Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was termination not the right call? OR Did the employer have just cause to terminate the worker's employment? School caretaker swept out by alcohol addiction THIS INSTALMENT of You Make the Call features a worker who was fi red after violat- ing a last-chance agreement related to the worker's alcohol problems. e worker was hired as a caretaker with the Toronto District School Board (TDSB) in 1996. She had no discipline on her record for 19 years until 2015, when she was in an abusive relationship and started abusing alcohol. Her alcohol abuse caused her fre- quent absences, leading to her missing al- most 40 per cent of her shifts in 2015. Her attendance improved in 2016, though she still missed almost one-quarter of her shifts that year. On Feb. 15, 2017, the TDSB met with the worker to discuss her problems, as at that point she had missed 87 per cent of her shifts since the beginning of January after she had reunited with her abusive partner. e worker agreed to enter a residential treatment facility for her alcohol addiction, but the TDSB didn't receive documentation proving her treatment. Without the proof of treatment, it suspended the worker's sick pay. e worker provided the necessary documentation of treatment on April 3 and the TDSB reinstated sick pay retroactive to Feb. 27. e following week, on Apr. 14, the worker and her union agreed to a last chance agreement that required the worker to enter a residential alcohol treatment program, attend Alcoholics Anonymous meetings daily until entering the program, and avoid consuming any alcohol or drugs at any time before or after reinstatement. e worker also had to provide written proof of successful completion of the program and a prognosis for continued abstinence. Finally, the worker had to enrol in an after-care program and for one year following reinstatement and she had to submit to random urine samples and breathalyzer tests as well as assessments by an alcohol addiction specialist. Any breach of these provisions would lead to the worker's discharge "and will satisfy the just cause provision of the parties' collective agreement." e worker entered a three-week resi- dential treatment program around the same time, but didn't return to work or contact her supervisor until May 23, when she provided a doctor's note advising of her continued ab- sence from work until the end of May. How- ever, by June 1 she didn't return to work or contact her supervisor. e TDSB wrote to the worker request- ing documentation of the completion of her treatment program and supporting her absence, and a meeting on June 7 where she could be evaluated by an alcohol addiction specialist as per the agreement. e worker had a doctor's appointment scheduled for that day, so she requested a new meeting date. e TDSB had arranged for a techni- cian to administer a urine test that day, so it refused to reschedule. e worker refused to submit to a test ad- ministered by the TDSB — characterizing the request as harassment — and said she would supply her own. When she failed to attend the meeting, the TDSB terminated her employment, claiming it had accommo- dated the worker to the point of undue hard- ship and the worker breached the last chance agreement. IF YOU SAID the employer had just cause to terminate the worker's employment, you're right. e arbitrator noted that the last chance agreement could not be the fi nal authority when there was a collective agreement with its own just cause provision in play. How- ever, the arbitrator found that before the last chance agreement was executed, the work- er's attendance was "far below the minimally acceptable level of attendance," and the TDSB had accommodated the absences and provided sick pay through various leaves and relapses since 2015. In fact, the last chance agreement itself was a form of accommoda- tion when the worker had reached the point of dismissal and the TDSB had reached the point of undue hardship, the arbitrator said. Alternatively, the arbitrator found that the worker breached the last chance agreement by failing to complete the residential treat- ment program or provide proof of treat- ment, failing to submit to an assessment by an addiction specialist, and refusing the test- ing required in the last chance agreement. In addition, the evidence pointed to the fact the worker continued to consume alcohol. e arbitrator determined that the TDSB accommodated the worker to the point of undue hardship and upheld the termination of her employment. For more information see: •Toronto District School Board and CUPE, Local 4400 (X), Re, 2018 CarswellOnt 7157 (Ont. Arb.).

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