Pre-work drink never a good idea (Legal View)

Car accident revealed level of impairment that would have made it unsafe to work
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 09/24/2013

A Saskatchewan company had just cause to fire an employee who had alcohol in his system following a car accident on the way to work, a labour adjudicator has ruled.

John Kish was a shift leader at an oilseed crush plant in Yorkton, Sask., operated by LDM Yorkton. He had nine employees reporting to him at the plant, which featured large equipment and high-pressure steam to extract oil from canola seeds. In addition, the seeds were heated with an explosive solvent and the plant featured a high-pressure boiler and ammonia chilling site.

All of these elements created a work environment with potential danger and required a strong focus on safety.

That focus included a drug and alcohol policy that stipulated “an employee who is found to be under the influence on the job will be disciplined and may be dismissed for just cause without notice, pay in lieu of notice, severance, continued health-care coverage or any indemnity being provided whatsoever.”

The policy also said employees in safety-sensitive positions who had addictions to alcohol or drugs that could lead to on-duty impairment had a duty to inform the company so it could take steps to help the employee deal with the addiction and ensure safety at the workplace.

Kish was given a copy of the manual containing this policy when he joined the company in 2009.

LDM Yorkton’s safety efforts also included an annual safety training day that all employees had to attend, along with weekly meetings of management to review safety performance and daily staff meetings to review safety and the previous day’s production.

All shift leaders, including Kish, were required to discuss safety with their crew prior to the start of their shifts.

Tired employee had drink before leaving for work

Kish was scheduled to work an evening shift on Feb. 25, 2012, during which he would be the acting plant manager. The night before, he didn’t get much sleep because he had a young child who was teething and was up most of the night. When he woke up before his shift, he decided to have a glass of hard liquor. He claims he had one drink but didn’t measure the amount.

On his way to work, Kish’s car went off the highway into a ditch, but he wasn’t injured. When police arrived, they detected alcohol on his breath. Kish said he had had only one drink but nothing to eat that day.

He gave a breath sample and his reading was 0.045 mg per 100 ml which was below the legal limit but within the range — 0.04 to 0.08 — to suspend his driver’s licence for 24 hours.

That level of alcohol was known to cause some level of impairment for operating vehicles or heavy machinery, according to the police. The test was taken about 20 to 25 minutes before the scheduled start of Kish’s shift at the plant.

Kish contacted LDM Yorkton and said he didn’t have a car and was uncertain if he could make it to work that evening. The company made alternate arrangements to cover for him, with some additional expense.

Kish met with the facility manager on Feb. 27 to discuss his absence. Kish denied having an alcohol problem and another meeting was scheduled on March 12 upon his return to work after a scheduled vacation.

Kish came back a little earlier than expected and the meeting with the facility manager took place with the operations administrator also attending.

They told Kish he had put others who reported to him at risk by attempting to come to work with a certain level of impairment from alcohol and his employment was being terminated.

He was offered a severance package of four weeks’ pay and told he would have seven days to make a decision before signing the termination letter and release.

Kish was surprised because he expected a suspension or some other discipline, but he took a few minutes to read the letter and release right then, saying it was his mistake, and then signed it.

But later, Kish filed a Canada Labour Code complaint for unjust dismissal. He acknowledged that when he drove to the plant that day, he didn’t appreciate the extent of his impairment and it would have been inappropriate for him work.

Once he realized it after the breath test, he called in to say he couldn’t make it, but not because his licence was suspended, he said.

He claimed he wasn’t treated fairly under the company’s drug and alcohol policy — dismissal was excessive when he should have been offered support and counselling for addiction, particularly since he had a good safety record.

The adjudicator noted Kish could not have known the potential remedies available to him without independent legal advice.

Though LDM Yorkton explained he had seven days to go over the severance agreement and Kish willingly signed it, his consent was uninformed.

“Employers should be mindful that the uninformed signing of a settlement agreement or release by an employee involving the surrender of legal rights of which he/she is not aware may not be accepted as final and binding upon the employee,” said the adjudicator.

Seriousness of misconduct

However, LDM Yorkton had a written drug and alcohol policy — of which Kish and other employees were aware — that stated employees who are found to be impaired at work would be disciplined and possibly dismissed.

Kish was in a safety-sensitive position around heavy machinery and dangerous chemicals and supervised crew working around them. Consuming alcohol right before his shift was “a serious safety violation, potentially jeopardizing the safety of himself, his crew and the plant,” said the adjudicator.

And Kish’s argument that he didn’t appreciate his impairment until the breathalyzer test was contradicted by an email to a co-worker on the earlier shift, said the arbitrator, which said he fell asleep at the wheel and had “a couple of drinks before work. Not good.”

Though Kish was “sincerely remorseful,” found the adjudicator, it was “difficult to rationally explain his actions and thereby gauge the risk to reoffend,” particularly since he denied to his employer that he had an alcohol problem.

Ultimately, LDM Yorkton had just cause to terminate Kish’s employment because of his serious safety policy violation.

“In the absence of some rational explanation which could reasonably lead me to conclude that this type of act is not likely to be repeated, I am left to conclude that Mr. Kish either intentionally or very recklessly made the decision to consume alcohol immediately prior to attending work,” said the adjudicator.

For more information see:

Kish and LDM Yorkton Corp., Re, 2013 CarswellNat 2895 (Canada Labour Code Adj.)

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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