Ontario worker with addictions reinstated with conditions

An Ontario arbitrator has reinstated a worker with drug and alcohol addictions who was fired for violating a settlement agreement from a previous termination.

The worker was employed with Hydro One, an electricity transmission and distribution utility serving Ontario, since 2008. The worker’s position was a safety-sensitive one and Hydro One had policies requiring employees to attend work without being impaired.

The worker was considered a satisfactory employee for many years without any significant discipline. However, in 2019 he started having problems with excessive absenteeism and often failed to follow Hydro One’s call-in procedure.

Hydro One terminated the worker’s employment on Jan. 10, 2019. The union filed a grievance claiming there wasn’t just cause, and shortly thereafter a medical assessment determined that the worker had a “severe cocaine use disorder with a concurrent alcohol use disorder.”

Hydro One reinstated the worker with a settlement agreement that required regular drug testing and abstinence from drugs and alcohol. He was also required to attend Alcoholics Anonymous (AA) meetings. A failure to meet all of these requirements would result in his termination a second time.

However, on Aug. 25, 2020, the worker tested positive for cocaine. Hydro One interviewed the worker, who acknowledged that he had consumed cocaine four days prior to the test. He also said that he had not been attending AA meetings since March. Hydro One determined that the worker’s breach of the reinstatement settlement irreparably damaged the employment relationship and terminated the worker’s employment on Oct. 6.

The union grieved the second termination, arguing there wasn’t just cause and the employer violated the worker’s human rights because his disorders were disabilities that were factors in his dismissal.

The worker underwent multiple drug tests following his termination and all were negative, except for a positive result for marijuana. He also started an outpatient treatment program.

The arbitrator acknowledged that the worker’s job was safety-sensitive and Hydro One had to rely on him coming to work “clean and sober,” or else there would be an “unreasonable risk.” However, there was also a duty for Hydro One to accommodate a disability to the point of undue hardship, and the worker “clearly suffers from a disability,” said the arbitrator.

The arbitrator found that there was a causal connection between the misconduct — using cocaine and reporting for work with the drug in his system — and the worker’s disability. The disability also created “a sufficient displacement of responsibility” due to the nature of the disorders, the arbitrator added.

The arbitrator also found that the worker was “perilously close to the undue hardship limit” for accommodation, but that limit hadn’t been reached, particularly considering that the worker made a “full and frank admission” to his problems and was making an effort to seek treatment.

The arbitrator determined that the worker should be given a suspension without pay to cover the time since his termination — to reflect the “serious breach of health and safety rules” and to “drive home the requirement of maintaining sobriety as a condition of continued employment with Hydro One” —followed by a reinstatement to his position with strict conditions:

• The worker had to complete the six-week outpatient program and provide proof of his attendance, successful completion, and a negative drug test before returning to work.
• The worker must completely abstain from alcohol and non-prescribed drugs indefinitely and avoid any misconduct involving alcohol, drugs, dishonesty, or safety violations.
• The worker must meet regularly with an addictions counsellor and attend three AA meetings per week while obtaining a sponsor.
• The worker must meet with his family doctor on a monthly basis and Hydro One could request a doctor’s certificate every six months confirming support and recommending ongoing treatment.
• The worker must agree to random drug and alcohol testing for at least two years.