Canadian Labour Reporter

December 7, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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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

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