in the opinion of counsellors, his past treatment at Westover and Bellwood had given him all the tools and skills that he needed to succeed in overcoming his addiction. 33 The employer was provided with written confirmation of each counselling session and AA meeting that the grievor attended. The grievor also provided the employer with a sheet that was signed by all his independent witnesses confirming the readings of 0.0 in his breathalyser tests. The employer, however deemed these efforts to be inadequate proof that the grievor had been able to make the necessary long-term and sustainable changes in his lifestyle to minimize the risk involved in returning him to work. On January 6, 2005, Mr. Campling sent the grievor a letter of termination noting the above, and terminating him for just cause and his failure to abide by his last chance agreement. On January 10, 2005, the union filed the grievance leading to the present arbitration. III. The Issues Raised by the Parties: 34 At the hearing, the parties raised the following issues: (1) Whether the grievor was shown to have breached his last chance agreement; and, (2) Even if there was a breach of the last chance agreement, whether the employer had just cause to terminate the grievor. I will address these issues seriatim hereinbelow: IV. Consideration of the Issues: (1) Breach of the Last Chance Agreement: 35 In the present case, I do not have any difficulty in concluding that the grievor breached his last chance agreement when he reported for work on October 19, 2004. The last chance agreement required him, inter alia, to "report to work in a sober condition." According to the evidence of the employer, between about 9:00 and 10:00 a.m. that day, the grievor smelled so strongly of alcohol that the odour was immediately apparent to everyone around him in a small conference room. This was despite the fact that upon arriving at work about two hours earlier, the grievor had changed from his street clothes into his Kellogg's uniform. According to Ms. Bryant, she, the Chief Steward, Mr. Davis, and the co-chair of the employer's EFAP program, Mr. Rick Donkervoort, also noted that the grievor was glassy-eyed and dishevelled. 36 The state that the grievor was observed to be in at that time of day seemed to be entirely at odds with his own description of his condition. According to the testimony of the grievor, he drank three-quarters of a mickey of liquor on the evening preceding October 19. He estimated that he took his last drink about eight to nine hours before Ms. Bryant and the others met with him in the meeting, because he went to bed at about 1:30 a.m. that morning. When he got up and went to work, the grievor said, he did not think he smelled of alcohol and felt sober. 37 It seems to me to be highly unlikely that a person who took his last drink that many hours before being observed in the meeting called by Ms. Bryant would have smelled and looked as bad as the grievor reportedly did between 9:00 and 10:00 a.m. on the morning of October 19, 2004. If the testimony of Ms. Bryant is preferred, it raises a strong inference that the grievor did not finish drinking until much closer to the time his shift was to start and likely drank far more than the three-quarters of a mickey of liquor that he was willing to admit he consumed. At the very least, Ms. Bryant's testimony demonstrated that the grievor was not "sober," as required by the last chance agreement but was "affected by alcohol." See the definition of "sober" in the Concise Oxford Dictionary of Current English, Eighth Edition (Clarendon Press, Oxford, 1990). See also, the definition of "sober" in Black's Law Dictionary, Revised Fourth Edition (West Publishing Co., St. Paul, Minn., 1968); and, Edison v. Treasury Board (Transport Canada) , [1990] C.P.S.S.R.B. No. 184 (Can. P.S.S.R.B.), at 6, which noted that a decision-maker "should be cautious on the side of safety and protection to the public and other employees" in reviewing an employer's conclusion that a grievor was unfit to work due to the consumption of alcohol. 38 I accept and prefer the evidence of Ms. Bryant. The only witnesses who were called in the arbitration were Ms. Bryant and the grievor, and, in my opinion, any conflict between their respective versions of the same event should be resolved by preferring Ms. Bryant's testimony over that of the grievor. Her testimony was straightforward and, in most instances, backed up by notes that she made contemporaneously with the meeting or event that she was describing. The grievor's evidence, on the other hand, was not capable of being credited with a similar degree of weight. Beyond being motivated by the grievor's own self-interest, which understandably might be expected of someone with a stake in the outcome of the arbitration, his testimony was plainly coloured by a desire to minimize the severity of his resistance to changing his lifestyle in order to attain and maintain sobriety. This led to serious inconsistencies in his evidence. For example, at one point in his cross-examination, the grievor admitted that in the summer of 2004, which was after he returned from the Bellwood program, he went back to drinking and lied to his counsellors at Bellwood about it by telling them that he was still clean and sober. Later in his cross-examination, however, the grievor denied deceiving others about his drinking after returning from Bellwood and repeatedly insisted that he could only recall one time after his return from Bellwood other than the evening of October 18, 2004, when he drank. 39 Moreover, the claim of the grievor that he was sober when he reported for work on October 19, 2004, was flatly contradicted by his own actions at the time. The grievor declined to take a blood alcohol test on October 19, and after tearfully confessing to drinking on the evening of October 18, he spent the entire weekend in Detox. When asked about these actions on cross-examination, the grievor could only come up with implausible excuses. He said that he declined the blood alcohol test because he was afraid that it would show trace amounts of alcohol in his system. The presence of trace amounts, however, would have strengthened the grievor's claim to have been sober when he reported for work. As to his motivation for spending the entire weekend in Detox, the grievor said that he did not know why he went. He did not need to dry out, and was merely responding to a suggestion from Mr. Davis and Mr. Donkervoort that he go there. Mr. Donkervoort was the co-chair of the employer's EFAB program, and was highly experienced in dealing with alcohol and other addiction problems. At the time, he had been dealing with the grievor's alcohol problem for at least four years. Given Mr. Donkervoort's professional qualifications and experience, it taxes credulity to suggest that he would take the grievor to Detox if he did not need to be there. 40 In the light of the foregoing considerations, I have been led to conclude that the grievor breached his last chance agreement when he reported for work on the morning of October 19, 2004, because he was not "in a sober condition" as required by the agreement. The issue is resolved in favour of the employer. (2) Just Cause for Termination: 41 It was common ground between the parties that because the last chance agreement did not make termination for breach of its requirements unreviewable at arbitration, I had jurisdiction to review on a just cause standard the merits of the grievor's termination. It also was agreed that because addiction to alcohol was classified as a disability, I had jurisdiction to determine whether, at the time of termination, the employer had accommodated the grievor to the point of undue hardship as required by the Ontario Human Rights Code. I might add that the issues of just cause and accommodation bring into play at least one further matter: the obligation of the employer under s. 25(2)(h) of the Ontario Occupational Health and Safety Act to "take every precaution reasonable in the circumstances for the protection of a worker"; and the corresponding duty of a worker under s. 28(2)(b) of the Act not to "work in a manner that may endanger himself, herself or any other worker." 42 The confluence of the above considerations in addiction cases has led arbitrators to examine a wide range of factors in determining whether to sustain the discharge or reinstate the grievor, perhaps on certain remedial terms. The factors include: (i) The nature of the grievor's job and the impact of his or her addictive behaviour upon the employer and co-workers; (ii) The degree to which the employer attempted to assist the grievor in overcoming his or her addiction before making the decision to terminate; (iii) The degree to which the grievor cooperated in the employer's attempts to assist him or her in overcoming the addiction; (iv) The existence of a last chance agreement that was breached by the grievor; (v) The adequacy of the basis for the employer's prognosis at the time of termination that the grievor would not be able to achieve successful future employment due to his alcoholism; (vi) The existence of objective post-discharge evidence casting into doubt the prognosis made by the employer at the time of termination; and, (vii) The presence of mitigating factors such as lengthy service with the employer, exemplary disciplinary record, genuine expressions of remorse, personal circumstances causing or contributing to the misconduct, hardship upon the grievor and his or her family caused by the termination, etc. I now turn to examination of these factors in the circumstances of the present case.(i) The nature of the grievor's job and the impact of his addictive behaviour upon the employer and co-workers:43 Consideration of this factor derives from two sources: (1) the obligations of employers and workers under occupational health and safety legislation; and, (2) the duty to accommodate disabled workers under human rights legislation.44 Under ss. 25(2)(h) & 28(2)(b) of the Ontario Occupational Health and Safety Act, the employer is obligated to "take every precaution reasonable in the circumstances for the protection of a worker," and the worker is obligated not to "work in a manner that may endanger himself, herself or any other worker." Here, the grievor was a Process Operator in the employer's plant. His job required him to work as part of a crew in a mechanized environment, with moving equipment and forklift trucks all about him. If he were to attempt to work in this environment when he was not in a sober state, he would be a danger to himself and the other workers around him. Moreover, there was no evidence that the grievor could have been transferred into a more benign environment, where his addictive behaviour would not constitute such a danger. In these circumstances, attempting to work while under the influence of alcohol would constitute a serious breach of the grievor's own obligations under the Act. Further, if the employer were to permit him to work when it had good reason to suspect that he was not in a sober state, it would risk being in serious breach of its obligation to take every reasonable precaution for the protection of its workers.45 Within the human rights context, arbitrators must also consider other impacts upon co-workers and the employer due to the grievor's addictive behaviour. See Pacific Blue Cross v. C.U.P.E., Local 1816 (B.C. Arb. Bd.), (B.C., McPhillips), The evidence suggested that before the grievor's co-workers decided that enough was enough and notified Ms. Bryant of the grievor's addictive behaviour, they often were burdened with performing the grievor's duties as well as their own while hiding him or sending him home to avoid detection by upper management. Not only did this add to the workload of the grievor's co-workers, but it had potential disciplinary consequences for those who became involved. Moreover, the grievor appeared to continue attempting to place this burden on his co-workers even after Ms. Bryant became involved. I refer in particular to the reported activities of the grievor on October 8 & 15, 2004, when the grievor allegedly was sent home by the union on October 8, and a co-worker on October 15, because he was obviously unfit to work.46 For its part, the employer was burdened with an unreliable employee who had a serious absenteeism rate, treatment and counselling costs, and lengthy paid sick leaves. While similar costs might be said to be legitimately expected in the course of accommodating any disabled employee, the cost to the employer cannot be so easily set aside when there were multiple efforts by the employer to rehabilitate the addicted employee and little or no cooperation by the latter in the rehabilitative process.(ii) The degree to which the employer attempted to assist the grievor in overcoming his addiction before making the decision to terminate:47 Most arbitrators acknowledge that "accommodating an alcoholic employee may demand allowances for a relapse and require unions, employers and arbitrators to fashion careful solutions that balance the interests of the grievor, co-workers and the employer while at the same time being realistic about the nature of the disease." Uniroyal Goodrich Canada Inc. v. U.S.W.A., Local 677 (Ont. Arb. Bd.), at 123 (Knopf), as cited in , supra, at para. 79. Nevertheless, when an alcoholic employee has failed to respond to multiple rehabilitation efforts and there is no objective evidence that further efforts at accommodation would be likely to succeed, it is generally concluded that the employee has been accommodated to the point of undue hardship and his or her termination should be upheld.48 For instance, in York Region District School Board v. C.U.P.E., Local 1196 (Ont. Arb. Bd.) (Craven), the termination of an alcoholic employee was upheld because the employer had already engaged in extensive rehabilitation efforts that included: (1) two leaves of absence for treatment at rehabilitation centres; (2) one leave of absence for a two-month term of incarceration for impaired driving; (3) establishment of a modified work program for the grievor; (4) multiple attempts at attendance management; (5) and, a last chance agreement. In the absence of evidence showing that further efforts at accommodation were "likely to be substantially more successful in motivating and assisting the grievor to curtail his use of alcohol," id., at 329, it was concluded that requiring the employer to make further efforts to accommodate the grievor would constitute the imposition of an undue hardship within the meaning of the Ontario Human Rights Code.49 In , supra, the same result was reached in the case of an employee who was addicted to crack cocaine. There, the employer's rehabilitation efforts were even more extensive. They included: (1) three residential treatment programs; (2) a day treatment program; (3) extensive counselling through its EAP program; (4) multiple drug tests; (5) periodic medical assessments; (6) appointment of a case manager to help with the grievor's rehabilitation; and, (7) a last chance agreement. Id., at para. 62 et seq. In the absence of any objective post-discharge evidence that the grievor was on her way to recovery from her addiction, it was concluded that the employer had fulfilled its duty to accommodate and the termination was upheld. Id., at para. 80.50 In the present case, the employer similarly made far-reaching efforts to accommodate and rehabilitate the grievor. The employer's efforts extended over a period of at least three years. In that time, the grievor was sent to two residential treatment programs, first at Westover and later at Bellwood, and received sick leave benefits while there. The Westover program was paid for by the employer and if the grievor had chosen to return to Westover for his second residential treatment program, it once again would have been paid for by the employer. Attending two residential treatment programs apparently provided the grievor with the maximum amount of benefit that he could derive from such programs. According to the evidence, his counsellors at Bellwood were of the opinion that his past treatment at the two programs had given him all the tools and skills that he needed to succeed in overcoming his addiction and there would be no benefit in his returning for another one. In addition, the grievor was offered and received extensive counselling through the employer's EFAP program and the aftercare minisessions at Bellwood. Ms. Bryant also held multiple meetings with the grievor, union representatives and EFAP representatives, in which she advised the grievor that he was placing his job in jeopardy and gave him chance after chance to change his addictive behaviour. On several occasions, union representatives met alone with the grievor to reinforce the same message. When no change appeared to be forthcoming, Ms. Bryant suspended the grievor and only agreed to return him to work under a last chance agreement. Finally, even in the face of a breach by the grievor of the last chance agreement, Ms. Bryant gave him two months to provide evidence showing that he had turned his life around and was a reasonable risk for returning to work at the plant.(iii) The degree to which the grievor cooperated in the employer's attempts to assist him in overcoming his addiction:51 In Renaud v. Central Okanagan School District No. 23 (S.C.C.), the Supreme Court of Canada held that "[a]n alcoholic seeking accommodation can fairly be expected to undergo treatment, and to make whatever effort he or she can to attain and maintain continuous sobriety." The grievor met the first requirement of this expectation, in that he underwent the maximum amount of treatment that would benefit him, but failed to meet the second requirement, i.e., to make whatever effort he could to attain and maintain sobriety. In fact, it appears from the evidence that the grievor made little or no effort to attain sobriety beyond paying for the Bellwood program out of his own pocket.52 The treatment programs were designed to give the grievor the tools that he needed to succeed in overcoming his addiction. It was up to the grievor to use the support systems within these tools to change his lifestyle and achieve the goal of attaining and maintaining sobriety. Instead, the grievor repeatedly resisted making this change and quickly returned to his old drinking habits after completing each program.53 The resistance to change that the grievor displayed after going through the Westover treatment program led the union and Mr. Donkervoort to seek assistance from Ms. Bryant in November 2002, but even the harsh counsellings that the grievor received from her failed to make any difference. He continued in his old pattern of alcohol abuse, and in June, 2003, had to seek assistance from his Group Leader because he had been drunk all week. This led to more harsh counselling, another referral to the EFAP program and a warning that he was running out of chances and would be immediately suspended if he came to work under the influence of alcohol again. The warning had no apparent effect upon the grievor because did not seek any assistance from EFAP and in early November, 2003, he once again reported for work under the influence of alcohol and was sent home. He was suspended indefinitely and thereafter agreed to attend a forty-five day treatment program at Bellwood.54 It seems that soon after completing the Bellwood program and returning to work under a last chance agreement, the grievor once again took up his old pattern of alcohol abuse. The last chance agreement was executed on January 15, 2004, and just six or seven weeks later, in March, 2004, the grievor was once again in Ms. Bryant's office to respond to rumours that he was coming in to work drunk and receive more harsh counselling. On cross-examination, the grievor admitted that he went back to drinking in the summer of 2004 and lied to his counsellors at Bellwood about it, claiming in each meeting with them that he was still clean and sober. While the grievor also maintained on cross-examination that he stopped drinking in September, 2004, it is worthy of note that in the following month, October, 2004, Ms. Bryant received two reports of the grievor being unfit for work due to drinking, and on October 19, witnessed the grievor's impaired condition for herself. According to Ms. Bryant, even at that point the grievor stubbornly insisted that he had not been drinking and only admitted that he repeatedly lied to the employer about his drinking and had not been making use of the support systems that were in place when he was confronted with an offer from the union to take him for a blood alcohol test to prove his alleged sobriety.(iv) The existence of a last chance agreement that was breached by the grievor:55 It has long been recognized in arbitral jurisprudence that the breach of a last chance agreement "provides strong support for the termination of the employment relationship unless there are strong and compelling reasons to alter that result ... [because] last chance agreements ... provide strong indicators of what will constitute just cause as well as meet the obligation to accommodate the disabled employee." , supra, at paras. 70- 71. See also, Re General Chemical Canada Ltd. and CAW-Canada, Local 89 (1997), Unpublished Award, at 13 (H. D. Brown); and, MacMillan Bloedel Ltd. v. I.W.A.- Canada, Local 1-217 (B.C. Arb. Bd.), at 49 -49 (Blasina). Here, I have already found that the grievor breached the last chance agreement that was executed between the parties on January 15, 2004.(v) The adequacy of the basis for the employer's prognosis at the time of termination that the grievor would not be able to achieve successful future employment due to his alcoholism:56 In the present case, the employer did not terminate the grievor until two months after his breach of the last chance agreement. It stayed its hand for two months because some of the things that the grievor said in what might otherwise have been his termination meeting on November 4, 2004, seemed to give a glimmer of hope that the grievor was prepared to make the necessary changes in his lifestyle. The grievor said at the meeting that he was prepared to do whatever it took to prove that he was fit to return to work, including going on antibuse and taking periodic blood tests or breathalyser tests. The two-month reprieve was intended to give the grievor an opportunity to take the necessary steps to show the employer that he was on the right track.57 Instead of taking steps to provide objective evidence of his attainment and maintenance of sobriety, such as going on antibuse and taking random blood or breathalyser tests under the supervision of independent third parties, the grievor only opted to do one thing beyond what he already was supposed to do under his last chance agreement, such as attending AA meetings and the Bellwood aftercare mini-sessions: He purchased a breathalyser and took it to the plant on ten days between December 22, 2004 and January 6, 2005, to have independent witnesses confirm that when he blew into it, the reading was 0.0.58 In my opinion, the employer rightly rejected this step as insufficient proof that the grievor had made the necessary long-term and sustainable changes in his lifestyle to minimize the risk involved in returning him to work. There was nothing objective about this evidence. It was unreliable. The grievor maintained the breathalyser within his own possession control and could pick and choose the times when he went in to the plant to have a reading witnessed. The grievor's breathalyser tests were as self-serving and susceptible to manipulation as the records of counselling sessions that the grievor submitted before and after termination, which were entirely dependent upon what the grievor chose to tell the counsellor about remaining clean and sober. See Pacific Blue Cross, supra, at paras. 76-78, where a similar approach was taken to self-serving evidence.59 There was no doubt that the grievor was aware that he could have taken other, more objective, steps to show that he truly had attained and maintained sobriety. In the course of the meeting of November 4, 2004, he even referred to going on antibuse and taking blood tests. Urine tests, which seem to be capable of showing alcohol use over a period of time, could also have been arranged through his family physician. Natrel Inc. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 (Ont. Arb. Bd.), at para. 64 (Albertyn). None of these steps was taken.60 When an alcoholic employee has failed to respond to multiple rehabilitation efforts and there is no objective evidence that further efforts at accommodation would be likely to succeed, it is generally concluded that the employee has been accommodated to the point of undue hardship and he or she should be terminated. and , supra. That would appear to be the situation that is before me. It has already been found that by the time of termination: (1) the employer had made repeated and far-reaching efforts to accommodate and rehabilitate the grievor; (2) the grievor repeatedly failed to respond to these efforts; and, (3) the grievor breached his last chance agreement by coming to work in an impaired state. In the light of the grievor's failure to provide the employer with strong and compelling evidence during his two-month reprieve that he truly had attained and was maintaining sobriety, it must be concluded that at the time of termination the employer had a more than adequate basis for concluding that the grievor had been accommodated to the point of undue hardship and should be ter Source: Lawson Creamer lawyers inated.(vi) The existence of objective post-discharge evidence casting into doubt the prognosis made by the employer:61 Most arbitrators will allow objective post-discharge evidence to be entered into evidence in addiction cases if it is submitted for the purpose of casting into doubt the prognosis made by the employer at the time of termination. See Pacific Blue Cross, supra; , supra; Union Gas, supra; and, Great Atlantic & Pacific Co. of Canada Ltd. v. Retail Wholesale Canada, U.S.W.A., Local 414 (Ont. Arb. Bd.) (Newman). In the present case, however, no such post-discharge evidence was sought to be entered even though the hearing took place on April 19 & 20, 2006, more than one year after the grievor's termination.(vii) The presence of mitigating factors:62 The only mitigating factor that appeared to be present in the case at hand was the grievor's lengthy service with the employer of over twenty-two years. In the light of the employer's already extensive efforts to accommodate and rehabilitate him, however, I find that this factor would be an inadequate ground for modifying the termination imposed by the employer.V. Conclusion:63 The termination of the grievor is upheld and the grievance is dismissed.
- Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. Source: Lawson Creamer lawyers
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