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Expanded Case Details

Hamilton (City) (2011), 214 L.A.C. (4th) 254 (Surdykowski)

In Hamilton (City) (2011), 214 L.A.C. (4th) 254 (Surdykowski), an employee, with 22 years of seniority, was discharged after having caused an accident while driving his employer’s vehicle under the influence of alcohol. Breathalyzer tests established that the employee’s blood alcohol level was more than three times the legal limit.

The employee had a long history of substantial alcohol abuse that was unknown to the employer. Nevertheless, the arbitrator commented that the circumstances of the incident and the employee’s statement in regard to the incident should have led the employer to inquire about the employee’s history with alcohol, and had it done so, the employee would have been revealed as an alcoholic, with that in turn then triggering the accommodation obligations under the Human Rights Code.

Arbitrator Surdykowski stated that while alcoholism is a disability, and while neither alcoholism nor any other disability excuses employment misconduct, “it can mitigate it, particularly where the employee acknowledges and takes responsibility for his addiction, and demonstrates a willingness and ability [to] resist the compulsion to consume alcohol.” Here, the employee had recognized his addiction and had taken significant steps to address his addiction.

The arbitrator concluded that there was a nexus between the employee’s illness and his termination:

… The primary reason for termination was the grievor’s impulsive decision to drink uncontrollably until he was seriously impaired, after which he drove the [employer’s] vehicle he was entrusted with into a serious accident. This is classic alcoholic behaviour which demonstrates a nexus between that disabling illness and the grievor’s termination, and the Code.

 

Arbitrator Surdykowski reviewed a number of earlier decisions, one of which included his decision in St. Laurent Paperboard Inc. (2000), 2000 CarswellOnt 8386, [2000] O.L.A.A. No. 642. In that case, “the employer made extensive efforts and provided significant accommodation to an alcoholic employee who was unwilling to acknowledge or deal with his drinking problem.” Arbitrator Surdykowski stated:

It is well established that alcoholism is a disease, and that prima facie it provides no more justification for discharge than diabetes or a bad back. However, neither does it give an employee immunity from discharge or otherwise put him (or her) in a better position than an employee who is not an alcoholic. Alcoholism may provide some explanation, and perhaps a mitigating circumstance, but it is not an absolute defense against discharge. Employers have social and legal responsibilities to employees who are injured or ill, but employers are not social welfare agencies. There are limits to an employer’s obligation to support or await an employee’s rehabilitation. And an alcoholic employee also bears some responsibility for his/her situation and rehabilitation. Alcoholism is unlike some other afflictions in that even an alcoholic exercises a choice regarding whether or not s/he drinks. It may be that the nature of the disease is such that compulsion to drink is a difficult force to resist, particularly after the first drink, but there is a choice, particularly the choice to take that first drink. A person who knows s/he is an alcoholic, who knows the effect that drinking has on him/her, who knows that his/her employment will be in jeopardy if s/he takes a drink, and who chooses to drink anyway must take responsibility for doing so.

In considering the employee’s assertion in that case that he had stopped drinking, arbitrator Surdykowski stated:

There is no evidence from anyone with direct knowledge, or in a position to have direct knowledge (like his wife or other family members, for example), to support his assertion that he has stopped drinking. Nor is there any evidence that the grievor has taken any real steps to rehabilitate himself since he was discharged. There is none of the usual rehabilitation evidence before me in this case. There is no evidence from the … Addiction Treatment Centre regarding either his stay or any follow-up programme or treatment. There is no evidence from the grievor’s AA sponsor or from anyone else at AA. There is no evidence from the doctor who prescribed antabuse for him, or from any other medical practitioner. There is no evidence from the grievor’s wife, from his family, or from anyone else who has had significant direct contact with him since his discharge. The most that can be said is that he attended some AA meetings. That is clearly not good enough for him.

Here, arbitrator Surdykowski commented that the decisions that he reviewed in this case served to demonstrate the following common features where reinstatement was denied in cases involving discharge for alcohol related misconduct:

  • a failure to claim or refusal to admit to an alcohol or drug-related disability, or a finding that there is no nexus between such a disability and the misconduct in issue;
  • a failure of the grievor to cooperate with or be forthright in the employer’s investigation of the misconduct;
  • a failure to take responsibility or offer a sincere apology for what occurred;
  • a failure [of] the grievor to demonstrate a real desire or ability [to] face up to and take meaningful steps to deal with his alcohol or drug issues;
  • a failure by the grievor to present as a truthful or credible witness at arbitration.

 In considering the approach taken in cases where reinstatement was ordered, arbitrator Surdykowski stated:

Although not all of them present in all cases, the common characteristics of cases in which an employee guilty of serious alcohol or drug-related misconduct [has] been reinstated to employment, albeit with what is in the result is effectively a significant substituted suspension and under strict terms or conditions, include:

  • a claim of addiction disability, or disclosure of facts suggesting an addiction disability at any time prior to or even at the point of discharge, and a demonstrable causal connection between the misconduct and the addiction disability;
  • a failure by the employer to seriously consider whether the grievor suffered from an addiction disability and its obligations under the applicable human rights legislation in that respect;
  • some level of cooperation with and candour during the employer’s investigation, however grudging, and no serious grievor credibility issues at the hearing;
  • a reasonable basis for concluding that the grievor is and can be proved to be abstaining from alcohol or drugs, and for concluding that the grievor can and will continue to abstain;
  • a sincere apology;
  • the grievor’s demonstrated willingness to take responsibility for, and take real steps to properly deal with his addiction;
  • a reasonable basis for concluding that the grievor can, with appropriate terms or conditions, be safely returned to the workplace.

 

On the matter of abstinence and the issue of testing, arbitrator Surdykowski stated here that:

No amount of alcohol consumption is “safe” for an alcoholic. Treatment, recovery and a return to productive employment requires complete abstinence … To the extent that an objective testing or confirmation process impinges on an alcoholic grievor’s privacy, experience suggests that it is both necessary, appropriate and to the benefit of all concerned. There are few (if any) workplaces in which a prohibition against the consumption of drugs or alcohol could constitute a violation of anyone’s rights. Concomitantly, the common sense requirement that employees be unimpaired by alcohol or other drugs while on the job, whether or not on the employer’s premises, is both reasonable and a “bona fide occupational requirement” within the meaning of the Code. Finally, because the danger of relapse is both constant and unrelenting, the threat of discovery and the consequences of failure must be real and equally unrelenting, as an ever present sort of employment Sword of Damocles – for a lengthy [but] reasonable period, or until such time as appropriate objective evidence demonstrates that there is no reasonable risk of relapse.



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