Employer ignored sunset clause in collective agreement and should have been aware employee had an addiction
Breaching a so-called “sunset clause” in a collective agreement is a quick way to ensure a termination won’t stand up to an arbitrator’s scrutiny.
That’s a lesson management at the Mont St. Joseph nursing home in Prince Albert, Sask., learned after it fired a continuing care assistant who showed up for her shift drunk.
The arbitrators systematically tore apart the employer’s logic for terminating Louise Storey, who began working for the home in May 2007 and was fired on June 19, 2014. But even if the employer had been justified in terminating Storey for cause, the case would have fallen apart because it ignored the sunset clause — which stated discipline would only be held on record for two years.
“In our view, the consequence of this breach is to render the termination null and void,” they wrote in the Saskatchewan Arbitration Board ruling.
On June 18, 2014, Storey was scheduled to work the night shift. She arrived 10 minutes late and, shortly after, one of the residents complained about her intoxication. A co-worker told a nurse Storey reeked of alcohol and the nurse called Lesley Larrea, the director of care, at home. Larrea then drove to the nursing home and spoke with Storey.
Larrea said Storey smelled of alcohol, look tired, avoided eye contact, had slurred speech and relied on hand carts and a handrail while walking. She sent her home in a cab.
The next day, Larrea called Storey in for a meeting to discuss the incident along with a union representative. Larrea apologized and claimed she had only one drink before work and had taken half a sleeping pill 12 hours prior to the shift.
Larrea didn’t believe her and thought the mismatched facts being presented amounted to gross misconduct. She read Storey a prepared termination letter, citing the fact she denied being intoxicated and that working under the influence of drugs or alcohol is a serious safety issue.
Interestingly, Larrea had also prepared a second letter — which outlined an unpaid suspension that required Storey to enrol in a treatment program and the accommodation that would be offered on her return to work. It was contingent on Storey offering an explanation — essentially admitting she had an addiction problem. Because she didn’t make such an admission, Larrea fired her.
Employee had history of incidents
During the meeting, Larrea brought up similar situations that happened in the past — including instances from December 2007, May 2008 and February 2010.
No question Storey had some issues in the past. A previous partner slashed her throat with a knife in an attempt to kill her. She had laser surgery on her vocal chords and it took three years before she could talk above a whisper. This brutal attack left her suffering from post-traumatic stress disorder (PTSD).
In December 2007, she wasn’t coping well and turned to drinking alcohol as a crutch. A letter that month from her employer discussed an incident where she showed up late with a slurred voice, glazed eyes and breath that smelled of alcohol.
A 2008 letter outlined how she had been late to work and upon arrival was “disoriented, sluggish and glassy-eyed.”
In February 2010, an employer letter stated she “arrived at work smelling of alcohol, staggering gait, speech slurred and eyes glazed.” She was suspended for three days and required to attend a treatment program for alcohol addiction.
Storey attended a 28-day in-house program at the Metis Addictions Council of Saskatchewan as an outpatient in 2010 and an inpatient in 2011.
Despite this, Larrea testified that though she knew of “similar type situations” from Storey’s past, she was unaware she had an alcohol addiction or had a medical health issue resulting from addiction.
Shortly before the June 2014 incident, Storey broached the topic of time off work. Her daughter was in an unhealthy relationship — her partner had broken her ribs. Then her oldest grandson was arrested by the police. A counsellor she was seeing was concerned about escalating issues and recommended she take time off.
Two days before she showed up to work drunk, she told Larrea she was seeing a counsellor who recommended she take some time off — but Storey didn’t formally request it. She felt it wouldn’t have been granted because they were short-staffed and she had been working a lot of overtime.
At arbitration, the employer argued there was no expert medical evidence that Storey had an addiction to alcohol. She denied being intoxicated when at work, or the following day, but later admitted she was drunk. She was dishonest, and it had no duty to accommodate such “alleged disability,” it said.
Even if there was a medical disability, the employer argued termination was not excessive. And if termination was indeed excessive, it argued there had been a complete loss of trust and the employment relationship was no longer viable.
And if the arbitrator felt reinstatement was justified, the employer said it should be conditional on random alcohol and drug tests; remaining clean from substances; completely abstaining from alcohol and drugs; in-patient treatment; weekly Alcoholics Anonymous counselling for two to three years; and a last chance agreement that provided for termination if any of the above conditions were violated.
The arbitrators disagreed on all almost all points.
Not disciplining a health-care worker who showed up late and intoxicated would be a “rare circumstance indeed,” they wrote. But in finding her conduct non-culpable and undeserving of any discipline, that’s exactly what the arbitration board did.
It found ample evidence of an alcohol addiction and, even though Larrea wasn’t involved with the employer’s letters in 2007 to 2010, it said it was “inconceivable that she did not know (Storey) was addicted to alcohol and had a disability.”
It found it ironic Larrea was aware of the previous incidents because the employer breached the sunset clause that should have expunged the pre-2011 events from its files.
“The notes from the investigation meetings and the termination letter plainly reveal the influence of the aged records and discipline regarding intoxication, which had an alcohol problem at its core,” it wrote.
It chastised the employer for not delivering the second discipline letter — which called for an unpaid suspension and for her to enter a treatment program.
“What makes us shake our heads is that Ms. Larrea knew (Storey) was intoxicated (or, at least, under the influence of alcohol) on June 18, and (Storey’s) denial was implausible. What more would a reasonable employer need to trigger the accommodation set out in the letter that was not delivered?”
The employer shouldn’t have waited for an official time-off request. Broaching the subject with her employer was a “cry for help that fell on deaf ears.” Had more empathy been shown, given the worker’s history, the June 18 incident could have been avoided.
It also took the employer to task for accommodating Storey in the past when she was a more junior employee, but turning immediately to termination for a similar offence when she had more seniority.
It ordered Storey reinstated with full back pay, seniority and benefits. The only condition attached was for her to attend an accredited treatment program “to the extent reasonably determined to be necessary from time to time.”
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