A Labour & Employment Law Update

19-June-2008

In a novel case, an Alberta arbitrator has applied the recently established “hybrid test” in a case involving addiction-related misconduct and determined that the employee’s breach of a drug and alcohol policy comprised both culpable and non-culpable elements. The arbitrator overturned the dismissal of the employee and determined that the hybrid test required accommodation of the addiction as well as discipline for the culpable misconduct.

The grievor, who was a 9-year employee, worked as a plant load operator at an open pit coal mine, recognized as a dangerous work environment. The grievor tested positive for cocaine in a post-incident test administered pursuant to the employer’s drug and alcohol policy. In a subsequent meeting, he candidly admitted that he had a lengthy history of illegal drug use and had used cocaine the night before the accident. However, he did not believe that he had an addiction, and since he was not using cocaine at the workplace, he did not think drugs were affecting his work performance. He admitted to being aware that the policy encouraged employees to come forward if they had a problem, and if they did so, there would be no disciplinary consequences. He also knew that the presence of drugs in his system violated the policy and that being caught could result in dismissal.

The employer argued it was justified in terminating the grievor’s employment since it had accommodated the grievor to the point of undue hardship by adopting a policy that offered assistance and support to employees with self-declared drug problems. However, the assistance and support in dealing with those problems required that employees seek assistance before being in breach of the policy. It was the employee’s obligation in the accommodation process to come forward and seek assistance prior to breaching the policy.

The arbitrator found that the fact the grievor did not avail himself of assistance through the policy did not exhaust the employer’s duty to accommodate. The arbitrator held that the grievor was indeed an addict, and his denial of the addiction caused him to think he had no problem and therefore did not require assistance through the EAP. His diminished capacity to understand how his cocaine use impacted upon his fitness to work, or the association between that usage and its effects upon safety at the work site were elements of a non-culpable nature. On the other hand, his knowledge of the policy and the carry-over effects of his off-duty use of cocaine were of a culpable nature. The arbitrator therefore held that the employee’s breach of the policy comprised both non-culpable and culpable elements, thus giving rise to the hybrid approach.

The arbitrator concluded that the employer failed to fulfill its duty to accommodate the grievor with respect to the non-culpable elements. He also held that the culpable elements in the mix of facts must be taken into account in arriving at the appropriate remedy. Given the hybrid nature of the case, the arbitrator substituted the grievor’s termination with a 2-year suspension without pay, with reinstatement after the suspension on the conditions that he successfully complete a rehabilitation program and enter a Last Chance Agreement with terms sufficient to monitor his commitment to remain drug free.

This case serves as a warning to employers that when faced with misconduct comprised of both non-culpable and culpable behaviour, they may be required to apply a human rights analysis to the non-culpable elements and a just cause analysis to the culpable elements in arriving at the appropriate response. Such instances may warrant a balanced approach of both accommodation and discipline.

It also stands as a caution to employers that it may be very difficult to discharge an employee with an addiction, even if the cause of the termination is misconduct. If there is some connection between the misconduct and the addiction, a duty to accommodate will ordinarily arise.

This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Vicki Giles in Edmonton, Tom Ross in Calgary, Glenn Tait in Yellowknife, or any member of our Labour & Employment Practice Group for advice on this or any other labour & employment law topic.