Last-chance agreement important, but employer still has duty to accommodate to undue hardship
An Alberta court has rejected an appeal by Canadian Pacific Railway (CPR) of an arbitrator’s decision reinstating a worker fired under a last-chance agreement.
The worker was a leading track maintenance/BTMF operator for CPR in Moose Jaw, Sask. He was originally hired in 2008 as an extra gang labourer.
The worker was suspended in 2015 and 2017 for unauthorized absences and received a formal reprimand for working without a hard hat in 2017. He continued to have unauthorized absences in 2018 and 2019, ultimately leading to his dismissal on May 29, 2019.
CPR agreed to reinstate the worker to his position and entered into a conditional offer of reinstatement – essentially a last-chance agreement (LCA) – with the worker and the union. The LCA required the worker to undergo mandatory random substance testing for two years. Any positive test result, violation of CPR’s disciplinary process, or any other failure to comply with the LCA would result in removal of the worker from service.
The LCA also stipulated that if CPR conducted a fair and impartial investigation that determined the worker violated the LCA, it would be just cause for termination and an arbitrator could only determine if the worker failed to comply with the LCA and not substitute a lesser penalty if he did violate it.
Return to work
The worker passed a urine test on Sept. 19, 2019, and returned to work a month later on Oct. 24. He passed another urine test on Oct. 26.
However, the worker took a hair follicle test on Nov. 25 that came back positive for methamphetamines. He was removed from service while CPR investigated.
The worker acknowledged that he had a “slip” with the drug on Sept. 28 and advised that he had been seeing an addictions counsellor on a weekly basis. He had also been attending Narcotics Anonymous meetings regularly since his relapse and said he was motivated to rehabilitate himself.
However, CPR’s investigation determined that the worker violated the LCA and terminated his employment on March 10, 2020. The union grieved, arguing that the worker had a disability and was taking steps to deal with it. It contended that relapses were not uncommon and CPR violated its obligation to accommodate disabled employees by firing the worker.
The worker also presented the fact that he received a medallion for one year of sobriety from Narcotics Anonymous and had received treatment in the summer of 2020. In addition, his medical records showed no further relapses.
Accommodation of worker
CPR maintained that it had accommodated the worker more than once, by helping his participation in a structured relapse program in 2018 along with the reinstatement and LCA in 2019. Granting another LCA would render the first one meaningless, the company said.
The arbitrator found that the worker had taken significant steps to mitigate his addiction and had not relapsed since the positive hair follicle test. He found that further accommodation would not be undue hardship for CPR and ordered the company to reinstate the worker under the following terms:
- The worker had to abstain from alcohol and drugs
- The worker was subject to random drug and alcohol testing
- The worker must continue to participate in Narcotics Anonymous for two years
- If the worker failed a test or violated the conditions of his reinstatement, he would be subject to termination without arbitration unless the issue was whether he violated those conditions.
CPR applied to the Alberta Court of King’s Bench for judicial review of the decision on the ground that it was unreasonable. The company argued that the arbitrator misapprehended its duty to accommodate to the point of undue hardship and failed to defer to the LCA. It also argued that the terms of the reinstatement were the same or more onerous that the original LCA and didn’t consider workplace safety, human rights legislation, and the principles of accommodation.
CPR also said that the arbitrator didn’t consider the entire context of the matter, such as the fact that the worker’s relapse occurred two months before the positive hair follicle test and he hadn’t disclosed his relapse before then. The worker only sought treatment after the test result, not the relapse itself, said CPR.
No evidence of undue hardship
The court noted that in the arbitration, CPR did not present evidence supporting that continued employment of the worker would be undue hardship and instead if focused on the argument that the LCA was sufficient accommodation and ought to be upheld. The arbitrator focused on the latter argument and did not need to assess CPR’s prior accommodation attempts, said the court.
The court found that the arbitrator seriously considered the LCA specifically referenced other decisions indicating that deference is owed to LCAs with “stated consequences of a provable breach of the agreement’s terms” and employer interests should be protected. However, the court disagreed that the arbitrator’s decision was in error just because it didn’t enforce the LCA, finding that the arbitrator “clearly considered whether it was appropriate to do so in the circumstances before him.”
The court also noted that the worker was employed in a safety-sensitive position, but CPR didn’t raise that as an issue and did not address whether the worker could be accommodated in a non-safety-sensitive job. The arbitrator assessed the evidence and arguments and determined that CPR did not establish that it had accommodated the worker to the point of undue hardship, said the court.
Noting that human rights legislation recognizes substance dependency as a disability requiring accommodation, the court said that parties cannot contract out of their obligations under such legislation. The arbitrator’s decision that CPR did not accommodate the worker to the point of undue hardship fell within the range of reasonable and possible outcomes based on the facts of the case and the law applied, said the court in dismissing CPR’s appeal.
