Canadian Employment Law Today

October 25, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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First relapse Letwin revealed that he had last used drugs the previous Friday — it was Tues- day at that point — and that he was "in better control" of his drugs since taking a prescribed drug. He later told the man- ager of OHS that he had used the previous Sunday. He said he had been using only on weekends and wasn't under the influ- ence that day, but called in sick the day before because he was. Letwin's supervisor drove him home after the test, during which time he told the super- visor he was using drugs again and he was "all strung out." e test came back negative for alcohol, but non-negative for cocaine. Enbridge terminated Letwin's employment on Nov. 8 for violating its drug and alcohol policy, not complying with company-man - dated conditions of employment, and failing to be honest with his supervisor and health care manager. e company noted that af- tercare related to his pervious rehabilitation program was still available to him. e union grieved the dismissal, arguing a single episode of relapse wasn't uncommon for drug addicts and Enbridge was still obli - gated to accommodate Letwin and his dis- ability further. It later pointed to the fact that following his termination, Letwin stopped using drugs and attended another rehabilita- tion program in April 2013. He then found a sponsor and started attending meetings five days a week, married a supportive partner with whom he had two children. He also took frequent drug tests through his family doctor, all of which he passed. e arbitrator noted that while Letwin had received a letter indicating Enbridge wouldn't pay for any more treatment and he would be terminated if found to be under the influence of drugs or alcohol, there were no elements typical of a last chance agreement in the cir - cumstances related to his dismissal. Letwin had no discipline on his record before his termination and there was no misconduct to which Enbridge responded or issued a warn - ing — he had been given "no chances," said the arbitrator. e arbitrator found that Enbridge initially became aware of Letwin's addiction when he asked for help, which the company provided. ere were no issues with absenteeism or misconduct when Letwin returned to work until he suffered his relapse. e arbitrator found that while Enbridge paid a significant amount for Letwin's reha - bilitation, it came after Letwin asked for help and not after "months or years of dealing with an employee who failed to show up, who was absent a lot, or otherwise creating workplace problems." Letwin had caused no problems prior to his request, so a single relapse — which wasn't uncommon for addicts — didn't bring Enbridge to the point of undue hardship without further attempts to accommodate him, the arbitrator said, especially since there were no issues between Letwin's return and his relapse. e arbitrator recognized Enbridge's con - cerns over safety at its workplace and the fact Letwin lied about his recovery and relapse and the fact that the company "demonstrat- ed genuine caring" for his initial treatment. However, this wasn't enough to prove undue hardship to the arbitrator. "To be blunt, Enbridge has not tolerated a single relapse," the arbitrator said. "Having re- gard to the case law and the well-recognized reality that addicts regularly relapse, failure to tolerate a single relapse does not meet the test of accommodating Mr. Letwin's disability to the point of undue hardship." e arbitrator also noted to the union's evidence that post-termination, Letwin had changed his life and was pursuing follow-up care. is made it more likely in the arbitra - tor's eyes that Letwin could successfully come back to work and avoid another relapse. Enbridge was ordered to reinstate Le- twin with no loss of seniority but no com- pensation for time since his dismissal, along with a 10-day suspension put on his record. e arbitrator also ordered Le- twin to follow certain conditions for the rest of his employment with Enbridge: • Full compliance with treatment and recom- mendations from his most recent treatment facility • Complete abstinence from alcohol and drugs • Random urine drug testing • Regular attendance at 12-step meetings • Regular contact with a sponsor • Regular treatment and monitoring relating to his addiction. For more information see: • Enbridge Gas Distribution Inc. and Unifor, Local 975 (Letwin), Re, 2016 CarswellOnt 14973 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2017 October 25, 2017 | Canadian Employment Law Today CREDIT: ROBTEK/SHUTTERSTOCK

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