Canadian Labour Reporter

May 3, 2021

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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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

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