Worker breached last-chance agreement

Unionized worker fired after testing positive for cannabis, cocaine

This instalment of You Make the Call puts the spotlight on the issue of when drug abuse is an addiction that needs to be accommodated and when it’s not.

Drug addiction is generally recognized as an illness and, therefore, a disability requiring accommodation to the point of undue hardship under human rights legislation. However, drug use, or even periodic drug abuse, is not necessarily drug addiction amounting to an illness or a disability.

So for employers, the key question is whether or not the worker is an addict. If he is, then accommodation of the disability is required.

The worker was an employee of Accuride Canada and a member of Local 27 of the Canadian Auto Workers union. He had been on the job for 25 years when he was fired on Sept. 8, 2005, for breach of a last-chance agreement dated Jan. 7, 2005. The agreement included the following term:

“Any breach of this condition … shall result in (his) termination from employment, which termination is agreed to be for just cause. The union and (the worker) may only grieve whether the breach occurred. If it is established that a breach occurred, no arbitrator may interfere with the penalty.”

On Aug. 30, 2005, the worker tested positive for cannabis and cocaine. There was no doubt he breached the abstinence condition. But the union argued the condition is void and unenforceable because it discriminated against the worker because of a handicap due to illness — drug abuse.

No evidence of drug addiction was presented to the arbitrator. The worker was admitted to the Homewood Health Centre in 2004, just prior to the signing of the last-chance agreement, and he completed a two-week program.

The worker said he was drug-free after he signed the last-chance agreement and stayed so for about eight months. During that period, there was no problem with his attendance at work or his performance of his duties while at work due to drug use.

But one night he was “in the wrong place at the wrong time” and had a relapse. There was no indication or suggestion that he continued to use drugs following his, apparently, momentary weekend “relapse” at the end of August 2005.

You make the call
Was the employer justified in firing the worker?
Should he have been accommodated for his drug use?

If you said the employer was justified in firing the worker, you’re correct. There simply wasn’t any evidence the worker was addicted. The arbitrator said there was nothing to suggest a compulsive, uncontrollable dependency on drugs at the level of an addiction.

“Rather, it indicates an individual generally in control of his drug use who abstained for eight months and then used again of his own volition, or, simply because he chose to, on an isolated occasion at the end of August 2005, and then, according to him, abstained again for almost another year up to the date of this hearing,” the arbitrator said.

In any event, in the absence of any medical evidence establishing an illness or evidence from some other competent expert establishing drug addiction amounting to a disability under human rights legislation, there was no basis for finding the last-chance agreement was unenforceable, the arbitrator said.

“There is no dispute the (worker) was in breach of that agreement, triggering the agreed-upon termination for just cause,” the arbitrator said. “On the express terms of that condition, there is no basis for interfering with the termination of the (worker’s) employment in this case and his grievance is dismissed.”

For more information see:

Accuride Canada Inc. v. CAW-Canada, Local 27, 2006 CarswellNat 2918 (Can. Arb. Bd.)

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