Employers have duty to investigate, be mindful of accommodation
Question: We are concerned one of our employees, a forklift driver, has been intoxicated on the job. What are our legal options and obligations?
Answer: This question requires employers to balance a number of different and competing issues.
First (and perhaps this is obvious), the use of alcohol at work can have a serious adverse effect on workplace safety. There are a number of studies indicating the use of alcohol while at work impairs judgment and slows reaction time.
All occupational health and safety legislation in Canada requires that employers take reasonable steps to ensure safety in the workplace.
Thus, once an employer knows (or has reasonable cause to suspect) that an employee is operating a forklift while intoxicated, there is an obligation to take reasonable steps (investigate and act accordingly) to ensure safety is not compromised.
As in all cases where there is a policy prohibiting this type of behaviour, follow the policy.
If there is no policy addressing this type of behaviour, it’s time to draft one. If a policy exists but it hasn’t been followed closely, it’s time to communicate you will.
Second, some health and safety legislation in Canada specifically addresses the issue of alcohol impairment.
For example, British Columbia’s Workers Compensation Act provides: a worker must ensure the worker’s ability to work without risk to his health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes.
In these jurisdictions, there may be a better mandate to discipline employees who violate such safety obligations.
Third, the use of alcohol at work inevitably raises the issue the employee has a disability (alcohol addiction) requiring accommodation to the point of undue hardship.
Fourth, employers would also be wise to consider whether this issue is an isolated incident or evidence of a larger problem requiring a more comprehensive response, such as the development of policy.
Remember that workplace testing for drugs and alcohol raises another set of issues completely and should not be undertaken without a complete understanding of the relevant legal obligations.
Most arbitrators and courts would consider that operating any company vehicle while intoxicated is deserving of discipline. Both courts and arbitrators consider similar factors, such as:
•if there is any relevant statutory obligation or policy and whether such a policy has been complied with
•whether the behaviour is connected to a disability
•whether accommodation is necessary and whether it is available
•the severity of the misconduct
•whether there are extenuating or aggravating circumstances
•what other options were available under a progressive discipline policy
•whether the employee is remorseful.
In Re Premier Horticulture Ltd. and U.F.C.W., Local 832, an arbitrator conditionally reinstated a forklift operator who was discharged when he reported to work drunk. The worker in that case expressed genuine regret, had maintained sobriety and showed rehabilitative potential.
In another case involving a non-union worker, a forklift operator was fired for “failure to recognize and acknowledge the importance of the safety issues related to the consumption of alcohol in the workplace” (Ritchie v. Richelieu Hardware).
The worker was engaged in an inventory process and consumed some beer during the day. He was then directed to operate a forklift, which he refused to do because he was impaired.
At trial, the employer argued it was not the drinking itself but the worker’s failure to recognize the seriousness of the workplace safety issue that justified dismissal for cause. The court found there was no just cause as the worker was terminated after this one incident without providing an opportunity to correct his conduct.
In summary, in both the union and non-unionized context, in order for a breach of a safety rule to constitute just cause for dismissal, the breach must be sufficiently severe to fundamentally violate the employment relationship.
Thus, if the employee operating the forklift has no prior discipline on his record, potentially has a disability and there are no special circumstances to consider, this behaviour likely warrants discipline and not termination.
To conclude, employers should:
•never create or condone a workplace practice that mixes alcohol consumption with work
•take immediate steps to investigate when there is a suspicion of alcohol consumption at the workplace
•recognize the accommodation issues
•have a clear safety policy that prohibits working while intoxicated and sets out the steps the employer will follow if an employee is discovered to be under the influence while at work.
For more information see:
•Re Premier Horticulture Ltd. and U.F.C.W., Local 832, 2001, CLB 12910
•Ritchie v. Richelieu Hardware, 2009 CanLII 34028 (Ont. S.C.)
Rebecca Saturley is a partner at Stewart McKelvey in Halifax. She practices management side labour and employment law and advises clients on a wide range of issues, including labour relations, union avoidance, health and safety and human rights. She can be reached at (902) 420-3333 or [email protected].
Answer: This question requires employers to balance a number of different and competing issues.
First (and perhaps this is obvious), the use of alcohol at work can have a serious adverse effect on workplace safety. There are a number of studies indicating the use of alcohol while at work impairs judgment and slows reaction time.
All occupational health and safety legislation in Canada requires that employers take reasonable steps to ensure safety in the workplace.
Thus, once an employer knows (or has reasonable cause to suspect) that an employee is operating a forklift while intoxicated, there is an obligation to take reasonable steps (investigate and act accordingly) to ensure safety is not compromised.
As in all cases where there is a policy prohibiting this type of behaviour, follow the policy.
If there is no policy addressing this type of behaviour, it’s time to draft one. If a policy exists but it hasn’t been followed closely, it’s time to communicate you will.
Second, some health and safety legislation in Canada specifically addresses the issue of alcohol impairment.
For example, British Columbia’s Workers Compensation Act provides: a worker must ensure the worker’s ability to work without risk to his health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes.
In these jurisdictions, there may be a better mandate to discipline employees who violate such safety obligations.
Third, the use of alcohol at work inevitably raises the issue the employee has a disability (alcohol addiction) requiring accommodation to the point of undue hardship.
Fourth, employers would also be wise to consider whether this issue is an isolated incident or evidence of a larger problem requiring a more comprehensive response, such as the development of policy.
Remember that workplace testing for drugs and alcohol raises another set of issues completely and should not be undertaken without a complete understanding of the relevant legal obligations.
Most arbitrators and courts would consider that operating any company vehicle while intoxicated is deserving of discipline. Both courts and arbitrators consider similar factors, such as:
•if there is any relevant statutory obligation or policy and whether such a policy has been complied with
•whether the behaviour is connected to a disability
•whether accommodation is necessary and whether it is available
•the severity of the misconduct
•whether there are extenuating or aggravating circumstances
•what other options were available under a progressive discipline policy
•whether the employee is remorseful.
In Re Premier Horticulture Ltd. and U.F.C.W., Local 832, an arbitrator conditionally reinstated a forklift operator who was discharged when he reported to work drunk. The worker in that case expressed genuine regret, had maintained sobriety and showed rehabilitative potential.
In another case involving a non-union worker, a forklift operator was fired for “failure to recognize and acknowledge the importance of the safety issues related to the consumption of alcohol in the workplace” (Ritchie v. Richelieu Hardware).
The worker was engaged in an inventory process and consumed some beer during the day. He was then directed to operate a forklift, which he refused to do because he was impaired.
At trial, the employer argued it was not the drinking itself but the worker’s failure to recognize the seriousness of the workplace safety issue that justified dismissal for cause. The court found there was no just cause as the worker was terminated after this one incident without providing an opportunity to correct his conduct.
In summary, in both the union and non-unionized context, in order for a breach of a safety rule to constitute just cause for dismissal, the breach must be sufficiently severe to fundamentally violate the employment relationship.
Thus, if the employee operating the forklift has no prior discipline on his record, potentially has a disability and there are no special circumstances to consider, this behaviour likely warrants discipline and not termination.
To conclude, employers should:
•never create or condone a workplace practice that mixes alcohol consumption with work
•take immediate steps to investigate when there is a suspicion of alcohol consumption at the workplace
•recognize the accommodation issues
•have a clear safety policy that prohibits working while intoxicated and sets out the steps the employer will follow if an employee is discovered to be under the influence while at work.
For more information see:
•Re Premier Horticulture Ltd. and U.F.C.W., Local 832, 2001, CLB 12910
•Ritchie v. Richelieu Hardware, 2009 CanLII 34028 (Ont. S.C.)
Rebecca Saturley is a partner at Stewart McKelvey in Halifax. She practices management side labour and employment law and advises clients on a wide range of issues, including labour relations, union avoidance, health and safety and human rights. She can be reached at (902) 420-3333 or [email protected].
