Canadian Employment Law Today

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 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 @thomsonreuters.com Website: www.employmentlawtoday.com thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen Lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: Jeffrey.r.smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 Last chance agreement vs. duty to accommodate THIs eDITIOn OF You Make the Call fea- tures a worker who was terminated for vio- lating a last chance agreement. Martin Friesen was a machine operator with New Flyer Industries, a bus manufac- turing company in Winnipeg. He was hired in January 1996. Over the years, Friesen had attendance issues at work, leading to several instances of discipline and the accumulation of de- merit points under New Flyer's disciplinary system. On Aug. 1, 2012, he was assessed demerit points for failing to call into work to report an absence twice in a three-month period. e points put him over the limit established for termination of employment. Friesen attended a four-week intensive rehabilitation program in August and Sep- tember 2012. After he successfully com- pleted the program, New Flyer agreed to reinstate him to his machine operator posi- tion on a last chance agreement, eff ective Oct. 9, 2012. Two months later, on Dec. 10, Friesen failed an alcohol test. New Flyer felt this was a violation of the last chance agreement, but after Friesen attended another reha- bilitation program, the union requested the company consider another last chance agreement. A second last chance agreement was hammered out based on conditions set by the rehab organization and New Flyer's con- cerns. e agreement stipulated that Fries- en was required to participate — and verify his attendance — in aftercare programs, as well as bi-weekly alcohol and drug tests. On April 15, 2013, Friesen didn't report for work. He also failed to show up the rest of the week. On April 22, he provided a medical note dated April 16. However, New Flyer suspended him and, on April 26, ter- minated his employment for violating the second last chance agreement. Friesen and the union challenged the ter- mination, arguing it was excessive discipline and New Flyer should have accommodated his disability of alcoholism, of which the company was well aware. Friesen claimed at the time of signing the last chance agree- ment, he asked to go into a more intensive treatment program, but New Flyer denied him. He explained his condition caused him to miss certain days and he didn't call into work because he was depressed and didn't want to do anything — in addition to alco- holism, he suff ered from anxiety and was on antidepressants. He also said proper accommodation, combined with his already successful com- pletion of rehabilitation programs, would keep the employment relationship viable, since he was regularly attending AA meet- ings and the rehab organization testifi ed to his desire to deal with his problem. New Flyer argued that it couldn't risk having Friesen work as a machine operator while impaired — the safety concerns were too great. e company maintained it had accommodated Friesen for 10 years with two rehab programs without success and further employing him would constitute undue hardship and the second last chance agreement had input from the rehab orga- nization. All it was concerned with was the conditions of the agreement, and Friesen violated them, the company argued. IF YOU sAID New Flyer should have fur- ther accommodated Friesen, you're right. e arbitrator noted the challenge of de- ciding between the validity of a last chance agreement and an employee's disability be- cause of alcohol addiction. Also, the arbitra- tor found New Flyer's conduct in allowing Friesen treatment and reinstating him after breaching the fi rst last chance agreement was "beyond reproach" and the fi nal last chance agreement was reasonable and fair. However, the arbitrator found further accommodation did not constitute undue hardship for New Flyer and there was a good chance of a successful return to the work- place for Friesen. Friesen came across as someone who "is genuinely trying to come to grips with his problem and making a very sincere eff ort to remain alcohol-free," said the arbitrator. e arbitrator found Friesen's eff orts in re- hab programs and desire to undergo inten- sive treatment demonstrated his commit- ment to getting better and the likelihood that he would be able to perform his job again. e arbitrator ordered New Flyer to re- instate Friesen to his machine operator position, but without back pay, letting the time since his dismissal to serve as a suspen- sion. However, the arbitrator stressed there would still have to be conditions accom- panying the reinstatement: Friesen must completely abstain from alcohol and drugs, continue to attend AA meetings, receive regular treatment for his depression, live at his current address or a group facility, and be subject to random testing at work. Any positive test, or any absences or misconduct related to alcohol, would result in "immedi- ate discharge," said the arbitrator. For more information see: • New Flyer Industries Canada ULC and Unifor, Local 3003 (Friesen), Re, 2014 Car- swellMan 162 (Man. Arb.). You MAKe the CAll Was termination appropriate in the circumstances? OR Should the company have further accommodated Friesen's alcoholism?

• Cover