a way, the onus was put back on Stewart to
justify his decision to not disclose a depen-
dency prior to the incident. As he failed to
offer a persuasive justification, the court up-
held his termination for cause.
At the same time, an employer is advised
to proceed with caution when relying on
Stewart, as the decision appears to brush
up against some core principles that have
governed the law of addiction — principally,
that "denial" is considered a part of the dis
-
ease. As stated above, leave to appeal to the
Supreme Court of Canada has been granted
and one might expect the "denial" argument
to be front and centre in the hearing.
While the Supreme Court judgment will
be the final say on the matter, there are pres
-
ent takeaways for employers:
• A drug and alcohol policy should have pur-
poses beyond the mere stigmatization of
drug and alcohol use. ese purposes — ac-
cident prevention, absenteeism reduction,
and employee well-being — should be dis-
cussed in the policy and reflected in how the
policy operates and is applied.
• An employee's claim to be drug or alcohol
dependent does not automatically con
-
vert culpable conduct into non-culpable
conduct. An employer should review all
relevant circumstances before concluding
that the employee's misconduct was truly
disability-related.
For more information see:
• Stewart v. Elk Valley Coal Corp., 2015 Car-
swellAlta 1190 (Alta. C.A.).
CREDIT:
MUKHINA
VIKTORIIA/SHUTTERSTOCK
Canadian HR Reporter, a Thomson Reuters business 2016
May
11,
2016
|
Canadian
Employment
Law
Today
ABOUT THE AUTHOR
Stephen Shore
and Iouri Vorobiev
Stephen Shore and Iouri Vorobiev are lawyers with Sherrard Kuzz
LLP, a management-side labour and employment law firm in Toronto.
Stephen and Iouri can be reached at (416) 603-0700 (Main),
(416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com.
The employer's policy offered support for an employee with
a dependency issue on the condition of self-reporting. By
designing the policy in such a way, the onus was put back
on the employee to justify not disclosing a dependency
prior to an incident.
