Canadian HR Reporter

Canadian HR RepoRteR december 1, 2014 employmeNt lAw 5 Last-chance agreement not end of story British Columbia worker with addiction issues relapsed – but not while on the job and he self-disclosed the problem A British columbia company discrimi- nated against an employee when it ter- minated him for breaching a last-chance agreement after he failed an alcohol test, an arbitrator has ruled. e 57-year-old worker, referred to as GH in the judgment, was a cook and deckhand for Seaspan, a marine transportation company based in North Vancouver. His duties included maintenance and safety on tugs, usually for two- to three-week trips. He was hired in 2003. GH had a history of alcohol and drug abuse beginning in his child- hood and continuing into adult- hood. He also used prescription medication and experimented with harder drugs, resulting in depression, paranoia, reduced self-esteem and suicidal thoughts. In 2005, GH became involved in attempts to establish an absti- nence-based addiction treatment program at Seaspan. He promot- ed the program and, when faced with resistance from workers who thought it was a way to get rid of employees, he self-disclosed his addiction and entered the treat- ment program. When GH was released from the program, he signed a return- to-work agreement where he agreed to abstain from drugs and alcohol for 24 months and grant- ed Seaspan the right to demand testing if it suspected he was im- paired. If GH breached the agree- ment, his employment would be "automatically reviewed." GH also signed a "contingency- monitored recovery agreement," that stipulated an appointed monitor would administer ran- dom urine tests at least once per month for two years, and GH had to go to Alcoholics Anonymous and Narcotics Anonymous meet- ings. A treatment plan for his de- pression was also included. GH successfully completed the two-year period without test- ing positive for alcohol or drugs. However, in May 2009, GH told Seaspan he had suff ered a relapse. He didn't have to attend a residen- tial treatment program but he was put on a two-year monitoring and counselling program with a psy- chologist and meetings. Worker suff ered relapses In February 2010, GH contracted pneumonia and his depression worsened. He self-medicated with marijuana cookies and tested pos- itive for drugs on March 1. A few months later, in June, his doctor cleared him to return to work in his safety-sensitive deckhand job and he signed another monitor- ing agreement committing him to abstaining from alcohol and drugs, attending support group meetings, going to anger manage- ment counselling and undergoing random urine or blood tests, for a period of two years. However, at a New Year's Eve party, GH unwittingly ate cookies and cakes containing marijuana. He immediately reported to his monitor and tested positive for marijuana. A doctor concluded GH was "treatment-resistant" and, there- fore, unfi t for a safety-sensitive job. GH was relieved of his duties while Seaspan considered other positions for him. e union fi led a grievance. In October 2011, they came up with a mediated settlement agreement that specifi ed an inde- pendent medical assessment to determine if GH was fi t for safety- sensitive work. If not, the company would place him in another job. If he was, he would be subject to a two-year monitoring agreement requir- ing abstinence from alcohol and drugs and random testing. Any positive test or breach of the agreement would result in imme- diate termination. e agreement also stated it "satisfi es the duty of the employer to accommodate to the point of undue hardship." e independent medical as- sessment indicated GH must completely abstain from drugs and alcohol and participate in- defi nitely in a recovery program, but if he complied, the prognosis was for a "sustained recovery and successful return to work." GH subsequently signed a return-to-work agreement for 27 months until January 2014, in which he had to maintain ab- stinence from drugs and alcohol, attend support meetings with a sponsor, undertake 12-step pro- grams and participate in "rigorous medical monitoring." Eventually, he would be placed back in his deckhand position. If he breached the agreement, "im- mediate termination" would be the result. GH complied with the agree- ment without event until March 2013, when he suff ered a knee in- jury at work. He was off work until July, during which time he contin- ued with alcohol and drug testing. On Aug. 13, GH was on a two- week assignment when he was told a test he did on Aug. 1 had come back positive. However, Seaspan had trouble fi nding a re- placement so it let him work for another couple of days. Once he was back, GH was told he would be kept on the payroll until the results from his "B" sam- ple were confi rmed. e sample also came back positive and GH's employment was terminated for breaching the terms of the Octo- ber 2011 settlement agreement. Termination grieved e union grieved the termina- tion, arguing it was discrimination based on disability and contrary to the Canadian Human Rights Act. e arbitrator noted the provi- sion in the settlement agreement that stated automatic termination would be the result of GH breach- ing it made it a last-chance agree- ment. ough not part of collec- tive agreements, the general view is that last-chance agreements "should be given contractual force unless there are strong and com- pelling reasons not do to so," said the arbitrator. However, last-chance agree- ments are subject to human rights legislation, making the agreement's statement it fulfi lled Seaspan's duty to accommodate irrelevant, said the arbitrator. GH's drug and alcohol addic- tion constituted a disability — a fact acknowledged by Seaspan by mentioning the duty to accom- modate in the settlement agree- ment, said the arbitrator. GH's termination because of his relapse was adverse treatment related to that disability, and the primary reason was his addic- tion — establishing prima facie discrimination. The arbitrator examined the requirements for determining whether prima facie discrimina- tion was a bona fi de occupational requirement: • e purpose of Seaspan's sub- stance abuse policy was a drug- and alcohol-free workplace which, given safety-sensitive po- sitions such as a deckhand, was rationally connected to the job. • e policy was designed to pro- vide guidance and treatment for those with addictions and estab- lish means to test and monitor employees in safety-sensitive positions, and was adopted in "an Jeff rey smith LegaL VieW worker > pg. 6 Expert Training for Human Resources Professionals At RT Workplace Training Inc., Learn practical, hands-on skills to manage workplace investigation and employment law problems from RT's employment lawyers and training experts. 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Participants will walk away able to tackle employment law issues in their workplaces.The Bootcamp is ideal for business owners and HR professionals. www.rubinthomlinson.com Tel: 416-847-1814 Copyright © 2014 Rubin Thomlinson, All rights reserved. RT LLP 20 Adelaide Street East, Suite 1104 Toronto ON M5C 2T6 Questions about our training courses or interested in having us create a customized session for your workplace? Email us at seminars@rubinthomlinson.com e arbitrator found Gh's drug and alcohol addiction constituted a disability — a fact acknowledged by seaspan by mentioning the duty to accommodate.

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