Undue hardship? Not always

An arbitration board has upheld the firing of a college professor even though it said the college did not adequately accommodate his alcoholism

Professor with alcohol problem fired

An arbitration board has upheld the firing of a college professor even though it said the college did not adequately accommodate his alcoholism.

In Loyalist College of Applied Arts & Technology v. O.P.S.E.U., Local 420, the board said the professor’s computer misuse, combined with his alcohol-related problems, led to a situation where it had no choice but to find in favour of the employer in a case where it said, clearly, nobody won.

The case

The professor was a respected faculty member at Loyalist College in Belleville, Ont., where he taught for more than 18 years starting in 1984. He was married, in his late 50s with two teenage children.

The board said he had been an “innovative and hardworking member of the faculty” who helped develop new programs. He taught numerous courses and was elected twice as the faculty’s representative on the college’s board of governors.

But he also had a history of alcohol abuse. The problem first began to manifest itself in the workplace in 2000, though it had been a problem for two decades. He described himself as a “binge drinker” who would typically go for long periods without drinking much alcohol, but then drink to excess on weekends.

He first sought help in 1992 and started attending Alcoholics Anonymous (AA) meetings in 1996, albeit sporadically. But over the years the alcoholism did not affect his work. That changed in 2000 when he did not report to any of his scheduled classes during the week of April 24. On two of these days he did not contact the college to let it know he would not be attending.

He attributed the absences to binge drinking that had begun on the weekend. On April 27 the school’s dean received a call from the professor’s priest who gave an explanation for the absence. On April 28 the dean met with the professor. The two men discussed his financial, marital and alcohol-related difficulties. It was the first time the dean had been made aware that he had a problem with alcohol abuse.

The dean was supportive and offered to help, but stated that his absence could not be condoned especially in light of the fact that it was during exam time and several of his classes had been left hanging.

The dean wrote a memo to the professor outlining the college’s concerns and offering its support. It said it expected there to be no further incidents of a similar nature, and that the dean would keep the memo in his possession for one year at which time he would decide whether to destroy it or place it in his personnel file.

The professor resolved to do something about his problem. But in February 2001 the problem surfaced again. Following a weekend of drinking, he did not report to work on Feb. 20 and Feb. 21. As a result he was unable to administer two tests and students were left waiting in the classrooms. The tests had to be moved, something that was disruptive and disturbing to the students.

On Feb. 22, the dean met with the professor. Because this incident occurred less than a year after the memo, it was placed in his file. He was not paid for the two days missed and was suspended without pay for a further five days. A disciplinary note was issued, stating “this inadequate performance will not be tolerated. Should there be any further incidents … you will be subject to further disciplinary action up to and including dismissal.”

The professor admitted he made a mistake. He explored the possibility of entering a residential treatment program for alcohol addiction. But he was led to believe there was a six to 12 month waiting period by a person he often went to AA with and abandoned this idea.

The problem surfaced again at work in January 2002. The professor had been given time off work to attend the funeral of a friend. He drove out of town to attend the funeral. While with old friends, his excessive drinking began again. He was later arrested and charged with impaired driving. (He was subsequently convicted and had his driver’s licence suspended for one year.)

The next day he called in sick because he was “extremely distraught” over being charged. He stayed off work for about one week and his classes were suspended.

A meeting was scheduled between the professor, the dean, the college’s vice-president of HR and a union representative for Feb. 7, 2002. Up to that point the college had been willing to deal with him in accordance with its standard progressive discipline pattern, beginning with a warning letter and then escalating to progressively higher suspensions. But at this meeting the college tabled a “last chance agreement.” The college said it was crafted with the intent to get the professor to change his behaviour.

The professor was told that unless he signed the agreement his employment would be terminated. The union did not agree with either the imposition or the terms of the proposed last chance agreement. It felt the college had not done even the minimum of what it should do to accommodate the professor.

The professor ended up signing it (though the union did not) expressing optimism that he could live up to its terms. It essentially laid out the history of problems and stated he must immediately seek help through the college’s employee assistance plan (EAP) to tackle his drinking problem.

It forbid him to drink on any college premises or at any college functions. Most importantly, it stressed that no absences due to alcohol consumption would be satisfactory. Any breach of the agreement would constitute just cause for dismissal. (Online bonus: Read the relevant portions of the last chance agreement by click on the "related articles" link at the bottom of this page.)

Despite everyone’s hopes and good intentions, drinking affected his work again in early 2003. In the last week of January he checked himself into a hotel and called in sick on Monday, Tuesday and Wednesday. But in reality he was on another binge. On Thursday he failed to contact the college and was absent again. On Friday he developed chest pains and was admitted to the hospital’s emergency department where he stayed until the following day.

He returned to work on Monday and met with the dean. The dean asked him if he had been drinking, and he said no. He gave the dean a doctor’s note from the hospital’s emergency department stating he had been under medical care since Jan. 27. The dean was suspicious and not satisfied with the note. He insisted the professor sign a medical release form so the college could further investigate the recent absence from work.

The professor gave the college permission, and the report it received back clearly stated the professor had been drinking “rather heavily” in the week before being admitted. When the college received the report, it decided to terminate his employment, which it did on Feb. 19.

After the dismissal, the college found what it called inappropriate pornography on the professor’s desktop computer in his office and on the laptop he was given. It also relied on that evidence to support its decision to terminate his employment.

The board’s decision

Ultimately, the board determined the termination was warranted. It said the college did not meet the undue hardship test in accommodating his disability. But the professor did not demonstrate that his behaviour had changed enough to warrant reinstatement. Had that been the only evidence the board dealt with, it said it might have arrived at a different conclusion.

But the “obscene” images found on his computers pushed it into the employer’s camp. The images and videos, some showing bondage and other degrading sexual activity, were offensive and inappropriate and the professor should have known better despite the lack of a computer-use policy by the college.

On their own, the alcohol-related absences and the inappropriate computer use might not have been enough to warrant dismissal. But put together, the board said, it had no choice but to conclude the employer-employee relationship had been “irretrievably destroyed” in this case.

“While the grievance must be denied, it is clear that no one won the case,” it said in the decision. “The college has lost a professor who made considerable contributions to its programs and to the institution. His dedication was never questioned. It is a tragedy that his self-destruction, his disease and his misjudgment have led to his employment being terminated.” It also asked the college to consider letting the professor resign rather than be fired.

Board member disagrees with decision

A dissenting member of the arbitration board said she could not concur with the majority’s decision in this case.

She said the fact the college did not accommodate his alcoholism is grounds, on its own, to find in the professor’s favour. She also disagreed with the notion that he had not shown adequate progress in the time since his dismissal.

He presented himself as a “healthy, articulate man with a great deal of dignity.” He had also succeeded in obtaining and maintaining employment for the last year. He completed a 21-day residential program designed to assist him with alcohol abuse, was attending AA meetings twice a week and was regularly seeing his psychiatrist.

“He is an alcoholic,” she said in her dissenting opinion. “He needs support. He didn’t get adequate support from his employer. Yet there were only four occasions in three years when his alcoholism caused him to miss work and then for only 12 days in total. He continues to fight the addiction by himself. Because of 18 years of outstanding service, he has earned the support of the college.”

For more information see:

Loyalist College of Applied Arts & Technology v. O.P.S.E.U., Local 420, 2004 CarswellOnt 4536 (Ont. Arb. Bd.)

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