The grievor had violated his last chance agreement and been terminated. The union argued that this constituted a failure to accommodate him. The arbitrator ruled that last chance agreements were bona fide occupational requirements and deserved deferrence.
A worker with a history of substance abuse problems was terminated when he failed to comply with his last chance agreement. The union grieved, arguing that the termination violated the employer’s duty to accommodate the worker’s disability to the point of undue hardship.
J.D. was a heavy equipment operator employed by a municipality. He had about 21 years of service when he was terminated on April 1, 2011. J.D. had problems with substance abuse. The employer intervened a number of times over the course of his employment with the city to help J.D. with his addictions.
J.D. was fired on July 9, 2010. The union grieved and he was reinstated under the terms of a last chance agreement that was signed on Dec. 1, 2010.
However, before he could return to work, J.D. was required to comply with the terms of the last chance agreement.
J.D. was to provide relevant documentation to the employer regarding his medical condition and the status of his driver’s license. He was also required to provide a current Police Records Check.
As it was known when the last chance agreement was being negotiated that J.D. had left a residential substance abuse treatment program early, the agreement specified he was to provide certification from the facility that he had successfully completed the program.
Left rehab early
The agreement said he was to provide proof he had not left the program voluntarily, or without the consent or authorization of the facility.
J.D. initially reported that he was asked to leave the program early because he had done particularly well and because there were other patients waiting who needed the space more.
In fact, J.D. was ejected from the program three days early for possession of a knife, smoking in his room and sexual harassment of female residents.
J.D. was fired. The employer said J.D. did not successfully complete the program as required by the last chance agreement.
The union challenged the employer’s application of the agreement. J.D. did not leave the program voluntarily. Nor did he leave it without the authorization or consent of the program administrators. Neither had he relapsed.
The fact J.D. had left the program early was not news. That was known when the last chance agreement was negotiated. The thrust of that provision of the agreement, the union argued, was to allow for J.D.’s termination in the event he left the program because of a relapse. That didn’t happen.
The Arbitrator acknowledged that the agreement did not contemplate a circumstance where J.D. would be asked to leave the program because of misconduct.
It was true he did not leave voluntarily or without consent but neither could his participation in the program be characterized as either “successful” or “complete” as required by the agreement, the Arbitrator said.
This was a violation of the agreement. J.D. also breached the requirement that he provide the employer with timely access to his medical records. However, failure to comply with one provision of the agreement was sufficient to justify his termination, the Arbitrator said.
Last chance agreements set out BFORs
The union also argued the last chance agreement could be viewed as an accommodation plan and the employer had failed to accommodate J.D. up to the point of undue hardship.
The Arbitrator disagreed.
“I share the employer’s view that last chance agreements may be viewed as agreements between parties setting out bona fide occupational requirements with respect to the grievor’s employment.”
The terms and conditions of the agreement were not unreasonable, the Arbitrator said.
“[T]he parties have agreed that, given the grievor’s history and workplace issues, the conditions were appropriate to his circumstances. Further, the mere existence of a disability does not relieve an employee of other employment obligations. The conditions violated by the grievor are not conditions related to the accommodation of any disability. They are conditions related to issues of the trust that is at the heart of the employment relationship… In my view, it is not inappropriate, nor does it offend the Human Rights Code, for the parties to agree that the grievor must take certain steps in order to re-establish the trust relationship with the employer. His failure to do so does not constitute a breach of the employer’s duty to accommodate.”
The Arbitrator also highlighted the importance and utility of last chance agreements.
“If arbitrators were to disregard the terms of such agreements, there would be harm done to the viability of all such agreements, including those that do not raise human rights issues, since employers would be less willing to sign ‘last chance’ agreements that may not be enforceable. Unions and employees would be placed in the position of proceeding with difficult cases where a last chance option is not available. There is labour relations value in last chance agreements in the labour relations community at large, and in the specific bargaining relationship involved with the instant agreement.”
The provisions of the last chance agreement did not violate the Code, the Arbitrator said.
The grievance was dismissed.
