Michelle Stephenson, Summer Law Student
A recent arbitrator’s decision concerned the enforceability of a pre-treatment agreement allowing an employer to terminate a unionized employee if he failed to abstain from the consumption of alcohol.
In Shaw Cablesystems GP v. Telecommunications Workers’ Union an employee was arrested for driving under the influence, which resulted in a suspension of his license. Though the incident occurred while he was off-duty, he nevertheless informed his employer of it and required accommodation, as he needed transportation for his position.
After he admitted to having an alcohol problem which was affecting his personal life, he and his employer came to agreement on a number of steps that should be taken to accommodate his addiction, including the employee meeting with a counselor and entering into an addiction treatment program.
The employee also signed a post-treatment agreement with the employer, which stated that he would continue to be employed provided he complied with several terms, including abstaining from drinking alcohol.
Some months after his returning to work, he admitted to a suspicious co-worker that he had relapsed several times earlier in the year. When he then returned to work after his Christmas break he was given a termination letter based on his violation of the agreement (by drinking during his relapses) and the employer’s belief that he was no longer being honest with them about his not drinking recently.
The union grieved his dismissal.
At issue during arbitration was whether the pre-treatment agreement amounted to a last chance agreement. Last chance agreements usually arise where an employee’s misconduct has created cause for dismissal, but the employer gives the employee a conditional reinstatement on the basis that future misconduct will justify termination.
This is a significant distinction as last chance agreements are presumptively given effect by arbitrators, while the enforceability of other agreements will be considered in terms of whether the parties have met their legal duties, in this case the employer’s duty to accommodate a disability.
It was found that the post-treatment agreement was part of the employer’s duty to accommodate and not a last chance agreement. Therefore the arbitrator was to determine whether to enforce the agreement based on whether the employer had met their duty to accommodate the employee’s illness up to the point of undue hardship.
Ultimately it was determined that the employer had not met its duty to accommodate. Alcoholism was described as an illness with which relapses are to be expected, and it was held that accommodating an alcoholic may require some allowance for these.
The employee was reinstated; however this was subject to terms over the next 24 months, including abstaining from alcohol. If yet another relapse were to occur during this time period, the employer would then be entitled to dismiss him, as forcing them to continue to employ him would constitute undue hardship. These limited terms were more reasonable than the blanket provision of the post-treatment plan, which allowed the employer to dismiss him for consumption of alcohol at any point in the future.