Employer did not reach point of undue hardship: Arbitrator
The Canadian Union of Public Employees Local 1252 filed two grievances against FacilicorpNB after an employee — referred to only as J.R. — was fired for incidents stemming from his alcohol abuse.
The union grieved a 30-day suspension as well as J.R.’s termination, seeking reinstatement with full redress.
The suspension stemmed from an incident on Nov. 27, 2013, when J.R. was sent home from work after his manager detected the smell of alcohol after coming in contact with him. On April 17, 2014, J.R. arrived late to work red- faced and smelling of alcohol. He disappeared periodically and appeared to become more intoxicated as the day wore on. After lunch, J.R. was again sent home and suspended without pay pending an investigation. Ultimately the employer made the decision to terminate him.
J.R. acknowledged he had had issues with alcohol but testified he never consumed alcohol while at work. He did admit, however, to suffering from a hangover while at work as a result of alcohol consumption the previous evening.
Previous discipline against J.R. included a verbal warning for arriving late to work with an apparent "smell of alcohol," a two-day suspension without pay for abandoning his shift and insubordination, a five-day suspension without pay for arguing with fellow employees while apparently "drunk," and multiple letters of warning regarding his use of sick leave. According to the employer, J.R. typically took sick days on Mondays and after vacation days, a pattern the employer found troubling.
The employer argued J.R. had ample opportunities to disclose his alcohol abuse but did not do so. The employer consistently reminded J.R. of its Employee and Family Assistance Plan during meetings to address his behaviour.
The employer further argued J.R.’s alcohol use impacted his work performance and the work performance of his coworkers, as fellow employees were called on to skip breaks and work longer hours to complete the work J.R. was not completing.
While it acknowledged alcoholism as a disability, the employer said its duty to accommodate does not insulate an employee from sanction for misconduct. J.R. consistently arrived at work under the influence of alcohol and was repeatedly dishonest in his use of sick leave.
The union, however, argued that redness of the face and the smell of alcohol are all open to subjective interpretation and not evidence of impairment while at work.
The union argued dismissal was excessive, saying J.R. should be reinstated to his employment subject to appropriate conditions.
Arbitrator John. P. McEvoy agreed that J.R.’s conduct on Nov. 27, 2013, and on April 17, 2014, constituted just cause for disciplinary action by the employer. However, he found dismissal to be excessive, saying he was not satisfied the employer had approached the point of undue hardship in its accommodation of J.R.’s alcohol-related disability.
While the grievance relating to the 30-day suspension was dismissed, the grievance relating to J.R.’s termination was upheld in part.
McEvoy ruled the dismissal be substituted with a 30-day suspension without pay followed by an unpaid leave during which J.R. could complete a detox/rehabilitation program. Further return to work was subject to a last chance agreement to be negotiated by the parties, and if J.R. did not successfully complete the detox/rehabilitation program, his grievance would stand dismissed.
Reference: FacilicorpNB and the Canadian Union of Public Employees (CUPE) Local 1252. John P. McEvoy — arbitrator. Andrea Folster for the employer, Ralph McBride for the union. Aug. 15, 2015.
