Terminating the Alcohol Dependent Employee – An Emerging Trend

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For employers, terminating the employment of the alcohol dependent employee often proves treacherous. The alcoholic employee often successfully seeks refuge in the Ontario Human Rights Code. Accordingly, arbitrators and courts have demonstrated a willingness to overturn terminations for misconduct, where the employee can prove that their alcoholism rendered them “disabled” under the Human Rights Code.

However, three recent decisions (in three different Canadian jurisdictions) suggest that arbitrators and courts may be becoming more stringent in determining whether employee misconduct was caused by alcoholism.

These cases suggest that the alcoholic employee seeking to have his or her termination overturned will have to clearly demonstrate a link between their alleged alcoholism and the misconduct that gave rise to their termination.

In Winnipeg City and Amalgamated Transit Union Local 1505, [2006] M.G.A.D. No. 4 (Graham), the grievor was terminated for arriving at work late while under the influence of alcohol.

The grievor had a prior disciplinary record (mostly related to late arrivals and absences) and at least some of the past incidents resulted from the grievor’s misuse of alcohol.

The arbitrator heard evidence of the employer’s consistent attempts to accommodate the grievor’s alcoholism, which bolstered its position that it had accommodated the employee to the point of undue hardship.

Ultimately, the arbitrator dismissed the grievance, as he was not convinced that the grievor’s absence on December 24, 2004 was related to his alcoholism. There was no evidence that on that date, the grievor was incapable of making responsible decisions regarding his attendance at work.

The arbitrator’s comments with respect to the proper approach to be adopted by employers in cases of this nature are also of value. Essentially, the arbitrator accepted that the proper approach to adopt when dealing with the alcoholic employee is to combine a disciplinary response to the problematic behaviour (typically involve the imposition of a penalty on the employee) with a therapeutic approach to the employee’s disabilities, such as insisting on abstinence and participation in a treatment program. Another feature of this approach is the tangible assistance of the employer, which may take the form of either an employer-sponsored assistance program, or granting leave of absence for the purpose of pursuing treatment. The features of this approach to treating the alcoholic employee could ultimately become the touchstones of a Last Chance Agreement (which also reflects this disciplinary /therapeutic approach).

In Re Toronto Transit Commission and A.T.U., Local 113 (2006), 149 L.A.C. (4th) 69 (Roberts), the grievor was terminated pursuant to a specific penalty provision of the collective agreement which forbade drinking while on shift. Again, in that case, the arbitrator viewed the grievor’s claim of alcoholism very narrowly.

The employer adduced evidence that on two occasions, the grievor had left work during his shift in order to go to local bars and drink beer. On both occasions, the grievor drank two beers at the bar and returned to work.

In dismissing the grievance, the arbitrator held that he was unable to conclude that it was the grievor’s alcoholism which motivated him to leave the workplace and go to a bar. The arbitrator held that there was no evidence that the grievor had an overwhelming craving to consume alcohol while on shift. Without this causal connection, the arbitrator was willing to uphold the specific penalty and dismissed the grievance.

In A-G of Canada and Brent Pearson, [2006] F.C.A. 199 (CanLII), the appellant had applied for EI benefits following his dismissal. He had been terminated due to chronic absenteeism. The appellant claimed that he suffered from an alcohol addiction at the time of his dismissal, and therefore was not responsible for his misconduct.

Prior to his dismissal, the employer had given Mr. Pearson a number of warnings and had offered him help in finding a solution to his alcohol problem. However, he made it clear that he was not willing to accept any of the employer’s offers of help.

Ultimately, the Federal Court of Appeal found that Mr. Pearson was not entitled to EI benefits. The Court found that there was no evidence to support the view that his alcoholism caused his absenteeism. Accordingly, in the Court’s view, the employer had acted properly in dismissing Mr. Pearson on the basis of his poor attendance record.

The above cases all suggest that arbitrators and courts may be reluctant to accept alcoholism as a basis for excusing misconduct, unless the alcoholic employee is able to demonstrate that his or her disability clearly caused him or her to act inappropriately. The cases also suggest that the employer who takes consistent steps to assist the alcoholic employee puts itself in a much better position if ultimately faced with having to discharge the employee.