The grievor’s absenteeism, repeated relapses and failure to avail himself of opportunities for rehabilitation left him a poor candidate for improvement. The arbitrator found that the company had completely fulfilled its obligation to accommodate him.
Following numerous failed attempts to rehabilitate himself, a mill worker with addiction problems was fired when he could not meet the company’s attendance expectations.
R.K. worked as a material handler at flour mill. He was hired in 2002. About 95 people worked shifts at the mill, which was a substantially mechanized, highly automated environment that would present a danger to a worker who was not fully alert.
R.K. received some unspecified treatment from a psychiatrist in 2001.
In November 2006, R.K. consulted the same psychiatrist. He reported then he was drinking excessively and using marijuana, ecstasy and cocaine on a regular basis. R.K. also reported mental health problems, which were described by the psychiatrist as a major depressive illness with mild psychotic symptoms.
R.K. was told to abstain from drugs and alcohol. He was referred to a counselling centre. R.K. did not seek treatment. About 16 months later, R.K. was hospitalized for major depression and alcohol abuse. At that point, he was advised by his psychiatrist to stay off work for three months beginning March 2008.
However, in April, R.K. returned to work with a doctor’s note recommending that he be reassigned to straight days. This request was accommodated.
Warned about attendance
By July 2008, R.K. was drinking again and using crack cocaine. On July 30 he was given an oral warning from the employer concerning his poor attendance. R.K. missed the very next day.
On Sept. 1, 2008, R.K. admitted to the employer that he had a problem with addiction. The employer queried R.K. about his addiction and offered to accommodate him.
R.K. began a four-week residential treatment program at the end of October 2008. The employer accommodated R.K.’s return to work in December, providing him with a regular day shift job in the cleaning department.
R.K. was able to maintain acceptable attendance until he relapsed about one year later, when he reported to his psychiatrist that he was using cocaine, heroin and alcohol and gambling on foreign exchange to pay for his habits.
With a note from his doctor, R.K. was granted two months’ leave by the employer. R.K. was referred again to counselling for his addictions. Again, R.K. did not go.
On Feb. 4, 2010, R.K. was issued a warning letter by the employer concerning his continuing problems with absenteeism. R.K. was advised he must provide a physician’s note to substantiate any further absences.
There were further absences. R.K. called in four days later to say he would not be at work. He made a similar call the next day. A suspension followed and then a grievance, and then a settlement that acknowledged R.K.’s disability. The settlement attempted to provide incentives for R.K. to improve his attendance and required him to attend all counselling programs recommended by his doctor.
R.K. undertook counselling and maintained acceptable attendance until he relapsed again three months later.
Attended work under the influence
On June 29, 2010, R.K. was awarded a five-day suspension for attending work under the influence of drugs. He was told his attendance was unacceptable and he was being given a final warning.
On July 8, R.K. called work to say he would not be in that day and he was scheduled to begin “rehab” in August. He said he would bring in a note from his doctor later that day. R.K. failed to show up with the note.
R.K. was fired. The union grieved.
The employer acknowledged R.K.’s disability. The employer noted that it had accommodated R.K. on numerous occasions over a long period of time. Further accommodations would be undue hardship.
The union argued R.K. should be accommodated further and that post discharge evidence showed R.K. was now committed to his rehabilitation.
The termination was warranted, the Arbitrator said.
“[A] finding of undue hardship will be found and a discharge will be upheld when an employee has failed to respond to multiple rehabilitation efforts and there is no objective evidence to support a finding that further efforts of accommodation would succeed.”
That was the case here. R.K. had a history of absenteeism and he had been put on notice that it would no longer be tolerated.
Accommodated more than once
“There is no dispute that [R.K.] suffers from a disability. The grievor has mental health issues and addictions to drugs and alcohol. It is well accepted that addictions are disabilities that require accommodation. It is also well established that employees with addictions are prone to relapse and may need to be accommodated more than once.”
R.K. was. The Arbitrator counted six separate accommodations the employer made for R.K. over the two-year period between 2008 and 2010.
For his part, R.K. did not live up to his obligations. He ignored treatment recommendations, he failed to attend Alcoholics Anonymous meetings as required and he misled his doctors about his drug and alcohol use.
“I find that the Employer made reasonable efforts to accommodate the grievor prior to his discharge. Despite these efforts, the grievor was unable to fulfill his duty to attend work regularly,” the Arbitrator said.
The safety of other workers and the employer’s statutory obligation to provide a safe workplace were also legitimate considerations.
Post discharge evidence was not helpful to R.K. as the Arbitrator found that it supported the conclusion that discharge was appropriate.
The grievance was dismissed.
