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Firing after drug-fuelled accident upheld

By Jeffrey R. Smith
| www.cos-mag.com

Ian Stewart was a heavy equipment operator for Elk Valley Coal near the Cardinal River in Alberta. His duties included operating a 170-ton truck, a 260-ton truck, a wheel loader and a plant loader.

Elk Valley’s mining operation had many hazards so it endeavoured to keep its workplace as safety-sensitive as possible. This included an alcohol, drugs and medications policy it implemented in May 2005, updating an earlier policy that had been agreed to by the union.

The updated policy was implemented under Elk Valley’s management rights under the collective agreement. The policy allowed employees “with a dependency or addiction” to seek assistance for rehabilitation without fear of discipline, as long as they did so before a “significant event” such as a work-related incident happened. 

Elk Valley pledged to help any employees who came forward with “problems of abuse, dependency or addiction associated with alcohol, illegal drugs and medications” through its employee assistance program (EAP). 

The policy did not exempt employees who came forward after a significant event from discipline or dismissal, though the latter was not automatic. The policy didn’t apply to off-duty conduct. The old policy simply encouraged employees with concerns about their use of drugs or alcohol to seek assistance through the EAP. 

Elk Valley also had a practice regarding employees who were terminated for drug or alcohol abuse related to their work. If they followed a rehabilitative program, Elk Valley would consider rehiring them after six months.

Stewart attended a training session on the new policy and signed a form indicating he understood it. He didn’t think he had a problem with his drug use, so he didn’t pursue any assistance.

Positive drug test

On Oct. 18, 2005, Stewart was operating a loader truck when he struck another truck. After the incident, he took a drug test and tested positive for cocaine. Stewart acknowledged he had consumed cocaine the night before and was feeling sleepy at the time of the incident because of it.

Elk Valley terminated Stewart’s employment on Nov. 3, 2005, for violating the alcohol, drug and medication policy and causing a potentially dangerous workplace incident. In the termination letter, the company told him it was “hopeful that you will find the personal resolve that is necessary to overcome an addiction.” 

It also said it would consider an application for re-employment after six months if there was a suitable vacancy, he successfully completed a rehabilitation program and he agreed to a 24-month recovery maintenance agreement. 

The day after his termination, Stewart sent a letter to Elk Valley saying he had “come to realize that I do have a problem for which I am currently seeking professional help.” The union offered to help him with treatment at a nearby addiction centre, but Stewart didn’t follow up.

The union filed a complaint saying Stewart had a drug addiction that constituted a physical disability and Elk Valley discriminated against him on the grounds of that disability when it refused to continue to employ him because of it.

The Alberta Human Rights Tribunal found there was no discrimination since Elk Valley terminated Stewart because he breached the company’s drug and alcohol policy, not because of his drug dependency. 

The tribunal agreed Stewart had a disability and his termination was adverse treatment; it found the disability was not a factor in the termination.

“The adverse effect of the policy as applied to Mr. Stewart came about not because of his disability, but because of his failure to stop using drugs and his failure to disclose,” said the tribunal.

The tribunal also found Elk Valley’s drug and alcohol policy wasn’t arbitrary and didn’t perpetuate stereotypes or disadvantages suffered by drug addicts. 

The union appealed the decision to the Alberta Court of Queen’s Bench. The court agreed with the tribunal’s finding that Stewart had the capacity to use the assistance provided for in the policy but chose to conceal his drug use, and his dismissal was the result of his breach of the policy. It also agreed keeping drug users and addicts out of the workplace was a bona fide occupational requirement in Elk Valley’s workplace.

However, the court found while the drug and alcohol policy offered accommodation — as did Elk Valley’s practice of offering re-employment after six months for rehabilitated former employees — the accommodation wasn’t to the point of undue hardship. 

In Stewart’s case, he only came to realize he had a problem after the incident, at which point he wasn’t protected from discipline or termination under the policy if he came forward, said the court. However, the tribunal’s decision was upheld and the union appealed again, this time to the Alberta Court of Appeal.

The court of appeal noted that Elk Valley’s policy singled out “the subset of employees who have or believe they may have alcohol or drug addiction or dependency, of whom perhaps a smaller subset of people who have such a disability,” but it provided for a “protected route to assistance,” not “rigid and inflexible discipline.”

The appeal court found the policy could catch an employee with an addiction disability, but also drug users who didn’t have a disability. In addition, a disability revealed voluntarily before a significant event would have no adverse impact. As a result, “disability was not a real factor in the enforcement of the policy,” it said.

The appeal court also found the suggestion that Stewart was in denial of his condition didn’t change the reasonableness of Elk Valley’s accommodation steps and the policy’s purpose of maintaining a safety-sensitive workplace. Whether Stewart felt he was dependent on drugs or not, he knew he used them before going to work and he had the opportunity to come forward without penalty.

“Creating a situation where, post-incident, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace,” said the court of appeal.

It disagreed with the Court of Queen’s Bench regarding accommodation, finding “undue hardship relates to the negative effect on the operations of the employer arising from the effort to accommodate.” 

Elk Valley’s balancing of options for accommodation with its safety-sensitive workplace was adequate and the company lived up to its duty to accommodate, said the appeal court.

The appeal was dismissed and Stewart’s dismissal was upheld.

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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