Worker can’t blame misconduct on cocaine addiction: Board

Worker said his drug problem made him forge doctor's notes and take too much time off

An Ontario employee is responsible for his misconduct and his employer doesn’t have to accommodate his cocaine addiction, the Ontario Arbitration Board has ruled.

The 30-year-old worker was employed for four years with Robinson Solutions, a supplier of building systems and services based in Kingston, Ont. During his tenure, the worker had a problem with excessive absenteeism and often didn’t call in when he was absent.

The worker admitted to the company that he was addicted to cocaine and he took time off in July 2006 for treatment. He returned to work in the spring of 2007, which was some time after his treatment had been completed. He continued to have attendance problems and used a doctor’s note he received in July 2007 as a template to forge eight medical notes for further absences over a period of nine months.

The worker’s doctor reported the forgeries to the police and the worker was charged and convicted with uttering false documents, leading to a fine. Robinson Solutions learned of the forgeries but the worker didn’t admit to them until the company obtained a written confirmation from the doctor. Once the worker admitted to forging the notes, he said he was ashamed and his behaviour was the result of him trying to hide his addiction from the company.

However, Robinson Solutions felt it had reached the point of undue hardship in its accommodation of the worker and therefore was not required to continue those efforts. Because he knowingly lied about his absences over a long period of time, the company felt he knew what he was doing and couldn’t blame his actions on his addiction. It felt he couldn’t be trusted any longer and fired him on April 3, 2008.

The board agreed the worker’s behaviour could not be attributed solely to his drug addiction. It found he knowingly forged several doctor’s certificates over a long period of time, something which required a lot of thought. He also didn’t have a previous record of good behaviour with the company, as he had only been employed for four years and the entire time was plagued with absences.

“The (worker) knew what he was doing,” the board said. “His behaviour is such that he broke the bond of trust necessary for the continuance of an employment relationship.”

The board found the worker had been given opportunities to get help for his addiction but he failed to take advantage of them. Since there was no evidence his behaviour while working with Robinson Solutions was out of character or could change, it ruled the company could not accommodate him any further without undue hardship. The board dismissed the grievance and upheld the dismissal.

“(The worker’s) record is really quite atrocious and not just ‘spotty’ and I see no reason to subject this employer to a duty of constant surveillance over the (worker),” the board said. “One must be careful to ensure the code is not used as the last refuge of rascals.” See Robinson Solutions Inc. v. CAW-Canada, Local 2163, 2009 CarswellOnt 1607 (Ont. Arb. Bd.).

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