Alcoholic reinstated under strict conditions

The grievor had already had one last-chance agreement and had survived it. He was found drunk at work on several occasions and was finally fired. The arbitrator decided that his alcoholism required accommodation and that his efforts at rehabilitation were more serious than in the past. He was reinstated with zero tolerance for intoxication at work.

Discovered drunk on the job, a worker in a safety-sensitive job was fired.

The incident was the third time the worker had been discovered intoxicated at work and it occurred one month following the expiration of a “last chance” agreement that committed the worker to sobriety.

Z.K. worked as an electrician at a hog slaughtering plant that employed about 1,000 workers. The plant was a hazardous industrial environment. Z.K.’s job — working with high voltages, often at heights — was considered a safety-sensitive job. He had 29 years’ seniority when he was fired on Sept. 24, 2010.

On Nov. 7, 2007, Z.K. was found to be intoxicated at work. He was sent home, given a one-day suspension and cautioned that another such incident could result in severe discipline up to and including termination.

On July 14, 2009, Z.K. went missing during the day shift. He was discovered sleeping on the roof of the plant. He was intoxicated and in an unfit condition for working.

Z.K. was suspended for 10 days for that incident. He was also required to comply with the terms of a one-year last chance agreement that provided for his termination if he reported for work in an unfit condition. The agreement expired on July 28, 2010.

Z.K. was also referred to counselling for alcohol abuse through the employer’s Employee Assistance Program. The counselling he received did not require him to attend rehabilitation or Alcoholics Anonymous (AA).

On Sept. 18, 2010, Z.K. again went missing at work. He was discovered later in an unfit state sitting in his car in the parking lot. His supervisors put him in a taxi and sent him home.

Staggering at work

In the course of the employer’s subsequent investigation, coworkers at the plant reported seeing Z.K. staggering in the plant at about 11 a.m.

Z.K. was not particularly forthcoming in his interview with the employer, admitting only what he was compelled to in the face of the evidence that was presented.

Z.K. was fired.

The employer maintained it had just cause to terminate Z.K. and no modification of the penalty was appropriate. Z.K. was not suffering from a disease or a disability. Z.K. was a liar and a manipulator who had sought cover in the culture of addiction and recovery in order to avoid the consequences of his actions, the employer said. His claims of disability were all too convenient in the circumstances.

Even if Z.K. was disabled, the company had met its obligations to him. He had been accommodated. He had been given another chance. Z.K. was a hazard to himself and to other workers. He could not be safely returned to the workplace without posing risks beyond what the law could reasonably require the employer to bear.

Given his 29 years of service to the company, the union said that a conditional reinstatement was appropriate. Z.K. was disabled. His drunkenness was a manifestation of that disability. Z.K. was now being treated for his condition and he should be accommodated according to the requirements of the Human Rights Code, the union said.

No “get out of jail free card”

Alcoholism is a disability that may require accommodation but it is not a “get out of jail free card,” the Arbitrator said. “[T]he fact that an employee is an ‘alcoholic’ does not mean that he is immune from termination for persistent, work-related intoxication — even if that drinking is a manifestation of his ‘disability.’ ”

The employer is obliged to maintain a safe workplace, the Arbitrator said, and the employer’s concerns about the risks posed by Z.K., particularly in light of his unsuccessful previous attempts to come to grips with his problem, were legitimate.

However, conditional reinstatement was appropriate in this case, the Arbitrator said.

New circumstances indicated that, unlike his previous efforts at rehabilitating himself, this time Z.K. had taken matters to heart.

“The Grievor has recognized his disability; the Grievor has sought treatment for it; and over the course of more than nine months he has maintained his sobriety and has, through the Hospital and AA, diligently pursued the path of recovery — which, if successful, may eliminate the risk that the employer quite reasonably fears.”

Stringent return-to-work conditions were warranted, the Arbitrator said.

“I propose to direct … that as a condition of reinstatement, and until there is affirmative evidence that there is no reasonable risk of relapse, the Grievor will be subject to random witnessed alcohol/drug testing, while at work, which may be triggered, at the Company’s option, whenever it wishes to assure itself that the Grievor is not impaired at work.”

There was to be no more “hide and seek,” the Arbitrator said. For the foreseeable future, Z.K.’s job was on the line. There was to be zero tolerance.

Reference: United Food & Commercial Workers International Union, Local 175 and Fearman’s Pork Inc. R.O. MacDowell — Sole Arbitrator. Rebecca Woodrow for the Union. D.J. Shields for the Employer. Aug. 16, 2011. 45 pp.

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