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Issue link: https://digital.hrreporter.com/i/1366966
years without any significant
discipline. However, in 2019 he
started having problems with
excessive absenteeism and often
failed to follow Hydro One's call-
in procedure.
Hydro One terminated the
worker's employment on Jan. 10,
2019. The union filed a grievance
claiming there wasn't just cause,
and shortly thereafter a medical
assessment determined that the
worker had a "severe cocaine use
disorder with a concurrent alco-
hol use disorder."
Hydro One reinstated the work-
er with a settlement agreement
that required regular drug testing
and abstinence from drugs and al-
cohol. He was also required to at-
tend Alcoholics Anonymous (AA)
meetings. A failure to meet all of
these requirements would result
in his termination a second time.
However, on Aug. 25, 2020,
the worker tested positive for co-
caine. Hydro One interviewed the
worker, who acknowledged that
he had consumed cocaine four
days prior to the test. He also said
that he had not been attending
AA meetings since March. Hydro
One determined that the work-
er's breach of the reinstatement
settlement irreparably damaged
the employment relationship and
terminated the worker's employ-
ment on Oct. 6.
The union grieved the second
termination, arguing there wasn't
just cause and the employer vio-
lated the worker's human rights be-
cause his disorders were disabilities
that were factors in his dismissal.
The worker underwent mul-
tiple drug tests following his ter-
mination and all were negative,
except for a positive result for
marijuana. He also started an out-
patient treatment program.
The arbitrator acknowledged
that the worker's job was safety-
sensitive and Hydro One had to
rely on him coming to work "clean
and sober," or else there would be
an "unreasonable risk." However,
there was also a duty for Hydro
One to accommodate a disability
to the point of undue hardship, and
the worker "clearly suffers from a
disability," said the arbitrator.
The arbitrator found that there
was a causal connection between
the misconduct — using cocaine
and reporting for work with the
drug in his system — and the
worker's disability. The disability
also created "a sufficient displace-
ment of responsibility" due to the
nature of the disorders, the arbi-
trator added.
The arbitrator also found that
the worker was "perilously close
to the undue hardship limit" for
accommodation, but that limit
hadn't been reached, particularly
considering that the worker made
a "full and frank admission" to his
problems and was making an ef-
fort to seek treatment.
The arbitrator determined
that the worker should be given a
suspension without pay to cover
the time since his termination
— to reflect the "serious breach
of health and safety rules" and to
"drive home the requirement of
maintaining sobriety as a condi-
tion of continued employment
with Hydro One" —followed by
a reinstatement to his position
with strict conditions:
• The worker had to complete
the six-week outpatient pro-
gram and provide proof of
his attendance, successful
completion, and a negative
drug test before returning to
work.
• The worker must completely
abstain from alcohol and
non-prescribed drugs in-
definitely and avoid any mis-
conduct involving alcohol,
drugs, dishonesty, or safety
violations.
• The worker must meet reg-
ularly with an addictions
counsellor and attend three
AA meetings per week while
obtaining a sponsor.
• The worker must meet
with his family doctor on a
monthly basis and Hydro
One could request a doc-
tor's certificate every six
months confirming support
and recommending ongo-
ing treatment.
• The worker must agree to
random drug and alcohol
testing for at least two years.
Reference: Hydro One and Power Workers' Union. John Stout — arbitrator. Daniel McDonald for employer.
Nick Coleman for employee. Nov. 18, 2020. 2020 CarswellOnt 17338
received a complaint from a cus-
tomer who said that the worker
had been driving a bus while eat-
ing from a bowl. The worker's su-
pervisor reviewed footage from
an onboard surveillance camera
that depicted the worker with a
bowl on the steering wheel, a fork
or spoon in his right hand, and his
left hand resting on the steering
wheel and holding the bowl while
the bus was stopped and moving.
At times, the worker had no hands
on the wheel while the bus was
moving.
Management interviewed the
worker on Jan. 7, 2019, and the
worker acknowledged that he had
made a mistake and had breached
the city's policies. He explained
that he had been hungry and
started eating rice out of a bowl
because he had been too busy to
take a break to eat. He also rec-
ognized that the city's policy was
to allow operators to take a break
if they needed to eat or use the
washroom, but he said that it was
difficult if he was running late.
The worker said he didn't have
any medical condition — al-
though he had diabetes — and
apologized, but the city consid-
ered distracted driving serious
misconduct because it put the
safety of the employee, passen-
gers, and equipment at risk. Not-
ing the five-day suspension on his
record, the city terminated the
worker's employment on Jan. 15.
The union grieved the dis-
missal as excessive, noting that the
worker apologized and his diabe-
tes required him to eat when he
needed to.
The arbitrator found that the
worker's conduct was a serious
risk to safety, as he had little con-
trol of the bus when eating out of
the bowl. Had something grabbed
the wheels of the bus, such as a
pothole or ridge in the pavement,
the consequences could have been
severe, the arbitrator said, adding
that the conduct was "a deliberate
act which constituted a reckless
disregard for public safety."
The arbitrator also found that
the worker didn't mention his
diabetes in the investigation in-
terview, so he couldn't use that as
a mitigating reason for eating be-
hind the wheel. In addition, there
was no evidence that his diabetes
caused a lapse of judgment.
The arbitrator also felt the
worker's previous suspension for
an altercation with a passenger
was serious — and safety-related
— and the last step in the progres-
sive disciplinary process before
termination. The worker should
have known that he needed to
"run absolutely clean" or his job
would be at risk, the arbitrator
said.
The arbitrator determined that
the worker's misconduct, when
combined with his previous sus-
pension, demonstrated that he
was likely to repeat the same type
of conduct and his failure to be
completely forthcoming about
his diabetes as a risk factor was a
breach of trust. The termination
was upheld.
Reference: Calgary (City) at ATU, Local 583. David Tettensor — arbitrator. Vamsi Suresh-Mills, Chelsea Sutherland for
employer. Patrick Nugent, Rohit Gill for employee. Dec. 1, 2020. 147 C.L.A.S. 7
Previous suspension indicated likelihood of repeating
'Perilously close' to undue hardship, says arbitrator