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Issue link: https://digital.hrreporter.com/i/1315186
at the mill were considered safety
sensitive.
Irving had a drug and alcohol
policy that required employees
to be fit for duty and no impair-
ment. Employees who volun-
tarily sought help for alcohol
or drug problems would not be
disciplined and Irving would
refer them for an assessment by
a substance abuse professional
(SAP).
The policy also allowed for al-
cohol testing in certain circum-
stances and the threshold for a
positive test was a 0.04-per-cent
blood alcohol level.
In 2007, the worker was con-
victed of a breathalyzer offence
after a motor vehicle accident. He
reported it to Irving and an SAP
assessed him as a social drinker
that didn't need assistance. Four
years later, the worker was in-
volved in another motor vehicle
accident involving alcohol. The
worker again reported it to Irving
and registered for counselling at
a rehabilitation centre. The SAP
recommended that the worker
submit to unannounced alco-
hol testing at work and indicated
that he needed help because he
couldn't stop drinking completely
on his own.
The worker signed a substance
abuse management agreement
(SAMA) in 2012 that required
unannounced testing and coun-
selling. However, in September
2018, the worker's absenteeism
was flagged. The worker didn't
say he had a substance abuse
problem or needed any support,
but soon after he was in another
car accident and said he was likely
to be charged with impaired driv-
ing.
While on a second SAMA, the
worker completed an inpatient
rehabilitation program in May
2019 and Irving implemented a
revised SAMA in June with unan-
nounced testing for at least two
years and zero tolerance for any
positive result.
On Oct. 21, the worker took an
unannounced test. The first test
had a .034 blood alcohol level and
the confirmation test .028. The
worker explained that he hadn't
consumed alcohol that day but
had drank "copious amounts" the
night before. He was terminated
on Oct. 25 for violating Irving's
alcohol and drug policy and the
SAMA.
The union argued that Irving
discriminated against the worker
because of his disability and the
company should have offered
more accommodation.
The arbitrator agreed that the
worker's addiction to alcohol was
a protected characteristic and
the termination was an adverse
impact that was related to the ad-
diction — Irving had been aware
of the worker's issues with alcohol
since 2008.
However, the arbitrator up-
held the termination, finding that
requirements under the policy
and the SAMA were rationally
connected to the performance of
the job in a safety-sensitive envi-
ronment, and Irving adopted the
standard in "an honest and good
faith belief that it was necessary
to the fulfilment of that legitimate
work-related purpose."
The arbitrator also found that
Irving couldn't accommodate
the worker any further without
undue hardship. The company
had "legitimate and real con-
cerns about the [worker's] ability
to control his addiction" since he
had multiple relapses and was on
his third SAMA. This was a seri-
ous issue for a safety-sensitive
workplace, said the arbitrator.
"When an employee with alco-
hol abuse issues has failed to re-
spond to multiple rehabilitation
processes and there is no objec-
tive evidence that further efforts
at accommodation are likely to
succeed, it has generally been
determined that the employer
has accommodated to the point
of undue hardship," said the ar-
bitrator in dismissing the griev-
ance.
Reference: Irving Paper and Unifor, Local 907. Michel Doucet — arbitrator. James Green for employer. David
Gauthier for employee. Nov. 6, 2020. 2020 CarswellNB 505
would be enforced. Previously,
employees were allowed to wear
rings under their work gloves, but
under the new enforcement no
rings were allowed. A job hazard
analysis confirmed that wearing
rings had the potential for serious
injury if caught in machinery or
entangled in conveyor belts.
There was one exception to
the rules — employees of the Sikh
faith were permitted to wear a sil-
ver bracelet that was an obligation
of observant Sikhs. However, they
had to wear it further up the arm
while working rather than the
customary way of loose around
the wrist.
CBSA officers often didn't fol-
low the safety rules and wore
rings and watches, despite the
fact that they worked on the same
machinery. Canada Post manag-
ers didn't have the authority to
make them comply.
On Dec. 14, 2018, the manager
told the worker that several of
her coworkers had complained
about her conduct, including not
removing her ring while on the
work floor. The manager asked
the worker to remove her ring
before returning to work, but the
worker refused, saying it had re-
ligious significance — it was an
engagement ring that had been
blessed by her parish priest —
and she had it taped under her
glove.
The worker was called into a
second meeting about 15 min-
utes later, where she was given
an emergency suspension and
told she could either complete a
religious accommodation form
or take off the ring while work-
ing. The worker refused — she
felt the form was intrusive and
said the ring was "a symbol of our
commitment to each other" and
was "blessed." Canada Post sus-
pended her for the remainder of
her shift.
On each of the next four work
days, the worker was asked to re-
move her ring when she arrived.
Each time she refused and was
suspended for the day. Finally, on
Dec. 21, Canada Post suspended
her indefinitely for refusing to
obey clear orders based on legiti-
mate safety rules.
The union argued that the
worker had been singled out and
the ring ban wasn't reasonable or
consistently enforced.
The arbitrator found that the
collective agreement put an
obligation on Canada Post "to
prevent and correct any situa-
tion" that could endanger em-
ployee health and safety. Since
wearing jewelry while work-
ing on mechanized equipment
posed a risk, the rule prohibit-
ing rings while working was
reasonable and consistent with
the collective agreement, said
the arbitrator.
The arbitrator also found that
employees were informed of the
rule and the worker was given
multiple opportunities to take off
the ring before being suspended.
The rule was clear and the worker
was notified of the consequences
of her failure to comply, said the
arbitrator.
In addition, the worker refused
to complete an accommodation
form or accept management's
suggestions of wearing the ring
on a chain under her clothes or
putting it in her pocket. As a re-
sult, she didn't participate in the
employer's efforts to accommo-
date, said the arbitrator in up-
holding the suspensions.
Reference: Canada Post and CUPW. Allen Ponak — arbitrator. Stephen Williams for employer. Sharon Paris for
employee. Nov. 2, 2020. 2020 CarswellNat 4673
Clerk didn't take part in employer's accommodation efforts
Relapses, breaches made it too risky to continue working