Employee denied medical reasons for attendance issues
An arbitrator has upheld the dismissal of a New Brunswick worker who lost his driver’s licence because of a conviction for intoxicated driving.
Patrick Hogan was a service installation technician for Rogers Cable in Miramichi, N.B., installing cable services for the national cable, Internet and phone services provider. Hired in November 2007, Hogan worked in a service vehicle driving to where installation or maintenance at customer locations was required.
Hogan logged in every day with a mobile computer to see the work assigned to him and proceeded to the job sites. A typical day involved two jobs, and the mobile computer allowed him to check in with his status, just as “en route” to a job, “on site” or when a job was completed. Like the other service technicians, Hogan worked alone and was allowed to take the vehicle home after work. All service technicians and construction group employees were required to have a valid provincial driver’s licence.
Hogan had some problems reaching his objectives and sometimes his work had to be redone by others due to customer complaints. By 2010, his annual performance evaluation was unsatisfactory enough to have his pay increase held back. In a progress review for the first half of 2011, there was a slight improvement, but by the end of the year Hogan's performance regressed again.
Hogan also had attendance issues, which put pressure on other technicians who had to cover his assignments when he wasn’t working. On Jan. 25, 2012, Rogers gave Hogan a letter of concern regarding his absenteeism. There was no improvement, so a second letter of concern was given to him on March 22. Rogers gave Hogan an opportunity to use the employee assistance program (EAP), but Hogan declined. Rogers asked the EAP provider to contact Hogan to see if he had a medical condition that affected his attendance, but Hogan denied any such condition.
Hogan was suspended for two weeks on July 30, 2012, for failing to complete work he had been assigned and had signed off on, which was a “significant breach of policy.” On Sept. 4, Rogers gave Hogan a third letter of concern regarding his attendance and management met with him to discuss it.
On Nov. 30, 2013, Hogan was charged for driving while under the influence of alcohol. He was scheduled to work the next day, but didn’t report for duty. Hogan’s wife called Rogers to say Hogan’s licence had been suspended for three months, so Rogers put him on administrative leave without pay. The company indicated a valid driver’s licence was essential to his job duties as stated in his letter of employment.
Hogan’s hearing was on March 4, during which his driver’s licence was suspended for one year. He reported the decision to Rogers the next day.
Rogers management and human resources department considered Hogan’s disciplinary record and his poor performance review, which it felt didn’t warrant a leave of absence. Since he was unable to perform his job duties and Hogan hadn’t requested any accommodation, it was decided his employment would be terminated effective April 28, 2012.
Hogan and the union grieved the dismissal, arguing he had an addiction to alcohol that should have been accommodated Hogan by assigning him to other work that didn’t require a driver’s licence or give him a one-year leave of absence. Shortly before the hearing, the union provided a written medical report diagnosing Hogan with alcoholism and noting his desire to overcome it through treatment. The union also said Rogers had some knowledge of Hogan’s alcohol dependency as it had been brought forward in the grievance process in the month following his dismissal.
The arbitrator commented that the circumstances required a balancing of interests between Rogers’ need to maintain production and Hogan’s need to retain his employment. Hogan had less than eight years’ service with Rogers, which was riddled with poor attendance. Rogers gave Hogan notice that his attendance record was unacceptable and several opportunities to improve, but he didn’t. It also asked him if there were medical reasons for his poor attendance but Hogan said there wasn’t.
Ultimately, Rogers terminated Hogan’s employment because he couldn’t do his job. With the information the company had at the time, it was a reasonable decision and there was no discrimination because Rogers wasn’t aware of any addiction problem — particularly since Hogan said he didn’t drink on the job and he worked alone with little direct supervision, said the arbitrator.
“At no time did (Hogan) inform his employer that he had a drinking problem even though he admitted at the hearing having discussed the matter with his family doctor on numerous occasions,” said the arbitrator. “From a purely industrial relation perspective, it would be difficult to conclude that the decision of the employer was unreasonable.”
