Grievor subject to random testing as part of last-chance agreement
After not one, but two final chances, a machine operator suffering from alcoholism at a bus manufacturer in Manitoba was given a third and final chance by an arbitrator.
Martin Friesen — a machine operator with New Flyer Industries in Winnipeg — was fired after breaching the terms of a second last chance agreement, which pertained to his absenteeism and alcoholism.
For a number of years, Friesen had attendance issues, leading to his termination in 2012. After he was fired, he attended a four-week rehabilitation program, the third he had attended since 2003. Following a stamp of approval from his rehab clinic, he was reinstated under a last chance agreement.
In December of that year, Friesen failed an alcohol test, one of the terms of the last chance agreement that warranted termination, according to New Flyer. But after conversations with his union, Unifor, Friesen was granted another chance in the form of an amended last chance agreement.
That contract required Friesen to undergo bi-weekly alcohol and drug testing. He failed again a few weeks after signing, resulting in his third termination.
Unifor argued honesty should play into mitigation, as should the grievor’s length of service and rehabilitation potential.
In particular, the union pointed to the rehab clinic’s final assessment of Friesen, which said the patient had a 100 per cent chance of succeeding in full rehabilitation. Because the employee was trying to succeed and there was plenty of positive evidence indicating as much, he should be given another chance.
"The grievor has come to the employer for support and has sought help, and thus should be reinstated," Unifor argued at the hearing.
But, as New Flyer argued, Friesen was let go mainly because of "the risk involved to both the grievor and to co-workers if someone is to do his job as a machine operator while under the influence of alcohol."
Furthermore, the case should be legally straightforward. Counsel for New Flyer argued that, as evidenced by the drafting of the second last chance agreement, management had done its due diligence in accommodating Friesen. Therefore, violation of such a legally-binding contract would warrant termination.
"If employers knew that last chance agreements would not be enforced by arbitrators they would not utilize them and employees would lose opportunities to have a further chance," the employer said.
Bottom line, there is a limit on an employer’s obligation to accommodate a disabled employee — a limit that had been reached in this case, and there was no obligation to further accommodate the employee.
But progress is a steady climb, Michael Werier said in his decision.
While last chance agreements are normally to be enforced by law, especially in cases such as Friesen’s where he was given two last chances, the nature of alcoholism poses significant challenges.
"It is widely accepted that alcohol addiction is an illness and a recognized disability under the human rights legislation. It is also widely accepted that it is not easy to ‘beat’ the illness and relapses often occur," Werier’s decision reads. "I am satisfied that (Friesen) is doing everything possible to maintain sobriety."
He added that the case warrants reinstatement, which would not constitute undue hardship. As part of the new terms, Friesen would be reinstated as soon as is convenient for both parties, he shall not receive any back pay but be returned to the same seniority level, abstain from alcohol and non-prescription drug use and attend regular AA meetings. He will also be subject to random testing at the workplace — any positive results of which will result in immediate discharge.
"But this will be his final chance," Werier added. "Given his past history, any further reoccurrences will not be acceptable."
Reference: New Flyer Industries Canada and Unifor Local 3003. Michael D. Werier — arbitrator. Kristin Gibson for the employer, Ken Stuart for the union. Feb. 24, 2014.
