The grievor had been accommodated under a last-chance agreement for his addictions. He had passed several random tests, but eventually refused one because his position had not been defined as safety-sensitive. The arbitrator found that the grievor was bound by his agreement to submit to random testing and that the employer had accommodated him to the point of undue hardship.
A transit worker was fired when he refused to submit to a random drug test mandated by the terms of his return-to-work agreement.
The worker said that the test was discriminatory and a violation of his rights under the Human Rights Code because he was no longer in a safety-sensitive position.
The union grieved.
Hired by a municipal employer in 1998, A.K. completed his probation in August 1999 and qualified as a transit operator. On Dec. 8, 2000, A.K. informed his supervisor that he was going off work to enter into a rehabilitation program for alcohol abuse.
Eight years later, A.K. was accommodated in a non-driving job under the terms of a “Condition of Continued Employment” (CCE) agreement. By that point, A.K. had gone through four stints of rehab for drug and alcohol abuse and two last chance agreements. He had also been absent for about two and one-half years over the course of his year eight-year career.
Chronic, long-term substance abuse and dependency
A.K. tested positive for drugs on Oct. 24, 2008 while he was under the terms of a last chance agreement. A.K.’s doctor said A.K. suffered from the disability of chronic, long-term substance abuse and dependency.
In recognition of A.K.’s disability, the employer sought a permanent accommodation. A.K. was offered the position of Service Technician. The offer was contingent on A.K.’s compliance with the CCE, which, among its conditions, required A.K. to submit to random drug and alcohol testing.
A.K. agreed to the terms of the CCE. He tested negative for drugs and alcohol on Sept. 18, 2009 and returned to work. Random tests one month later were also negative.
However, following the last test A.K., became uncomfortable with the process. He later conducted some research on the Internet and came to the view that the random, without-cause testing was a violation of his human rights because his new Service Technician job was not safety sensitive.
A.K. was informed on Jan. 18, 2010 that he needed to take another test. He refused.
A.K. was fired. The letter of termination referenced the numerous attempts the employer had made to accommodate A.K.’s drug and alcohol addictions. The letter also said A.K.’s refusal to submit to drug and alcohol testing was a violation of the CCE he had signed and that his termination was effective immediately.
Not safety sensitive
Before the Arbitrator, the union argued that A.K. had been accommodated in his new position especially because it was not safety sensitive. That meant that the employer could not satisfy the Supreme Court’s three-part Meiorin test, the union said.
First, there was no bona fide reason for testing A.K.: The testing could not be rationally connected to his job if the job was not safety sensitive. Second, the testing regime could not have been adopted in good faith because A.K.’s job as a Service Technician was not classified as safety sensitive until after he had been terminated. Third, the union disputed that the testing was reasonably necessary to accomplish a work-related purpose and also rejected any assertion that accommodating A.K. would amount to undue hardship.
The Arbitrator disagreed.
The requirement for random testing was rationally connected to the performance of his job because elements of the job — shuttling and road-testing buses as required — did indeed present legitimate safety concerns.
The Arbitrator also found that the testing regime was adopted in good faith. Given A.K.’s history of treatment and relapse, the testing regime imposed by the CCE was adopted in good faith and was necessary to minimize the potential safety risks that A.K. posed to himself and to his fellow employees.
Undue hardship
Accommodating A.K. in the circumstances did amount to undue hardship, the Arbitrator said.
“While it may be possible for the Employer to arrange for the grievor not to drive buses or service vehicles on city streets as part of his duties without experiencing undue financial hardship, the grievor’s other duties cannot be arranged so as to satisfactorily address the employer’s legitimate concerns about safety risks. This is so because the health and safety risks involved in the workplace are associated with the grievor’s disability in the form of his chronic drug and alcohol dependency. That is, the health and safety risks are present, not by way of whatever duties the grievor may be assigned, rather, they are associated with his condition regardless of the duties he is required to perform.”
There were “no compelling factors or circumstances” to justify A.K.’s refusal to take the required test, the Arbitrator said. Accordingly, there was no basis for the Arbitrator to interfere with the employer’s decision to terminate A.K. “In reaching this conclusion, I find the Employer has accommodated the grievor to the point of undue hardship.”
The grievance was dismissed.
Reference: The Corporation of the City of Thunder Bay and The Amalgamated Transit Union, Local 966. William A. Marcotte — Sole Arbitrator. M. Fricot for the Employer. C. Brown for the Union. Nov. 1, 2011. 33 pp. Full Decision Order No. LVI3977-2.
