No accommodation for ‘character flaws’: Board

Frequently absent worker wasn’t alcoholic, just irresponsible

An Alberta worker’s frequent, unjustified absences were the result of irresponsibility, not alcoholism, the Alberta Arbitration Board has ruled.

Kyle Norman, 26, was a process operator at Tack Coal in Hinton, Alta. His work schedule consisted of four days of 12-hour shifts followed by four days off and the shifts could be during the day or overnight.

On Nov. 4, 2008, about 17 months after he was hired, Norman was given a counselling report that indicated he had missed 186 hours of work for the year up to that date — compared to an average annual absenteeism rate of nine hours. The report required him to provide medical notes for absences and contact his foreman if he was going to miss a shift. It also said if his attendance didn’t improve, he could be subject to discipline “up to and including termination.”

In February 2009, Norman transferred to his process operator position and met with management to discuss his attendance. They told him help was available if he needed it. Norman said it was “a new start” for him and he wanted to do well.

On May 27, 2009, Tack held an attendance review meeting with Norman after he missed 198 hours in the first five months of the year. It told him his job was in danger and it would monitor his attendance.

Norman called in sick for a shift in July, but it was in fact because his friend had died. Tack discovered the real reason but allowed it for compassionate reasons. But Norman failed to show up for his next shift.

On Aug. 31, Norman was disciplined for sleeping on the job. He then missed three days of work following the Labour Day holiday. He was again warned he could be fired if his attendance didn’t improve. Norman called in sick for subsequent shifts but was seen at a bar on two of the days.

By Oct. 8, Norman had not come back to work after several days’ absence and Tack demanded a doctor’s note. Norman, who to this point hadn’t seen a doctor, quickly obtained a note.

Tack was skeptical of the note as it was aware of his partying and was prepared to dismiss him. Norman admitted he hadn’t been sick but said he was an alcoholic, which gave him the impulse to party and avoid work. Tack didn’t believe him and fired him on Oct. 28, 2009. Norman claimed the company didn’t accommodate his mental disability, which was the reason for his misconduct.

After hearing from medical experts Norman was not addicted to alcohol but instead had “long-term difficulties coping successfully with life,” the board found his “maladaptive patterns of behaviour” were not a mental disability that required accommodation. His issues with drinking, partying and overspending were related to “personal choice and immaturity,” not mental health issues, it found.

Norman’s dishonesty and his excessive absenteeism were sufficient to give the company just cause for dismissal, found the board.

“(Norman) made the deliberate choice to abuse alcohol, party with his friends and not attend work. We all have personality traits and characteristics that get in the way. Those cannot be laid at the feet of employers. Employers cannot be expected to be responsible for character flaws,” said the board. See Tack Coal v. U.M.W.A., Local 1656, 2010 CarswellAlta 907 (Alta. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit

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