Canadian Employment Law Today - sample

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Intoxicated, dishonest — and reinstated with full pay Employer ignored sunset clause in collective agreement and should have been aware employee had an addiction BY TODD HUMBER BREACHING a so-called "sunset clause" in a collective agreement is a quick way to ensure a termination won't stand up to an arbitrator's scrutiny. at's a lesson management at the Mont St. Joseph nursing home in Prince Albert, Sask., learned after it fired a continuing care assistant who showed up for her shift drunk. e arbitrators systematically tore apart the employer's logic for terminating Louise Storey, who began working for the home in May 2007 and was fired on June 19, 2014. But even if the employer had been justified in terminating Storey for cause, the case would have fallen apart because it ignored the sun- set clause — which stated discipline would only be held on record for two years. "In our view, the consequence of this breach is to render the termination null and void," they wrote in the Saskatchewan Arbi- tration Board ruling. On June 18, 2014, Storey was scheduled to work the night shift. She arrived 10 minutes late and, shortly after, one of the residents complained about her intoxication. A co- worker told a nurse Storey reeked of alcohol and the nurse called Lesley Larrea, the direc- tor of care, at home. Larrea then drove to the nursing home and spoke with Storey. Larrea said Storey smelled of alcohol, look tired, avoided eye contact, had slurred speech and relied on hand carts and a hand- rail while walking. She sent her home in a cab. e next day, Larrea called Storey in for a meeting to discuss the incident along with a union representative. Larrea apologized and claimed she had only one drink before work and had taken half a sleeping pill 12 hours prior to the shift. Larrea didn't believe her and thought the mismatched facts being presented amount- ed to gross misconduct. She read Storey a prepared termination letter, citing the fact she denied being intoxicated and that work- ing under the influence of drugs or alcohol is a serious safety issue. Interestingly, Larrea had also prepared a second letter — which outlined an unpaid suspension that required Storey to enrol in a treatment program and the accommodation that would be offered on her return to work. It was contingent on Storey offering an ex- planation — essentially admitting she had an addiction problem. Because she didn't make such an admission, Larrea fired her. Employee had history of incidents During the meeting, Larrea brought up sim- ilar situations that happened in the past — including instances from December 2007, May 2008 and February 2010. No question Storey had some issues in the past. A previous partner slashed her throat with a knife in an attempt to kill her. She had laser surgery on her vocal chords and it took three years before she could talk above a whisper. is brutal attack left her suffering from post-traumatic stress disorder (PTSD). In December 2007, she wasn't coping well and turned to drinking alcohol as a crutch. A letter that month from her employer dis- cussed an incident where she showed up late with a slurred voice, glazed eyes and breath that smelled of alcohol. A 2008 letter outlined how she had been late to work and upon arrival was "disorient- ed, sluggish and glassy-eyed." In February 2010, an employer letter stated she "arrived at work smelling of alco- hol, staggering gait, speech slurred and eyes glazed." She was suspended for three days and required to attend a treatment program for alcohol addiction. Storey attended a 28-day in-house pro- gram at the Metis Addictions Council of Saskatchewan as an outpatient in 2010 and an inpatient in 2011. Despite this, Larrea testified that though she knew of "similar type situations" from Storey's past, she was unaware she had an al- cohol addiction or had a medical health issue resulting from addiction. Shortly before the June 2014 incident, Sto- rey broached the topic of time off work. Her daughter was in an unhealthy relationship — her partner had broken her ribs. en her oldest grandson was arrested by the police. A counsellor she was seeing was concerned about escalating issues and recommended she take time off. Two days before she showed up to work drunk, she told Larrea she was seeing a counsellor who recommended she take some time off — but Storey didn't formally request it. She felt it wouldn't have been granted because they were short-staffed and she had been working a lot of overtime. At arbitration, the employer argued there was no expert medical evidence that Storey had an addiction to alcohol. She denied be- ing intoxicated when at work, or the follow- ing day, but later admitted she was drunk. She was dishonest, and it had no duty to ac- commodate such "alleged disability," it said. Even if there was a medical disability, the employer argued termination was not exces- sive. And if termination was indeed exces- sive, it argued there had been a complete loss of trust and the employment relationship DISCIPLINARY on page 7 » The supervisor was aware of 'similar-type situations' from the employee's past CREDIT: CSABA DELI/SHUTTERSTOCK

• Cover