After crashing a vehicle owned by the employer, the grievor was charged with impaired driving and fired from his job. The arbitrator found that he was an alcoholic who was taking steps to deal with his condition. He found that reinstatement was a proper accommodation for his disability.
A municipal worker was fired after being charged and convicted with impaired driving following an after hours crash of a city vehicle.
Hired by the municipality in 1988, J.F. worked in a customer service position as a Water Distribution Operator. He used a city vehicle for work during the course of his regular 7:00 am to 3:00 pm day shift. On occasions when he worked scheduled overtime, he was allowed to take the van home.
Scheduled for a 4:30 am start on June 1, 2010, J.F. took the van home at the end of his shift on May 31.
On the way home, J.F. stopped at a rental property he owned to meet with new tenants. They began drinking, consuming at least 16 bottles of beer and 40 ounces of brandy.
Wrong way on the highway
At about 6:45 pm, J.F.’s vehicle was observed driving erratically on the wrong ramp to a parkway. He arrived on the ramp after driving the wrong way on a major, divided highway.
J.F. crashed his van into the back of a truck on the ramp. He twice tried to restart the vehicle after the crash. He then attempted to exit the vehicle but fell out of the driver’s door. The accident caused about $9,000 damage. J.F.’s blood alcohol count was measured at 0.250 — more than three times the legal limit.
J.F. was charged with impaired driving. He was convicted and sentenced to a $1,500 fine and banned from driving for one year.
On June 11, he was fired.
The employer argued the gravity of the incident outweighed any mitigating circumstances and that the termination should stand. It was only blind luck no one was killed or seriously injured. J.F. violated city policy when he made a conscious and irresponsible decision to begin drinking when he was in care and control of a city vehicle. He compounded that mistake by operating the vehicle after he was impaired.
The union acknowledged the seriousness of the incident. However, J.F. had come to recognize his problem with alcoholism and had taken all the necessary and appropriate steps to manage the problem. He had made sincere apologies. He had abstained from alcohol since the accident and was receiving treatment. Given the circumstances, and his 22 years of service, J.F. deserved a second chance, the union said. J.F.’s alcoholism was a disability under the terms of the Human Rights Code and he was entitled to accommodation up the point of undue hardship.
Reinstatement appropriate
Conditional reinstatement was appropriate, the Arbitrator said, pointing out that J.F.’s case shared a number of the characteristics common to cases where employees have been reinstated following serious drug or alcohol-related misconduct.
These include:
• a claim of addiction disability and a demonstrable causal connection between the misconduct and the disability;
• a failure by the employer to properly consider the possibility of an addiction disability and employer obligations under the Code;
• a degree of candour and co-operation by the employee during the employer investigation;
• a reasonable basis for believing in the worker’s potential to abstain in future;
• a sincere apology;
• a demonstrated effort by the worker to take responsibility and take the steps necessary to deal with his or her addiction; and,
• a reasonable prospect for successfully and safely reintegrating the worker back into the workplace.
The main basis for firing J.F. was his violation of city policy with respect to the use of city vehicles and the decision he made to begin drinking when he was in control of a city vehicle. This was “classic alcoholic behaviour,” the Arbitrator said that demonstrated a nexus between J.F.’s disability and his termination.
The Arbitrator was not satisfied the city had properly assessed the scope of J.F.’s drinking problem. Nevertheless, the city did have just cause to discipline J.F. for his serious misconduct, the Arbitrator said.
“However, alcoholism is a disability, and though neither it nor any other disability excuses employment misconduct, it can mitigate it, particularly where the employee acknowledges and takes responsibility for his addiction, and demonstrates a willingness and ability to resist the compulsion to consume alcohol. I am satisfied that this is such a case.”
The Arbitrator said the city and the public were entitled to the protection of an objective process to monitor J.F.’s behaviour to ensure that he stayed on the path to recovery.
J.F.’s reinstatement without pay was conditional on his continued abstention from alcohol as verified and supported by a regime of testing, counselling and treatment.
