Dismissal for infraction unrelated to alcohol problem considered unreasonable
A last chance agreement that dealt with an Edmonton bus driver’s alcoholism erred in making him adhere to higher performance standards than co-workers, an Alberta arbitration board ruled.
The employee’s six-year history as a bus driver with Edmonton Transit had been tarnished with frequent absences. Finally in 2002, the employee admitted to an alcohol problem, which accounted for most of his failures to report to work. His record –– at least in the early years –– was also marred by a number of traffic violations for which he had received suspensions as part of his employer’s progressive discipline policy.
In August 2002, he signed a last chance agreement, which addressed his alcoholism and also required exemplary job performance.
Just a few weeks later, after completing an agreed-upon rehab program, he received a photo radar ticket for driving his bus through a red light. Almost three years had passed since his last driving infraction, but his last chance agreement had stipulated any incident of unacceptable performance could lead to his dismissal.
Concluding the last chance agreement had been breached, his employer, noting his lack of seniority, his substantial record of discipline and the lack of extenuating circumstances, dismissed him.
One violation insufficient for termination: Union
When the Amalgamated Transit Union launched a grievance, Edmonton Transit said the employee had not been treated any differently than any other employee with a recent five-day suspension (in his case, for failure to report to work) and a final chance agreement hanging over his head would be.
The union, on the other hand, argued that enforcing the terms of the agreement in this situation was unreasonable and inappropriate. It drew a distinction between the discipline for absenteeism and that for operating the bus improperly, and noted that the agreement had been drawn up primarily to address the absenteeism problem. In addition, it observed the agreement called for two standards for behaviour: meeting “all performance expectations” and not incurring “any incident” of unacceptable performance. In the union’s view, one traffic violation after nearly three years should not have resulted in the employee’s termination.
Not only that, but requiring him –– but not his fellow operators –– to have a perfect driving record discriminated against him because, according to the union, the only reason this level of performance was required of him and not his peers was because of his alcoholism.
The union observed that alcoholism is recognized by the Alberta Human Rights Act as a physical disability and that neither party to a collective agreement can contract out of human rights law. It asked the arbitrator to order the employee reinstated with compensation for the pay he had lost, a written warning substituted for his termination and the agreement re-written to reflect only the regimen he was expected to follow to overcome his alcoholism.
Arbitration panel weighs in
The three members of the arbitration board did not see the ambiguity in the agreement that the union found. They saw no problem with having general performance expectations, as well as a warning against any specific incident of unacceptable performance. “While these two performance requirements may overlap at times, it is also possible for an employee to not have any specific incident of unacceptable performance but still fail to meet overall performance standards,” said chair Allen Ponak.
However, speaking on behalf of a majority on the board (the employer nominee dissented from the final ruling), Ponak found that the agreement itself was discriminatory because, as the union contended, it imposed a standard of performance on the employee that “arose because of his disability.”
He observed, first, alcoholism is a physical disability protected under the Alberta Human Rights Act; second, unions and management cannot contract out of human rights legislation unless that leads to a higher standard of protection than in the legislation; and, third, the agreement did discriminate against the employee.
Drug testing reasonable, but not dismissal
The board made a distinction between the part of the last chance agreement directed at the employee’s illness (alcoholism), and the parts of the agreement referring to his job performance.
As far as the rehabilitation from alcoholism was concerned, Ponak found the agreement acceptable. The employer, he said, was entitled to require the employee to attend rehab, not to trade shifts if that would hinder his recovery, and to request monitoring of the employee and even drug testing.
But, as for the consequences for not performing his job adequately, the board noted the last chance agreement “established a standard of perfection” for the employee, whereby any traffic violation at all would lead to dismissal. The board said this was unlike the consequences visited upon other employees with traffic tickets, as his peers received short suspensions as the most serious punishment for traffic violations.
The board ruled that the last chance agreement went beyond the employee’s illness. In fact, were it not for the effort to reign in absences related to the employee’s alcoholism, he would never have been held to such a high standard for his driving performance.
As a result, the board ordered the bus driver reinstated, and set his discipline for the driving offense at a one-day suspension.
Ponak sent the matter of compensation for lost pay and benefits back to the parties that had signed the agreement: the employer, the union and the employee, but he reserved jurisdiction to look at the question again if they could not agree. However, he noted he was not convinced that the question of compensation need come up in cases where a last chance agreement was ruled to be discriminatory. In addition, he referred the re-wording of the agreement back to the parties themselves.
For more information: City of Edmonton and the Amalgamated Transit Union, Local 569, Alberta Labour Code Arbitration, Allen Ponak — Chair and Anna Moscardelli and Mia Norrie –– Members, Oct. 22, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
The employee’s six-year history as a bus driver with Edmonton Transit had been tarnished with frequent absences. Finally in 2002, the employee admitted to an alcohol problem, which accounted for most of his failures to report to work. His record –– at least in the early years –– was also marred by a number of traffic violations for which he had received suspensions as part of his employer’s progressive discipline policy.
In August 2002, he signed a last chance agreement, which addressed his alcoholism and also required exemplary job performance.
Just a few weeks later, after completing an agreed-upon rehab program, he received a photo radar ticket for driving his bus through a red light. Almost three years had passed since his last driving infraction, but his last chance agreement had stipulated any incident of unacceptable performance could lead to his dismissal.
Concluding the last chance agreement had been breached, his employer, noting his lack of seniority, his substantial record of discipline and the lack of extenuating circumstances, dismissed him.
One violation insufficient for termination: Union
When the Amalgamated Transit Union launched a grievance, Edmonton Transit said the employee had not been treated any differently than any other employee with a recent five-day suspension (in his case, for failure to report to work) and a final chance agreement hanging over his head would be.
The union, on the other hand, argued that enforcing the terms of the agreement in this situation was unreasonable and inappropriate. It drew a distinction between the discipline for absenteeism and that for operating the bus improperly, and noted that the agreement had been drawn up primarily to address the absenteeism problem. In addition, it observed the agreement called for two standards for behaviour: meeting “all performance expectations” and not incurring “any incident” of unacceptable performance. In the union’s view, one traffic violation after nearly three years should not have resulted in the employee’s termination.
Not only that, but requiring him –– but not his fellow operators –– to have a perfect driving record discriminated against him because, according to the union, the only reason this level of performance was required of him and not his peers was because of his alcoholism.
The union observed that alcoholism is recognized by the Alberta Human Rights Act as a physical disability and that neither party to a collective agreement can contract out of human rights law. It asked the arbitrator to order the employee reinstated with compensation for the pay he had lost, a written warning substituted for his termination and the agreement re-written to reflect only the regimen he was expected to follow to overcome his alcoholism.
Arbitration panel weighs in
The three members of the arbitration board did not see the ambiguity in the agreement that the union found. They saw no problem with having general performance expectations, as well as a warning against any specific incident of unacceptable performance. “While these two performance requirements may overlap at times, it is also possible for an employee to not have any specific incident of unacceptable performance but still fail to meet overall performance standards,” said chair Allen Ponak.
However, speaking on behalf of a majority on the board (the employer nominee dissented from the final ruling), Ponak found that the agreement itself was discriminatory because, as the union contended, it imposed a standard of performance on the employee that “arose because of his disability.”
He observed, first, alcoholism is a physical disability protected under the Alberta Human Rights Act; second, unions and management cannot contract out of human rights legislation unless that leads to a higher standard of protection than in the legislation; and, third, the agreement did discriminate against the employee.
Drug testing reasonable, but not dismissal
The board made a distinction between the part of the last chance agreement directed at the employee’s illness (alcoholism), and the parts of the agreement referring to his job performance.
As far as the rehabilitation from alcoholism was concerned, Ponak found the agreement acceptable. The employer, he said, was entitled to require the employee to attend rehab, not to trade shifts if that would hinder his recovery, and to request monitoring of the employee and even drug testing.
But, as for the consequences for not performing his job adequately, the board noted the last chance agreement “established a standard of perfection” for the employee, whereby any traffic violation at all would lead to dismissal. The board said this was unlike the consequences visited upon other employees with traffic tickets, as his peers received short suspensions as the most serious punishment for traffic violations.
The board ruled that the last chance agreement went beyond the employee’s illness. In fact, were it not for the effort to reign in absences related to the employee’s alcoholism, he would never have been held to such a high standard for his driving performance.
As a result, the board ordered the bus driver reinstated, and set his discipline for the driving offense at a one-day suspension.
Ponak sent the matter of compensation for lost pay and benefits back to the parties that had signed the agreement: the employer, the union and the employee, but he reserved jurisdiction to look at the question again if they could not agree. However, he noted he was not convinced that the question of compensation need come up in cases where a last chance agreement was ruled to be discriminatory. In addition, he referred the re-wording of the agreement back to the parties themselves.
For more information: City of Edmonton and the Amalgamated Transit Union, Local 569, Alberta Labour Code Arbitration, Allen Ponak — Chair and Anna Moscardelli and Mia Norrie –– Members, Oct. 22, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
