Arbitrator okays strict rules for alcoholic employee’s last chance

Urine tests, anti-drinking drug, mandatory counselling all part of reinstatement

For many years, the grievor worked on the small motors conveyor line at the General Electric plant in Oshawa, Ont. He was a good worker –– when he was there. The problem was that he was often absent. One year he missed the equivalent of 18 weeks of work. Underlying his poor attendance was his addiction to alcohol.

He had already attended two alcohol rehabilitation programs, when he was fired for continued poor attendance. The union launched a grievance and in the time it took to work out the conditions for his possible reinstatement, the grievor attended two more treatment programs.

The company was willing to give him another chance –– a “last chance.” It wanted assurances his alcoholism was under control and that he would improve his attendance at work. The most important element of the reinstatement was that the company needed to verify the concrete steps the grievor took to avoid a relapse.

The company wanted random drug testing to be compulsory for the grievor. It wanted him to understand in no uncertain terms that if he didn’t improve his attendance, he would lose his job once and for all. The company insisted he start taking Antabuse, a drug used in the treatment of alcoholism. When the patient drinks even small amounts of alcohol, the drug produces a highly unpleasant reaction, including vomiting, severe headache and dizziness.

While the union agreed with having a series of conditions for reinstating the grievor, it had concerns about what they should be. Among other things, it asserted there was a conflict with the collective agreement’s sunset clause regarding discipline, which cleared an employee’s record after two years. The union argued the drug testing requirement was an invasion of privacy. The union was also not convinced that a future relapse should be grounds for immediate dismissal without recourse to arbitration. Finally it wanted the grievor to be reimbursed for lost wages for the six months previous to the arbitration hearing during which, according to the union, he was “clean and sober and ready to work.”

The arbitrator focused on the fact that “accommodation is a two-way street.” He noted that addiction is a disability which employers must accommodate under the terms of the Ontario Human Rights Code. He stated, “The behaviour in question is not the grievor’s ‘fault,’ but rather a manifestation of his addiction.”

In doing so, he noted that references to the sunset clause were misapplied since the case was not to be seen primarily through a disciplinary lens. However, he added the grievor was not immune to discipline or termination because he was disabled by alcoholism. He was ultimately responsible for his own recovery.

On the issue of drug testing, the arbitrator acknowledged that such testing would likely be against the law if instituted on a general company-wide basis and might not be appropriate in many individual cases either. However, he also concluded that, given the facts of the grievor’s situation, testing was a reasonable and necessary tool to verify his compliance

In the first place, the grievor’s problem was long-standing, and he had already gone through several treatment programs with, at the very most, mixed success. As well, he had not gotten along well with the local employee assistance program (EAP) committee nor had his union backed the committee’s “sensible proposals” for his treatment. Making the issue even more difficult was a lack of independent medical evidence and the fact that information from his family doctor had not addressed his addiction problem at all. The company therefore had very little to go on to assess his progress.

The arbitrator ruled the grievor should be reinstated to his job for one last try, although he balked at ordering the company to give him back wages. For his part, the grievor was to stop drinking. He had to take Antabuse, administered daily by a company representative for two years, attend regular Alcoholics Anonymous meetings, meet with his EAP counsellor and select a physician experienced in treating alcohol addiction. In addition, he was to agree to monthly random urine testing and to additional testing if the company felt he was impaired at work.

This opportunity was likely the grievor’s last chance to get a handle on his addiction and keep his job. According to the arbitrator, “While the grievor may be powerless over his addiction, he has choices with respect to his recovery.”

For more information: National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 524 and General Electric Canada, Ontario Labour Code Arbitration, R.O. MacDowell – Sole Arbitrator, June 4, 2003.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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