As many employers know, the accommodation process is far from simple
As many employers know, the accommodation process is far from simple. Then, when you put the duty to accommodate in the context of discipline, it becomes even more complex and difficult to get right. However, as a recent arbitration decision illustrates, an employer who ignores the concept of accommodation altogether does so at its own peril.
The very first paragraph of Arbitrator Graham Clarke’s decision in Canadian Pacific Railway and Teamsters Canada Rail Conference Case No. 4667 seems straightforward:
CP terminated locomotive engineer (LE) Greg Paisley on September 15, 2017. The parties did not dispute that LE Paisley had brought alcohol onto his train and had later consumed some of it during his tour of duty.
What more do you need? Termination justified, one might think: a safety-sensitive position and a clear violation of company policy, not to mention a violation of Criminal Law. However, when issues of discipline and disability mix, employers must be circumspect in their approach.
In this case, although Mr. Paisley admitted to possessing and consuming alcohol while on duty and operating a locomotive under the influence – and was subsequently found to have been intoxicated beyond the legal limit by a breathalyzer test administered by the RCMP – he took responsibility for his misconduct and also disclosed to his employer that he suffered from alcohol abuse. The Employer argued that termination was warranted on the grounds that:
- His alcohol addiction was only disclosed following his dismissal; and
- Regardless, there was no causal connection between any disability Mr. Paisley may have had and his actions in transporting and consuming alcohol while on duty and operating machinery under the influence of alcohol, in clear violation of company policy.
If this sounds familiar, you probably read Jay Rider’s blog in this space on January 31, 2019 commenting on the Sunnyside Home case. There, reinstatement was ordered for a nurse who stole narcotics and engaged in resident abuse at a long-term care home in Waterloo, where the Employer (the “LTC” referenced below) made similar arguments:
The LTC argued that DS had not disclosed her addiction and that it was unaware of DS’s addiction when it terminated her employment. The LTC also argued that DS’s termination was based solely on her misconduct and egregious breaches of employer policy. The LTC further submitted that it had in no way discriminated against DS or failed to accommodate her because she was treated no differently than any other non-addicted employee who engaged in serious theft, dishonesty and resident abuse would have been.
As we know, in that case the Grievor was reinstated, just as Mr. Paisley was in the instant case. In both decisions, the arbitrators cited a failure in the procedural duty to accommodate: because the employer did not even explore accommodation upon learning of the disability – narcotic addiction in Sunnyside Home and alcohol addiction for Mr. Paisley – improper discrimination was found to have occurred and the employers’ respective justifications for the discipline fell flat, leading to the reinstatement of each grievor.
However, Mr. Paisley’s reinstatement did diverge from the reinstatement of the Grievor in Sunnyside Home in 2 important ways:
- No compensation or back pay was ordered for Mr. Paisley; and
- Mr. Paisley was not put back in the same position, but rather ordered to be placed in a non-safety-sensitive position and had severe conditions placed on his ongoing employment including:
- Confirmation of fitness to work;
- Requirement to abstain from consumption of alcohol or drugs for the duration of his employment;
- 2 years of random, unannounced testing;
- Any violation will result in termination.
Although it may still be difficult to reconcile such an egregious and dangerous breach of company policy and lapse in judgement with continued employment, what employers can take away from this decision, and others like it including Sunnyside Home, is that the moment a disability is disclosed, any disciplinary process has to be suspended while the employer examines the effect such a disability might have on the grievor, his or her misconduct and the disciplinary process itself.
If you find yourself in that situation, the lawyers at CCPartners are here to ensure you take the right steps and arrive at the proper outcome, rather than ending up another cautionary tale.
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