Permanent employment terms not discriminatory

Court rules imposing conditions on addict were necessary to address ongoing absenteeism

An arbitrator’s decision imposing special terms and conditions on an employee addicted to alcohol and cocaine for the duration of his employment is not discriminatory, the British Columbia Supreme Court has ruled.

Gerry Black, 46, was a letter carrier for Canada Post in Victoria. Black was addicted to both alcohol and cocaine, which led to attendance problems at work. In 2001, Canada Post felt his absenteeism was beyond its ability to handle and it exercised its right under the collective agreement to release him for incapacity.

Black grieved the release and reached a settlement under which, for a period of 18 months, he was required to complete a drug dependency and rehabilitation program, stop using drugs and alcohol and maintain specified standards of attendance. Black met all these conditions and had no attendance problems for the duration of the settlement period.

Attendance problems continued

However, shortly after the terms of the 2001 settlement expired, Black’s attendance began to slip again.

By September 2005, Canada Post decided more action was needed. Black was interviewed on Sept. 29, given a warning letter and allowed to enter a 30-day residential treatment program.

Black continued to have attendance problems, however, and Canada Post interviewed him again on July 13, 2006. Black told Canada Post he was motivated to keep good attendance when he was subject to terms and conditions and suggested it reimpose them. Canada Post gave him another warning letter that said his attendance would be monitored and if it didn’t approve, he would be released for incapacity again.

After his attendance didn’t improve, Black admitted he still had “an ongoing problem with alcohol and cocaine” but refused Canada Post’s offer of assistance. On Oct. 24, 2006, Canada Post terminated Black for incapacity under the collective agreement.

Arbitrator sets out conditions of employment

The union filed a grievance and on April 3, 2007, an arbitrator agreed to stay the release for incapacity. However, the arbitrator set out a series of terms and conditions Black must follow in order stay at Canada Post.

The arbitrator required Black to complete a “structured substance addiction rehabilitation program” accepted by Canada Post’s occupational health consultant. He also had to consent to the program providing reports confirming his attendance to Canada post.

Black had to attend Alcoholics Anonymous and Narcotics Anonymous meetings and refrain from using any drugs or alcohol except for those prescribed. In addition, Black was not to exceed eight days of absence during any 12-month period and provide a medical certificate for every absence claimed to be due to illness.

If Black breached any of the conditions, Canada Post would be free to dismiss him. The arbitrator stipulated these terms and conditions would be in effect as long as Black worked for Canada Post, despite the fact the employer hadn’t asked for that duration.

Union claims discrimination

The union appealed the decision, arguing the establishment of permanent conditions on Black’s employment was a violation of the Canadian Human Rights Act by discriminating against him because of his addiction, which was a disability.

The union said the conditions failed to meet the standard of the duty to accommodate because Black was being held to a higher standard of attendance than other employees in his work area, many of whom were absent more than eight days a year. The attendance standard also was contrary to the collective agreement, which allowed for ten sick days a year without a medical certificate.

It also pointed out Black’s employment security was also diminished, since Canada Post was free to terminate him for a single breach of the attendance requirement and his right to privacy of medical treatment was violated since Canada Post could obtain reports on his treatment.

The union said the effect of the conditions imposed by the arbitrator was for Black to be treated differently than his co-workers “as though his employment is governed by a ‘B’ version of the collective agreement” and their permanence denied him “the opportunity to ever show that he has achieved rehabilitation and entitlement to the same employment status as other employees.

Conditions allow accommodation without undue hardship

Both sides agreed addictions can be life-long problems and Black’s history showed his addictions were a long-standing issue. The court pointed out Black had actually told Canada Post during the July 13, 2006, interview that having terms and conditions imposed on him helped him deal with his addictions and motivate him to improve attendance.

The court agreed with Canada Post’s assertion that “the arbitrator fashioned a remedy that allows Canada Post to accommodate (Black’s) disability without undue hardship to Canada Post, as required by the Canadian Human Rights Act.”

The reinstatement terms were meant to help Black maintain a good attendance record that would allow him to stay employed. They were connected to his ability to perform his job, adopted in good faith and necessary to fulfilling a work-related purpose, thus meeting the Meiorin test for accommodation. As a result, the court upheld the terms and conditions imposed on Black’s employment at Canada Post.

“It was open to the arbitrator to take notice of the longevity of addiction to alcohol and cocaine,” the court said. “Permanent conditions were necessary for Mr. Black, taking into account the persistent difficulty he had in maintaining his attendance at work due to his addictions and the fact that addictions can pose long-lasting problems.”

For more information see:

Canada Post Corp. v. C.U.P.W., 2008 CarswellBC 566 (B.C. S.C.).
Terms and conditions of arbitration decision

The following are highlights of the terms and conditions on Gerry Black’s employment established by the arbitrator on April 3, 2007:

Mr. Black will enter into and complete a structured substance addiction rehabilitation program which is satisfactory to the corporation’s occupational health consultant.

Mr. Black will sign a consent form authorizing substance addiction rehabilitation program personnel to provide the corporation’s occupational health consultant or his designate with any required reports confirming his attendance at all sessions, that he is taking all medication, if prescribed, and that he is complying with all other forms of attendance, reporting and treatment required by the program.

Mr. Black shall absolutely refrain from the use of drugs/alcohol excluding those prescribed.

Mr. Black shall maintain attendance at work such that his total rate of absenteeism shall not exceed eight days of absence during any 12-month period.

Mr. Black will provide a medical certificate for each and every occasion of absence which make up his total rate of absenteeism and for which illness is claimed as the cause, at the earliest possible opportunity.

The medical certificate must include: the physician’s name and address; date of visit; start date and return date of return to work; declaration there is no relationship of drugs/alcohol use/substance abuse to the absence; and the doctor’s signature.

Should Mr. Black breach any of these terms and conditions, the corporation may at its discretion reactivate the Oct. 24, 2006, notice of release of incapacity, and release Mr. Black immediately.

These terms and conditions shall remain in full force for the remainder of Mr. Black’s employment with the corporation.

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