Self-identified substance abuser gets last chance

Failure to produce drug test not fatal to case

Fired after he failed to comply with conditions he had agreed to in order to facilitate his return to work following a disciplinary suspension, a self-identified substance abuser grieved his termination.

Employed at a manufacturing plant for 12 years, J.D. (John Doe) was involved in a violent incident at work on March 2, 2010. Though he was not the instigator of the fight, J.D.’s behaviour escalated the confrontation. Both workers were suspended for 10 days.

However, J.D.’s circumstances were viewed in light of his earlier self-disclosure of substance abuse problems — an admission he made two years earlier following a suspension for absenteeism. Treatment and rehabilitation followed that suspension. Concerns about his behaviour, work performance, attendance and productivity continued nevertheless.

The employer was of the view that J.D.’s substance abuse problems were a contributor to the incident and an indicator that he had not completely resolved his problems. Consequently, the employer set out a number of conditions before J.D. would be permitted to return to work.

Clean drug tests required

Among the conditions were that J.D. provide clean drug test results — either randomly upon request or for cause — from an approved laboratory for a three-year period. J.D. was also required to prove that he was continuing to participate in an aftercare program. J.D. was informed that failure to comply with the conditions could result in termination.

The conditions were set out in a letter which, after negotiations and employer additions concerning drug-testing protocols to certify sample “chain of custody,” J.D. ultimately signed.

J.D. returned to work. However, after working half of his first shift back on assignment with the person he had fought with, J.D. told his supervisor he was too stressed to continue. J.D. left early.

J.D. was assigned to work with the same co-worker the next day too. J.D. framed his concerns about working with his antagonist as a health and safety complaint. At a meeting convened to address J.D.’s concerns, J.D. made it clear that he wanted to leave and that he was willing to use vacation time.

J.D. was permitted to leave, but he was told that he would be required to provide a clean drug report along with evidence assuring sample chain of custody as specified by the letter by March 24. J.D. agreed.

Test results rejected

J.D. brought analysis results to the plant on March 24 as requested. However, the test results were rejected. There was no accompanying certification to establish that chain of custody protocols were followed as required.

The employer’s initial insistence that a new analysis be provided by March 26 was modified in the face of assurances that J.D. was still on vacation and not reachable. Word was sent to J.D. that he was to attend an appointment at an approved testing centre on March 29. Documentation concerning requirements for the new test and a reminder that failure to comply could result in termination was couriered to J.D. The package was signed for, though J.D. later denied that he had accepted it.

Word came back from J.D. that he could not submit to the test because he had lost his identification while on holiday and could not supply two pieces of identification as required by the testing protocols.

The employer sent word back that someone from management would attend at the testing site to vouch for J.D.’s identity. J.D. responded that the analysis he had already provided was good enough and that he would not be attending the test. J.D. was fired.

Discriminatory treatment

The union grieved. The employer did not have an established drug and alcohol testing policy, and its requirement that J.D. provide urine samples constituted discrimination on the basis of a disability. This was contrary to the Ontario Human Rights Code, the union said.

J.D. had been placed on notice following his self-disclosed substance abuse problems, the employer said. J.D. was permitted to return to work only conditionally because he presented a danger to himself and his co-workers. Though J.D. may not have liked the conditions that were set out, he agreed to them. However, he did not abide by them and his excuses to explain his failure to comply were not credible.

The Arbitrator too expressed reservations. “There are very good reasons for denying this grievance. The grievor has not been co-operative, and his story about losing his wallet is far from credible.”

The Arbitrator also found the apparent suggestion that some other, unknown person had accepted and signed for the courier package sent to J.D. as improbable. “The likelihood that such a story is true is very low indeed.”

Statutory right to non-discrimination

“On the other hand,” the Arbitrator said, “there is one good reason to provide the grievor with a further opportunity to demonstrate his recovery. The grievor’s disability is one recognized by the Ontario Human Rights Code, a statutory recognition that must carry considerable weight, and ought not to be easily ignored or treated as abandoned by an arbitrator.”

J.D. did have a part in his failure to address his problems, the Arbitrator said, “but in the circumstances of a protected statutory right to non-discrimination, it has to be recognized that the nature of the disability suffered by the grievor is such that rational decisions cannot always be expected of persons afflicted with that disability.”

The grievance was allowed. J.D was permitted to return to work on the condition that he provide a clean drug test within seven days.

Failure to attend the drug test or provision of a positive test, would result in the termination being upheld. In the event of an approved medical leave of absence, J.D. would have one year to supply a clean drug test.

Reference: Fisher & Ludlow and National Automobile, Aerospace, Transportation and General Workers of Canada — CAW Canada, Local 504. Kenneth P. Swan — Sole Arbitrator. Jeffrey D. A. Murray for the Employer and Tom Rooke for the Union. December 2, 2010. 21 pp.

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