Worker with addiction and anxiety issues was on second last chance agreement
This edition of You Make the Call features a worker who was terminated for violating a last chance agreement.
Martin Friesen was a machine operator with New Flyer Industries, a bus manufacturing company in Winnipeg. He was hired in January 1996.
Over the years, Friesen had attendance issues at work, leading to several instances of discipline and the accumulation of demerit points under New Flyer’s disciplinary system. On Aug. 1, 2012, he was assessed demerit points for failing to call into work to report an absence twice in a three-month period. The points put him over the limit established for termination of employment.
Friesen attended a four-week intensive rehabilitation program in August and September 2012. After he successfully completed the program, New Flyer agreed to reinstate him to his machine operator position on a last chance agreement, effective Oct. 9, 2012.
Two months later, on Dec. 10, Friesen failed an alcohol test. New Flyer felt this was a violation of the last chance agreement, but after Friesen attended another rehabilitation program, the union requested the company consider another last chance agreement.
A second last chance agreement was hammered out based on conditions set by the rehab organization and New Flyer’s concerns. The agreement stipulated that Friesen was required to participate — and verify his attendance — in aftercare programs, as well as bi-weekly alcohol and drug tests.
On April 15, 2013, Friesen didn’t report for work. He also failed to show up the rest of the week. On April 22, he provided a medical note dated April 16. However, New Flyer suspended him and, on April 26, terminated his employment for violating the second last chance agreement.
Friesen and the union challenged the termination, arguing it was excessive discipline and New Flyer should have accommodated his disability of alcoholism, of which the company was well aware. Friesen claimed at the time of signing the last chance agreement, he asked to go into a more intensive treatment program, but New Flyer denied him. He explained his condition caused him to miss certain days and he didn’t call into work because he was depressed and didn’t want to do anything — in addition to alcoholism, he suffered from anxiety and was on antidepressants.
He also said proper accommodation, combined with his already successful completion of rehabilitation programs, would keep the employment relationship viable, since he was regularly attending AA meetings and the rehab organization testified to his desire to deal with his problem.
New Flyer argued that it couldn’t risk having Friesen work as a machine operator while impaired — the safety concerns were too great. The company maintained it had accommodated Friesen for 10 years with two rehab programs without success and further employing him would constitute undue hardship and the second last chance agreement had input from the rehab organization. All it was concerned with was the conditions of the agreement, and Friesen violated them, the company argued.
You Make the call
Was termination appropriate in the circumstances?
OR
Should the company have further accommodated Friesen’s alcoholism?
If you said New Flyer should have further accommodated Friesen, you’re right. The arbitrator noted the challenge of deciding between the validity of a last chance agreement and an employee’s disability because of alcohol addiction. Also, the arbitrator found New Flyer’s conduct in allowing Friesen treatment and reinstating him after breaching the first last chance agreement was “beyond reproach” and the final last chance agreement was reasonable and fair.
However, the arbitrator found further accommodation did not constitute undue hardship for New Flyer and there was a good chance of a successful return to the workplace for Friesen. Friesen came across as someone who “is genuinely trying to come to grips with his problem and making a very sincere effort to remain alcohol-free,” said the arbitrator.
The arbitrator found Friesen’s efforts in rehab programs and desire to undergo intensive treatment demonstrated his commitment to getting better and the likelihood that he would be able to perform his job again.
The arbitrator ordered New Flyer to reinstate Friesen to his machine operator position, but without back pay, letting the time since his dismissal to serve as a suspension. However, the arbitrator stressed there would still have to be conditions accompanying the reinstatement: Friesen must completely abstain from alcohol and drugs, continue to attend AA meetings, receive regular treatment for his depression, live at his current address or a group facility, and be subject to random testing at work. Any positive test, or any absences or misconduct related to alcohol, would result in “immediate discharge,” said the arbitrator.
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