Employee had been warned before but employer hadn't followed through, allowing employee to believe that would continue
There is an old, and somewhat cynical saying, that no good deed goes unpunished. While I personally disagree with that saying, one employer must believe it after a decision it received.
In the case, an adjudicator reinstated an alcoholic employee who was dismissed after he was found to be under the influence of alcohol at work. The employee had previously been disciplined for alcohol consumption, lateness/absenteeism and abandoning his shift, and on one occasion had entered into a “last chance agreement”.
The employee worked for a New Brunswick government agency filling orders for supplies destined for hospitals. His work environment of “stores” was said to be safety-sensitive. In April 2014, two coworkers complained to a supervisor that the employee had been “drinking again”. The supervisor asked the employee, “are you drunk?” but received no response. The employee smelled of liquor. He later saw the employee “drifting down the hallway”, staggering to one side. After the employer concluded that the employee failed to provide an explanation for being under the influence of alcohol and had not taken responsibility for his conduct, the employer later terminated his employment.
The adjudicator held that the employee, as an alcoholic, suffered from a “disability” for the purposes of human rights legislation. The adjudicator recognized that many of the employee’s coworkers had suffered anxiety and stress as the “struggled emotionally to deal with the situation they faced” due to his alcohol abuse. The employer had been “more than patient for many years” and was “entitled to a productive and effective contribution from each of its employees each and every day” and did “not always get that” from the employee.
However, the employer was had given the employee some “leeway” in its responses to his absenteeism and drinking. Rather than being “steadfast” in its warning of further discipline and following through on warnings, the employer showed “compassion”. The adjudicator expressed concern that that approach created the general impression in the mind of the employee that the threat of dismissal was not serious — that is, that the employer’s compassionate approach would continue. Effectively, the employer’s approach had led to the “shepherd boy crying ‘wolf'” phenomenon: the employee may not have believed that the employer would follow through on its warnings.
Further, there were no aggravating circumstances; in particular, there was no aggressive behaviour from the employee in the incident that led to his dismissal. As such, the adjudicator held that the dismissal was excessive and that the employer had not yet approached the point of “undue hardship” in accommodating the employee’s alcoholism.
The adjudicator set aside the dismissal, and instead imposed a 30-day suspension followed by a leave of absence without pay for 16 months during which the employee could complete a detox/rehabilitation program. Also, his return to work would be subject to a last chance agreement to be negotiated by the parties. If the employee did not complete the detox/rehabilitation program in 16 months, his employment would end.
For more information see:
• FacilicorpNB and CUPE, Local 1252 (R. (J.)), Re, 2015 CarswellNB 381 (N.B. P.S.L.R.B.). Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
