Worker’s firing after cocaine-fuelled accident upheld

Safety sensitive employer’s drug and alcohol policy didn’t discriminate because worker had chance to seek help without penalty before accident

An Alberta worker's dismissal after he admitted to using cocaine following a workplace incident was not discriminatory because the worker had an opportunity to seek help for his addiction beforehand, the Alberta Court of Appeal has ruled.
Ian Stewart was a heavy equipment operator for Elk Valley Coal Corporation at a coal mine near the Cardinal River in Alberta. Stewart’s duties included operating a 170-ton truck, a 260-ton truck, a wheel loader, and a plant loader.

Elk Valley’s mining operation had many hazards in the workplace, so it endeavoured to keep its workplace as safety sensitive as possible. This included an “alcohol, drugs and medications policy” that it implemented on May 2, 2005, updating an earlier policy that had been agreed to by the union. The updated policy was implemented under Elk Valley’s management rights in the collective agreement.

The policy allowed employees “with a dependency or addiction” to seek assistance for rehabilitation without fear of discipline as long as they did so before a “significant event” such as a work-related incident happened. Elk Valley pledged to help any employees who came forward with “problems of abuse, dependency, or addiction associated with alcohol, illegal drugs and medications” through its employee assistance program (EAP). The policy did not exempt employees who came forward after a significant event from discipline or dismissal, though dismissal was not automatic. The policy didn’t apply to off-duty conduct, so any applicable incident must happen at work.

The updated policy elaborated more clearly than the old policy, which simply encouraged employees with concern about their use of drugs or alcohol to seek assistance through the EAP. Stewart, along with other employees, attended a training session on the new policy and signed a form indicated he understood it. He didn’t think he had a problem with his drug use, so he didn’t pursue any assistance under the new policy.

Elk Valley also had a practice regarding employees who were terminated for drug or alcohol abuse related to their work. If such terminated employees followed a rehabilitative program, Elk Valley would consider re-hiring them after six months.

Worker involved in workplace incident admitted to cocaine use

On Oct. 18, 2005, Stewart was operating a loader truck when he struck another truck. After the incident, he took a drug test and tested positive for cocaine. Stewart acknowledged that he had consumed cocaine the night before and was feeling sleepy at the time of the incident because of it.

Elk Valley terminated Stewart’s employment on Nov. 3, 2005, for violating the alcohol, drug and medication policy and causing a potentially dangerous workplace incident. In the termination letter, the company said it was “hopeful that you will find the personal resolve that is necessary to overcome an addiction.” It also said it would consider an application for re-employment after six months, if there was a suitable vacancy, if he successfully completed a rehabilitation program and he agreed to a 24-month recovery maintenance agreement with conditions to monitor him. If he completed such an agreement, Elk Valley would reimburse Stewart for half of the cost of his rehabilitation program.

The day after his termination, Stewart sent a letter to Elk Valley saying he had “come to realize that I do have a problem for which I am currently seeking professional help.” The union offered to help him with treatment at a nearby addiction centre but Stewart didn’t follow up.

The union filed a complaint that Stewart had a drug addiction that constituted a physical disability and Elk Valley discriminated against him on the grounds of that disability when it refused to continue to employ him because of it.

The Alberta Human Rights Tribunal found there was no discrimination because Elk Valley terminated Stewart not because of his drug dependency, but rather because he breached the company’s drug and alcohol policy. The tribunal agreed Stewart had a disability and his termination was adverse treatment, but it found the disability was not a factor in the termination.

“The adverse effect of the policy as applied to Mr. Stewart came about, not because of his disability, but because of his failure to stop using drugs and his failure to disclose,” said the tribunal.

The tribunal also found the application of Elk Valley’s drug and alcohol policy wasn’t arbitrary and didn’t perpetuate stereotypes or disadvantages suffered by drug addicts. The reason for the policy was to remove drug users and drug addicts from the safety sensitive workplace.

The union appealed the decision to the Alberta Court of Queen’s Bench. The court agreed with the tribunal’s finding that Stewart had the capacity to use the assistance provided for in the policy but chose to conceal his drug use and his dismissal was the result of his breach of the policy. It also agreed keeping drug users and addicts out of the workplace was a bona fide occupational requirement in Elk Valley’s safety sensitive workplace.

However, the court found while the drug and alcohol policy offered accommodation — as did Elk Valley’s practice of offering re-employment after six months for rehabilitated former employees — the accommodation wasn’t to the point of undue hardship. In Stewart’s case, he only came to realize he had a problem after the incident, at which point he wasn’t protected from discipline or termination under the policy if he came forward, said the court. Despite this, the court upheld the tribunal’s decision and the union appealed again, this time to the Alberta Court of Appeal.

Workers with addictions not disadvantaged under policy: Court

The Court of Appeal noted that Elk Valley’s drug and alcohol policy singled out “the subset of employees who have or believe they may have alcohol or drug addiction or dependency, of whom perhaps a smaller subset of people who have such a disability,” but the policy provided for a “protected route to assistance,” not “rigid and inflexible discipline.”

The appeal court found the policy could catch an employee with an addiction disability, but also drug users who didn’t have a disability. In addition, a disability revealed voluntarily before a significant event would have no adverse impact. As a result, “disability was not a real factor in the enforcement of the policy,” said the appeal court.

The appeal court also found the suggestion that Stewart was in denial of his condition didn’t change the reasonableness of Elk Valley’s accommodation steps and the policy’s purpose of maintaining a safety sensitive workplace. Whether Stewart felt he was dependent on drugs or not, he knew he used them before going to work and he had the opportunity to come forward without penalty.

“Creating a situation where, post-incident, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace,” said the Court of Appeal.

The appeal court disagreed with the Court of Queen’s Bench regarding accommodation, finding “undue hardship relates to the negative effect on the operations of the employer arising from the effort to accommodate.” Elk Valley’s balancing of options for accommodation with its safety sensitive workplace was adequate and the company lived up to its duty to accommodate, said the appeal court.

The appeal was dismissed and Stewart’s dismissal was upheld, with one Court of Appeal judge dissenting over the issue of whether the adverse effect on Stewart — his termination of employment — was related to his disability.

For more information see:

• Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (Alta. C.A.).

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