Terminating an employee with a disability can be complicated. After all, employers have a duty to accommodate the worker’s disability to the point of undue hardship. And “undue hardship” isn’t easy to define. An arbitrator ruled the employer had just cause to punish the worker, but given the circumstances of the case it was more appropriate to reinstate him and then have him retire immediately. It’s one of those rare cases that can be viewed as a bit of a win for both sides — the employer no longer has to deal with a problematic worker, and the worker is able to retire at age 55 with a pension.
An Ontario company had just cause for firing an alcoholic employee due to chronic absenteeism but outright termination is too harsh of a punishment, an Ontario arbitrator has ruled.
Lyle Lewis, 54, was employed as an electrician for nearly 30 years at Eddy Specialty Papers, a paper products manufacturer in Espanola, Ont. He was hired on Aug. 23, 1976, and planned to take early retirement when he turned 55 on June 7, 2007. However, much of his career at the paper company was marked by attendance problems caused by his dependence on alcohol. The company recorded 1,832 days of absence for Lewis since 1981, including several extended absences.
Eddy Specialty Papers was aware that his alcoholism was the cause of his absenteeism and treated it as a disability. It allowed short-term disability benefits on 15 occasions dating back to 1996 to cover his extended absences and paid for Lewis to undergo rehabilitation 10 times, working with him in an attempt to control his alcohol dependence. After each rehabilitation, however, Lewis relapsed and his absences became a problem again.
Each time the absenteeism became an issue, the company issued him a counselling letter — it gave him nine letters in the past 10 years. The most recent letter, issued to Lewis on Oct. 25, 2005, indicated the company was at the end of its patience. The letter stated that his absences had undermined his employment contract with the company and any further absences would result in his dismissal. This letter was accompanied the next day by a meeting between Lewis, his wife, the company’s director of HR and the union local president. At this meeting, Lewis once again said he needed help with his addiction.
The director of HR agreed to accommodate his request and the company once again allowed him time off to enter another treatment program. It was made clear to Lewis at the meeting, however, that the warning in the company’s Oct. 25 letter would be in effect as soon as he returned to work and no more absences would be tolerated.
After completing his treatment program, Lewis returned to work full-time on Jan. 31, 2006. He showed up every day without an absence until March 20, 2006. Lewis was scheduled to return to work that day after a short leave for a funeral, but he called in to say he had the flu. The company was suspicious since that was usually his excuse for his previous alcohol-related absences. Management requested Lewis meet with the plant manager in person to verify he was actually sick. Lewis refused, claiming he was too ill to make the trip, which involved an hour-long drive each way. He was told he would be fired if he did not prove in person that his absence was due to the flu and not alcohol-related.
The next day, March 21, 2006, Lewis showed up for work and he was called into a meeting with management, where he was terminated due to his inability to address his chronic attendance problem. Eddy Specialty Papers had reached the point where it felt it had accommodated Lewis and his alcohol dependence as much as it could, but Lewis had failed in his duty to co-operate. The company argued to the arbitrator that it could no longer deal with his absences and, combined with its concern for his position in the safety-sensitive job of electrician, it had just cause to terminate him.
Lewis agreed Eddy Specialty Papers had treated him well during his career and did its best to accommodate his problem, but felt the termination was too hasty. He claimed that going from written warnings to termination, without any other discipline, was too much of a leap and the company should have used more progressive discipline to make it clear further absences would not be tolerated.
Other than the counselling letters, Lewis had faced no disciplinary penalties such as suspensions or other sanctions for his absenteeism. He also argued the company should have ensured his absence on March 20, 2006, was in fact related to his alcohol abuse and not genuine illness.
The arbitrator felt the steps taken by Eddy Specialty Papers leading up to Lewis’ termination were fair and appropriate and it had just cause to fire him. The Oct. 25 letter and Oct. 26 meeting clearly indicated to Lewis he would be terminated if he had any further unjustified absences.
The arbitrator also agreed that Eddy Specialty Papers had been fair and accommodating to Lewis over the years but had run out of options.
“There is nothing more the employer could have done to help (Lewis) to maintain regular attendance at work,” the arbitrator said. “The employer had cause to terminate (his) employment, for non-disciplinary reasons because, by then, (Lewis) had shown he did not have the capacity to attend work regularly.”
However, the arbitrator also felt the circumstances of Lewis’ service to the company and his personal situation should warrant some consideration. Lewis had been employed with Eddy Specialty Papers for nearly 30 years and was very close to retirement. His absences were due to a disability, his prospects of finding other work at his age were poor and the financial loss to his family was severe. Taking these things into account, the arbitrator felt outright termination was too harsh of a punishment.
The arbitrator said he should be suspended without pay until June 8, 2007, at which point he would be reinstated and then immediately take the early retirement he had originally planned. As a result, Lewis’ employment with Eddy Specialty Papers would be at an end, as the company wished, but he would receive the full retirement benefits for which he had planned before his termination.
For more information see:
• Eddy Specialty Papers v. I.B.E.W., Local 956, 2007 CarswellOnt 363 (Ont. Arb. Bd.).
Text of the final warning letter from employer to worker
The text of the letter sent by Eddy Specialty Papers to Lyle Lewis dated Oct. 25, 2005:
Your absence on Oct. 25 has caused us to, once again, revisit your absence record. It is abysmal to say the least. Since 1996, you have accumulated 460 days of absence — 1.25 years of absence in under 10 years of employment! A majority of the absences are for extended periods of time.
Your file also shows that the company has supported you during these absences, by extending to you STD benefits 15 times since 1996, again, often for extended periods of time.
On Oct. 19, 2005, you were given Written Counsel to encourage you to bring your high absenteeism — 24 per cent — under control. Your response to that counsel session was to further absent yourself from your duties.
We will continue to offer you whatever assistance you may need to help you with whatever is contributing to your absence problem. But the fact remains that the employment contract that the Company has with you requires that you attend work on a regular basis. And since you have been unable to consistently achieve that, the employment contract has been undermined.
We feel that we have been more than patient. As such any further incidents of absenteeism on your part will result in your dismissal.
Lyle Lewis, 54, was employed as an electrician for nearly 30 years at Eddy Specialty Papers, a paper products manufacturer in Espanola, Ont. He was hired on Aug. 23, 1976, and planned to take early retirement when he turned 55 on June 7, 2007. However, much of his career at the paper company was marked by attendance problems caused by his dependence on alcohol. The company recorded 1,832 days of absence for Lewis since 1981, including several extended absences.
Eddy Specialty Papers was aware that his alcoholism was the cause of his absenteeism and treated it as a disability. It allowed short-term disability benefits on 15 occasions dating back to 1996 to cover his extended absences and paid for Lewis to undergo rehabilitation 10 times, working with him in an attempt to control his alcohol dependence. After each rehabilitation, however, Lewis relapsed and his absences became a problem again.
Each time the absenteeism became an issue, the company issued him a counselling letter — it gave him nine letters in the past 10 years. The most recent letter, issued to Lewis on Oct. 25, 2005, indicated the company was at the end of its patience. The letter stated that his absences had undermined his employment contract with the company and any further absences would result in his dismissal. This letter was accompanied the next day by a meeting between Lewis, his wife, the company’s director of HR and the union local president. At this meeting, Lewis once again said he needed help with his addiction.
The director of HR agreed to accommodate his request and the company once again allowed him time off to enter another treatment program. It was made clear to Lewis at the meeting, however, that the warning in the company’s Oct. 25 letter would be in effect as soon as he returned to work and no more absences would be tolerated.
After completing his treatment program, Lewis returned to work full-time on Jan. 31, 2006. He showed up every day without an absence until March 20, 2006. Lewis was scheduled to return to work that day after a short leave for a funeral, but he called in to say he had the flu. The company was suspicious since that was usually his excuse for his previous alcohol-related absences. Management requested Lewis meet with the plant manager in person to verify he was actually sick. Lewis refused, claiming he was too ill to make the trip, which involved an hour-long drive each way. He was told he would be fired if he did not prove in person that his absence was due to the flu and not alcohol-related.
The next day, March 21, 2006, Lewis showed up for work and he was called into a meeting with management, where he was terminated due to his inability to address his chronic attendance problem. Eddy Specialty Papers had reached the point where it felt it had accommodated Lewis and his alcohol dependence as much as it could, but Lewis had failed in his duty to co-operate. The company argued to the arbitrator that it could no longer deal with his absences and, combined with its concern for his position in the safety-sensitive job of electrician, it had just cause to terminate him.
Lewis agreed Eddy Specialty Papers had treated him well during his career and did its best to accommodate his problem, but felt the termination was too hasty. He claimed that going from written warnings to termination, without any other discipline, was too much of a leap and the company should have used more progressive discipline to make it clear further absences would not be tolerated.
Other than the counselling letters, Lewis had faced no disciplinary penalties such as suspensions or other sanctions for his absenteeism. He also argued the company should have ensured his absence on March 20, 2006, was in fact related to his alcohol abuse and not genuine illness.
The arbitrator felt the steps taken by Eddy Specialty Papers leading up to Lewis’ termination were fair and appropriate and it had just cause to fire him. The Oct. 25 letter and Oct. 26 meeting clearly indicated to Lewis he would be terminated if he had any further unjustified absences.
The arbitrator also agreed that Eddy Specialty Papers had been fair and accommodating to Lewis over the years but had run out of options.
“There is nothing more the employer could have done to help (Lewis) to maintain regular attendance at work,” the arbitrator said. “The employer had cause to terminate (his) employment, for non-disciplinary reasons because, by then, (Lewis) had shown he did not have the capacity to attend work regularly.”
However, the arbitrator also felt the circumstances of Lewis’ service to the company and his personal situation should warrant some consideration. Lewis had been employed with Eddy Specialty Papers for nearly 30 years and was very close to retirement. His absences were due to a disability, his prospects of finding other work at his age were poor and the financial loss to his family was severe. Taking these things into account, the arbitrator felt outright termination was too harsh of a punishment.
The arbitrator said he should be suspended without pay until June 8, 2007, at which point he would be reinstated and then immediately take the early retirement he had originally planned. As a result, Lewis’ employment with Eddy Specialty Papers would be at an end, as the company wished, but he would receive the full retirement benefits for which he had planned before his termination.
For more information see:
• Eddy Specialty Papers v. I.B.E.W., Local 956, 2007 CarswellOnt 363 (Ont. Arb. Bd.).
Text of the final warning letter from employer to worker
The text of the letter sent by Eddy Specialty Papers to Lyle Lewis dated Oct. 25, 2005:
Your absence on Oct. 25 has caused us to, once again, revisit your absence record. It is abysmal to say the least. Since 1996, you have accumulated 460 days of absence — 1.25 years of absence in under 10 years of employment! A majority of the absences are for extended periods of time.
Your file also shows that the company has supported you during these absences, by extending to you STD benefits 15 times since 1996, again, often for extended periods of time.
On Oct. 19, 2005, you were given Written Counsel to encourage you to bring your high absenteeism — 24 per cent — under control. Your response to that counsel session was to further absent yourself from your duties.
We will continue to offer you whatever assistance you may need to help you with whatever is contributing to your absence problem. But the fact remains that the employment contract that the Company has with you requires that you attend work on a regular basis. And since you have been unable to consistently achieve that, the employment contract has been undermined.
We feel that we have been more than patient. As such any further incidents of absenteeism on your part will result in your dismissal.
