Employee fired for buying drug while working but arbitrator says employer should have offered him disability benefits for rehab
Paying attention to the signs
Addiction to drugs or alcohol is widely recognized as a disability that must be accommodated by employers under human rights legislation. However, there have been many cases that have shown there can be a grey area over what constitutes an addiction and how much it influences one’s actions.
Direct Energy found itself facing these questions and what it had to do about it when one of its employees admitted to drug-related misconduct while on the job. Direct Energy took the position the employee knew what he was doing because he wasn’t high when he committed the misconduct and it was serious enough to warrant firing because it couldn’t trust him. It also said it couldn’t have been expected to accommodate him because it didn’t know he had an addiction.
It turned out that although Direct Energy believed in good faith it handled the situation appropriately, an arbitrator disagreed and shed some light for the company on addiction as a disability and the duty to accommodate.
An Ontario company should not have fired an employee for buying cocaine on the job, an arbitrator has ruled. Why? Because his addiction, which constituted a disability, contributed to his misconduct, even though he wasn’t under the influence of the drug when he did it.
Nelson Tomas, 31, was hired in September 2005 as a plumber for home energy service provider Direct Energy in Toronto. In February 2007, he told the company he was a drug user and Direct Energy referred him to its employee assistance program (EAP), which assigned him an addiction counselor and helped him plan to undergo a rehabilitation program. At the time, Tomas had not had any performance issues or previous discipline since he joined Direct Energy.
‘Relapse’ led to drug deal while working
However, Tomas didn’t follow through with his rehabilitation plan and continued to use cocaine. On Nov. 16, 2007, during a shift in which he was wearing the company uniform and driving a company vehicle, he bought some cocaine and carried it with him for the rest of his shift, including taking it into customers’ homes. The following day, which was a Saturday, Tomas took the same company truck to a mall to buy more cocaine, after which he left the truck at the mall for the rest of the weekend. On the following Tuesday, Nov. 20, he told Direct Energy he had a relapse and explained what he had done, but pointed out he didn’t do drugs while working.
Direct Energy suspended Tomas with pay pending an investigation into the matter. On Nov. 30, 2007, it suspended him for “purchasing illegal drugs while on company time during your shift.” Direct Energy said it required a high level of trust in its service personnel because they worked unsupervised in customers’ homes and Tomas’ misconduct violated that trust, which was fundamental to the employment relationship.
After his firing, Tomas entered a counselling program and began attending Narcotics Anonymous meetings regularly. He tested clean in February 2008. However, he told his family doctor in June 2008 that he was still using drugs and he needed his employer to send him to a “structured rehabilitation program” to avoid further relapses. An addiction specialist subsequently diagnosed Tomas with a substance abuse disorder as well as a mood disorder.
Employee should be accommodated, not fired: Union
The union filed a grievance on behalf of Tomas, arguing Direct Energy didn’t properly address his addiction when he initially came forward in February 2007. It also was aware of his problem nine months later when it learned of his misconduct. The union said Tomas had an addiction, which was a disability under the Ontario Human Rights Code, and as a result Direct Energy should not have fired him for his actions and had an obligation to accommodate him.
Direct Energy said it had no reason to believe Tomas had an addiction, as he had only said he was a drug user, not an addict, and he had no previous performance issues. It defended its decision to refer him to the EAP as the proper thing to do based on what it knew at the time. It also said Tomas wasn’t under any influence of drugs when he bought the cocaine, so his condition could not be causally linked to his misconduct. Finally, the company said trust was a bona fide occupational requirement that wasn’t possible to have without full rehabilitation, something that could not be guaranteed even by Tomas’ doctors. Therefore, it would cause undue hardship to accommodate him in his job as a plumber in customers’ homes.
The arbitrator agreed with Direct Energy’s basic rationale for firing Tomas, that a two-year employee trusted with working unsupervised in customers’ homes buying illegal drugs during working hours while in company uniform and using a company vehicle, as well as taking them into a customer’s home, was significant enough misconduct to warrant termination.
Employer should have suspected addiction: Arbitrator
However, the arbitrator found even though Direct Energy didn’t have direct information that Tomas had a cocaine addiction, the company should have made the connection with the information it did have and realized he had a disability. It knew he used cocaine from his earlier admission and did the right thing by referring him to the EAP, said the arbitrator. However, when Tomas told them about his misconduct and that he had a relapse, the company should have realized he may have an addiction and taken action to accommodate him with disability benefits and treatment.
“At this point, the employer, who must be presumed to know cocaine is an addictive drug and while all users do not become addicts a significant number do, should reasonably have suspected Mr. Tomas may have been suffering from a cocaine addiction,” said the arbitrator. “An employer cannot turn a blind eye to suspicious behavior or other manifestations of an actual disability and then be able to rely upon the absence of direct knowledge to argue it is under no obligation to accommodate.”
The arbitrator also found although Tomas was not under the influence of cocaine and was conscious of his actions when he left work to purchase more of the drug, the misconduct was related to his addiction. Given the “obvious connection between an addiction to cocaine and the need to purchase cocaine,” the arbitrator was satisfied his judgment was impaired and there was a causal relationship between the misconduct and the addiction. Because Tomas’ misconduct was the result of his addiction, the arbitrator found Direct Energy did not have just cause to fire him for it.
Direct Energy was ordered to reinstate Tomas effective from the date of his termination, without loss of seniority. The arbitrator stipulated the reinstatement was not to his job, as it agreed Tomas was unable to perform it in his condition, but to allow him to access Direct Energy’s benefit programs and receive treatment as any other disabled employee would be able to. To actually return to work, Tomas would have to be cleared to return to work by medical professional.
“Instead of being terminated, Mr. Tomas should have been held out of service and referred for a medical assessment,” said the arbitrator.
The arbitrator also pointed out the union and employee also have obligations in the duty to accommodate, and Tomas must address his addiction and work towards overcoming it in order to successfully get his job back — “an obligation he has thus far been unable or unwilling to meet.”
For more information see:
•Direct Energy v. C.E.P., Local 975, 2009 CarswellOnt 4343 (Ont. Arb. Bd.).
FROM THE ARCHIVES
This issue’s Case in Point is similar to a case covered in the July 15, 2009, issue of Canadian Employment Law Today involving a worker who was caught smoking marijuana where the employer had a zero-tolerance policy against drugs at work. An arbitration board found even though the worker was aware of the risk, his addiction played a small part in influencing his actions. It reinstated the worker with a 10-month suspension without pay.
However, a case discussed in the March 29, 2006, demonstrated employees can’t simply claim an addiction. A worker at National Steel Car claimed he had an addiction and booked off work. His employer accepted his claim and consented to the time off so he could seek help.
However, after a five-month absence with no medical documentation, he was fired. An arbitration board upheld the firing, saying the employee likely used drugs but failed to prove he was an addict requiring accommodation. It said the onus was on the employee to clearly establish an addiction to trigger accommodation and mitigate any misconduct.