Canadian Employment Law Today

to work plan made the employment relation- ship untenable. e worker grieved the dismissal, claim- ing Seaspan contributed to his latest relapse by sending him to Fort McMurray without the support needed to continue his recovery. He said he suffered from depression since his latest relapse and the company failed in its duty to accommodate him. e arbitrator noted that the worker never appeared to have worked for Seaspan while impaired, but the doctor testified that the use of crack cocaine for a long period of time affects the brain, resulting in a loss of inhibition and increased risk of relapses. e worker seemed determined to turn his life around and beat his addictions through seeking treatment, notifying his employer of relapses, and agreeing to last chance and monitoring agreements, but his numerous relapses were reason for concern that he would have things under control enough to work in a safety sensitive position. Additional cause for concern was the worker's tendency to lie when he was in re - lapse, as is common for addicts, said the ar- bitrator. is made it difficult to rely on his accounts in many circumstances, particu- larly when he said he abstained completely while in Fort McMurray, and when he told his monitor he was participating in recovery programs after his return. e fact that the worker was employed in an extremely safety sensitive position where the safety of other employees and the public was at risk was another concern. And the ar - bitrator pointed out that Seaspan had already made reasonable attempts to accommodate him, allowing time off work and supporting the worker's rehabilitation treatments after each relapse — including the "gold standard" in Toronto. Yet it still "has had to endure on - going failures," the arbitrator said. e arbitrator also found Seaspan had reached a point where it could no longer ac- commodate the worker, since there was no indication he would be able to recover to the point where he could be truly trusted in his job. Even the therapist monitoring him gave up trying to keep tabs on him and the doc - tor indicated the worker was resistant to treatment, and attempts to contact him and discuss what to do after his last relapse were largely unsuccessful . In the end, the worker breached his last chance agreement — which he understood as necessary to follow in or - der to keep his job — and there was no evi- dence any further treatment would change the worker's recovery prospects. ough the worker sought help for his ad- diction and was once again being monitored following his dismissal from Seaspan, the arbitrator found it didn't mean much given his past relapses. In addition, evidence was presented that showed the worker was hired for another job and later lost it for excessive absenteeism, which didn't inspire confidence that anything would change if he was back with Seaspan. e arbitrator determined that Seaspan simply could not consider other alternatives for accommodation and it would be undue hardship to continue the employment rela - tionship. "When one takes into consideration the numerous treatments the (worker) has re- ceived over the years prior to and during his employment, the many times he has been granted time off by Seaspan to receive treat- ment, his loss of other employment in the industry, his frequent relapses, his missing work from November to December 2012 and his repeated refusal at that time to meet with (his monitor and doctor) on six separate occasions, it cannot be concluded that Seas - pan's decision to terminate (the worker) was unreasonable or in violation of human rights legislation," the arbitrator said in dismissing the grievance. For more information see: •Seaspan ULC and CMSG (Westmoreland), Re, 2016 CarswellNat 5098 (Can. Arb.). Canadian HR Reporter, a Thomson Reuters business 2016 November 23, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. CREDIT: ALAN SMILLIE/SHUTTERSTOCK

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