Canadian HR Reporter

CANADIAN HR REPORTER September 21, 2015 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 190,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 10/8/2014 3:40:37 PM Firing after drug-fuelled accident upheld Drug and alcohol policy didn't discriminate because worker had chance to seek help Ian Stewart was a heavy equipment opera- tor for Elk Valley Coal near the Cardinal River in Alberta. His duties included op- erating a 170-ton truck, a 260-ton truck, a wheel loader and a plant loader. Elk Valley's mining operation had many hazards so it endeavoured to keep its workplace as safety- sensitive as possible. is includ- ed an alcohol, drugs and medi- cations policy it implemented in May 2005, updating an earlier policy that had been agreed to by the union. The updated policy was im- plemented under Elk Valley's management rights under the collective agreement. e policy allowed employees "with a de- pendency or addiction" to seek as- sistance for rehabilitation without fear of discipline, as long as they did so before a "signifi cant event" such as a work-related incident happened. Elk Valley pledged to help any employees who came forward with "problems of abuse, depen- dency or addiction associated with alcohol, illegal drugs and medications" through its em- ployee assistance program (EAP). e policy did not exempt em- ployees who came forward after a signifi cant event from discipline or dismissal, though the latter was not automatic. The policy didn't apply to off -duty conduct. e old policy simply encouraged employees with concerns about their use of drugs or alcohol to seek assistance through the EAP. Elk Valley also had a practice regarding employees who were terminated for drug or alcohol abuse related to their work. If they followed a rehabilitative program, Elk Valley would consider rehiring them after six months. Stewart attended a training ses- sion on the new policy and signed a form indicating he understood it. He didn't think he had a prob- lem with his drug use, so he didn't pursue any assistance. Positive drug test On Oct. 18, 2005, Stewart was operating a loader truck when he struck another truck. After the incident, he took a drug test and tested positive for cocaine. Stew- art acknowledged he had con- sumed cocaine the night before and was feeling sleepy at the time of the incident because of it. Elk Valley terminated Stewart's employment on Nov. 3, 2005, for violating the alcohol, drug and medication policy and causing a potentially dangerous workplace incident. In the termination let- ter, the company told him it was "hopeful that you will fi nd the per- sonal resolve that is necessary to overcome an addiction." It also said it would consider an application for re-employ- ment after six months if there was a suitable vacancy, he suc- cessfully completed a rehabilita- tion program and he agreed to a 24-month recovery maintenance agreement. e day after his termination, Stewart sent a letter to Elk Valley saying he had "come to realize that I do have a problem for which I am currently seeking professional help." e union off ered to help him with treatment at a nearby addiction centre, but Stewart didn't follow up. e union fi led a complaint saying Stewart had a drug addic- tion that constituted a physical disability and Elk Valley discrimi- nated against him on the grounds of that disability when it refused to continue to employ him be- cause of it. The Alberta Human Rights Tribunal found there was no discrimination since Elk Valley terminated Stewart because he breached the company's drug and alcohol policy, not because of his drug dependency. The tribunal agreed Stewart had a disability and his termina- tion was adverse treatment; it found the disability was not a fac- tor in the termination. " e adverse eff ect of the policy as applied to Mr. Stewart came about not because of his disabil- ity, but because of his failure to stop using drugs and his failure to disclose," said the tribunal. The tribunal also found Elk Valley's drug and alcohol policy wasn't arbitrary and didn't perpet- uate stereotypes or disadvantages suff ered by drug addicts. The union appealed the de- cision to the Alberta Court of Queen's Bench. e court agreed with the tribunal's fi nding that Stewart had the capacity to use the assistance provided for in the policy but chose to conceal his drug use, and his dismissal was the result of his breach of the policy. It also agreed keeping drug users and addicts out of the workplace was a bona fi de occu- pational requirement in Elk Val- ley's workplace. However, the court found while the drug and alcohol policy of- fered accommodation — as did Elk Valley's practice of off ering re-employment after six months for rehabilitated former employ- ees — the accommodation wasn't to the point of undue hardship. In Stewart's case, he only came to realize he had a problem after the incident, at which point he wasn't protected from discipline or termination under the policy if he came forward, said the court. However, the tribunal's decision was upheld and the union ap- pealed again, this time to the Al- berta Court of Appeal. e court of appeal noted that Elk Valley's policy singled out "the subset of employees who have or believe they may have alcohol or drug addiction or dependency, of whom perhaps a smaller subset of PROTECTED > pg. 7 Stewart could have used the assistance provided but chose to conceal his drug use.

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