Canadian Employment Law Today

February 5, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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February 5, 2014 Employee's drinks get her in hot water THIS EDITION OF You Make the Call features an employee who was dismissed for being intoxicated at work. The employee was a part-time food services worker and cook for the Port Hawkesbury Nursing Home in Port Hawkesbury, N.S., hired in June 2005. The nursing home had elderly residents with a variety of medical conditions and limitations which required special diets and types of food delivery, such as puree, chopped, regular, or minced. Because of the various medical conditions, food delivery and menu development was stringent. Employees were generally not allowed to leave the nursing home during their shift, but on April 21, 2011, the cook was given permission to leave and she went Published biweekly 22 times a year Subscription rate: $299 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: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 8 How would you handle this case? Read the facts and see if the judge agrees to her car. After she came back she was observed slurring her speech and having difficulty speaking. Her manager and a union representative met with her and she was encouraged to contact the employee assistance program (EAP) before being driven home. On May 5, 2011, the cook was scheduled to perform a fire duty shift. However, she showed signs of intoxication and a union representative drove her home. Six days later, management determined the cook had been intoxicated at work on both occasions and she was suspended for five shifts. They also told her intoxication at work would not be tolerated and her employment would be in danger if it happened again. The cook denied drinking on those days, but agreed to meet their expectations. On Dec. 3, 2011, the cook was observed weaving back and forth in the kitchen. The sandwiches she was making weren't made properly and had to be thrown out, and the cook told the registered nurse on duty that she wasn't feeling well. She went home. Her manager advised her of the seriousness of the situation and discussed a last chance agreement with her. On Dec. 13, the cook was told she would be required to seek an alcohol abuse treatment program or face termination. The cook registered for a 30-day detox program in January 2012, for which she took a leave of absence. When she completed the program, her manager told her she would be terminated if there were any more incidents of alcohol consumption at work. A month later, on March 17, 2012, kitchen staff noticed the cook was behaving erratically. She gave two residents who were supposed to receive chopped food meals that weren't chopped and other staff had to remove the food because it was a choking hazard. The cook also forgot to start cooking cabbage for supper and was observed going to her car, where she was seen slurring her words and smelling of alcohol. Her keys were taken and she was driven home. On March 30, the nursing home termi- nated the cook's employment for being intoxicated at work. It informed her it couldn't trust her and it was concerned for the safety of the residents and the liability of the facility. The union grieved the dismissal, saying the cook was addicted to alcohol and she had a number of stressors in her life that contributed to her drinking, though she was seeking treatment. It agreed discipline was warranted but argued dismissal was too harsh. You Make the Call Was dismissal appropriate in the circumstances? OR Was dismissal too harsh? IF YOU SAID dismissal was appropriate, you're right. The arbitrator found the culminating incident in March 2012 could have resulted in injury to a resident and the cook's misconduct was serious. The arbitrator also found the cook saw herself as an addict but there was no medical diagnosis of alcoholism. The nursing home gave the cook multiple warnings and attempted to help her by recommending first the EAP and then requiring her to enter the detox program, said the arbitrator. "The employer recommended EAP at the earliest opportunity. It allowed the conduct to escalate before imposing the first formal discipline and before recommending a more intensive treatment programme, which was not inappropriate in the circumstances," said the arbitrator. "Further, there is no evidence that the employer has treated the (employee) differently or more adversely than other employees in similar situations." The arbitrator found that although the cook was seeking treatment and trying to deal with her problem, relapses could be expected — and did in fact happen following her 30-day detox program. In addition, there was evidence the cook hadn't fully come to grips with her problem as she had been on and off medication that had been prescribed for her and continued to drink when off the medication. Since the nursing home couldn't afford any relapses with its concern for liability and resident safety, the arbitrator found it had just cause for dismissal. See Port Hawkesbury Nursing Home and CUPE, Local 3630 (M. (T.)), Re, 2013 CarswellNS 954 (N.S. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2014

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