Arbitration board revises decision and determines employer should have accommodated alcoholic rather than fire him
A British Columbia liquor store manager who was fired for stealing alcohol has been reinstated by an arbitrator because his alcoholism wasn’t accommodated.
Brian Gooding was employed with the B.C. Liquor Distribution Branch in New Westminster for 26 years, working his way up to the position of store manager. He was considered a very good employee and didn’t have any disciplinary problems.
Gooding had been a fairly heavy drinker since his teen years, but when he had difficulty getting along with the new area manager, he began to get more stressed at work and started drinking more. Every day at the end of his shift, he would have “several beers” and then some whisky in his car before going home. At home, he had some more “stiff drinks” followed by one or two bottles of wine at dinner.
Gooding didn’t have enough money to pay for the amount he was drinking, so he began to take more than he could pay for from the liquor store. At work, he would put beer and spirits in a closet in the warehouse and, at the end of a shift, pretend to pay for it and walk out with it. He claimed he intended to pay for it but would only ever pay for some of the bottles. This took place several times a week for about a year.
Other employees at the store noticed what Gooding was doing and told the Loss Prevention Branch of their suspicions that he was stealing alcohol. The branch investigated and found at least three occasions where he had taken alcohol from the store without paying for it. The branch confronted Gooding on June 18, 1998, and he admitted to taking the alcohol. He also said he had a “severe drinking problem” and needed help. The branch told him of its employee assistance program (EAP) and Gooding entered a detoxification and treatment facility on June 20 and was suspended without pay four days later. He later attended weekly sessions with a drug and alcohol counsellor and attended alcoholics anonymous (AA) meetings twice a week. He reported he didn’t have a drink after June 18.
However, the branch decided to terminate Gooding on Aug. 21, 1998. It claimed his position as a store manager required a significant level of trust and his actions violated that trust and irreparably breached the employment relationship. The union filed a grievance, claiming his stealing was a result of alcoholism and the branch violated his human rights by not accommodating his disease.
In its initial decision, the arbitration board found Gooding was not intoxicated when he committed the theft and while the alcoholism may have been a reason for it, his actions were voluntary.
“These thefts were not impulsive acts but rather premeditated ones. Alcoholism was a contributing factor in the theft of alcohol. However, (Gooding) understood the nature and quality of his acts. He knew it was wrong to steal the alcohol,” the board said.
The board said the same principle applied as would in a criminal case: An addiction is not a defense to criminal charges even where there is a direct connection to the offence. An addiction can be used to mitigate a sentence, but it doesn’t eliminate responsibility.
On appeal, the appeal panel found where there is an addiction that has some relation or “causal connection” to workplace misconduct, there must be some consideration that the employee is not completely responsible for his actions. The panel developed a “hybrid test” (see sidebar) which attributes “a mix of causes, a mix of addiction driven conduct and voluntary conduct.” Once it’s determined at least part of the misconduct is addiction driven, human rights comes into play and there must be some level of accommodation. The panel sent the matter back to the arbitration board to re-evaluate the case using the hybrid test.
“To treat alcoholism solely as a mitigating factor rather than as a physical or mental disability which must be accommodated to the point of undue hardship, would be an incorrect application of the hybrid analysis and the human rights analysis,” the board said.
The board noted stealing and other forms of dishonesty are “one of the most significant employment offences.” In addition, Gooding’s actions were premeditated and took place over an extended period of time. Without the human rights consideration, his misconduct was serious enough to warrant dismissal. However, his alcoholism was a factor and the board conceded it “compels a human rights analysis.”
The fact Gooding was addicted to alcohol and had suffered “adverse treatment” — termination — established, on the surface, some degree of discrimination. The branch argued an alcoholic is capable of understanding right from wrong and should be able to follow a workplace rule against stealing, thus making it not discriminatory to discipline an alcoholic for theft. However, the board accepted medical testimony indicating addiction is a progressive condition in which ethical and moral behaviour deteriorates. It also found Gooding’s confession of the thefts were accompanied by the admission he needed help and his entrance into rehabilitation. This supported the conclusion the thefts were caused by “symptoms related to alcoholism.”
Though the branch didn’t know about Gooding’s alcoholism until his confession when confronted with the thefts, the board found it had the opportunity at that point to accommodate him. Gooding entered a detoxification centre two days later and attended regular counselling and AA meetings after that. However, the employer fired him despite the fact he was successfully undergoing treatment and hadn’t had a drink in the two months since the confrontation. All it had done at that point was inform Gooding of the EAP when he admitted his problem.
Gooding had come up with a scheme for only paying for some of the alcohol he took over an extended period of time, he violated his position of trust and he knew it was wrong to steal. These were elements of responsibility he must assume, the board found. However, it found alcoholism brings a “non-culpable” element into the equation and it is a treatable illness where behaviour can be changed. Gooding demonstrated a desire to change immediately and was showing success that he could.
The board found Gooding had done his duty to accommodate his alcoholism by undergoing treatment but received no support from the Liquor Distribution Branch. As a result, his disability wasn’t accommodated and he was wrongfully dismissed.
The board reinstated Gooding to employment with the branch, but did give consideration to the branch’s concerns of trust. As a result, it stipulated he be given a position without supervisory duties.
“It is fundamental that any addicted employee must, as part of the duty to accommodate, undertake rehabilitation. (Gooding) has done this successfully. (His) dismissal must be set aside as it does not meet the just cause standard both within the context of the hybrid test and the human rights analysis, and in particular, the duty to accommodate,” the board said.
For more information see:
• British Columbia v. B.C.G.E.U., 2007 CarswellBC 1693 (B.C. Arb. Bd.).
The hybrid test for addiction
The appeal panel determined the use of “the significant impairment test,” which considers if an “employee’s addiction significantly impaired his or her ability to choose to act otherwise,” was problematic. There was no standard definition of “significant impairment” and it didn’t address the potential human rights issue of accommodation, which should accompany an illness such as alcoholism.
The panel developed the “hybrid test,” which allows arbitrators to find a level of addiction somewhere-between an employee having no control over her actions and not having a causal link at all between the misconduct and the addiction.
The hybrid test recognizes a mix of voluntary and addiction driven conduct. Because some amount of the misconduct is caused by the addiction, it opens the door to human rights analysis and a duty to accommodate.
Brian Gooding was employed with the B.C. Liquor Distribution Branch in New Westminster for 26 years, working his way up to the position of store manager. He was considered a very good employee and didn’t have any disciplinary problems.
Gooding had been a fairly heavy drinker since his teen years, but when he had difficulty getting along with the new area manager, he began to get more stressed at work and started drinking more. Every day at the end of his shift, he would have “several beers” and then some whisky in his car before going home. At home, he had some more “stiff drinks” followed by one or two bottles of wine at dinner.
Gooding didn’t have enough money to pay for the amount he was drinking, so he began to take more than he could pay for from the liquor store. At work, he would put beer and spirits in a closet in the warehouse and, at the end of a shift, pretend to pay for it and walk out with it. He claimed he intended to pay for it but would only ever pay for some of the bottles. This took place several times a week for about a year.
Other employees at the store noticed what Gooding was doing and told the Loss Prevention Branch of their suspicions that he was stealing alcohol. The branch investigated and found at least three occasions where he had taken alcohol from the store without paying for it. The branch confronted Gooding on June 18, 1998, and he admitted to taking the alcohol. He also said he had a “severe drinking problem” and needed help. The branch told him of its employee assistance program (EAP) and Gooding entered a detoxification and treatment facility on June 20 and was suspended without pay four days later. He later attended weekly sessions with a drug and alcohol counsellor and attended alcoholics anonymous (AA) meetings twice a week. He reported he didn’t have a drink after June 18.
However, the branch decided to terminate Gooding on Aug. 21, 1998. It claimed his position as a store manager required a significant level of trust and his actions violated that trust and irreparably breached the employment relationship. The union filed a grievance, claiming his stealing was a result of alcoholism and the branch violated his human rights by not accommodating his disease.
In its initial decision, the arbitration board found Gooding was not intoxicated when he committed the theft and while the alcoholism may have been a reason for it, his actions were voluntary.
“These thefts were not impulsive acts but rather premeditated ones. Alcoholism was a contributing factor in the theft of alcohol. However, (Gooding) understood the nature and quality of his acts. He knew it was wrong to steal the alcohol,” the board said.
The board said the same principle applied as would in a criminal case: An addiction is not a defense to criminal charges even where there is a direct connection to the offence. An addiction can be used to mitigate a sentence, but it doesn’t eliminate responsibility.
On appeal, the appeal panel found where there is an addiction that has some relation or “causal connection” to workplace misconduct, there must be some consideration that the employee is not completely responsible for his actions. The panel developed a “hybrid test” (see sidebar) which attributes “a mix of causes, a mix of addiction driven conduct and voluntary conduct.” Once it’s determined at least part of the misconduct is addiction driven, human rights comes into play and there must be some level of accommodation. The panel sent the matter back to the arbitration board to re-evaluate the case using the hybrid test.
“To treat alcoholism solely as a mitigating factor rather than as a physical or mental disability which must be accommodated to the point of undue hardship, would be an incorrect application of the hybrid analysis and the human rights analysis,” the board said.
The board noted stealing and other forms of dishonesty are “one of the most significant employment offences.” In addition, Gooding’s actions were premeditated and took place over an extended period of time. Without the human rights consideration, his misconduct was serious enough to warrant dismissal. However, his alcoholism was a factor and the board conceded it “compels a human rights analysis.”
The fact Gooding was addicted to alcohol and had suffered “adverse treatment” — termination — established, on the surface, some degree of discrimination. The branch argued an alcoholic is capable of understanding right from wrong and should be able to follow a workplace rule against stealing, thus making it not discriminatory to discipline an alcoholic for theft. However, the board accepted medical testimony indicating addiction is a progressive condition in which ethical and moral behaviour deteriorates. It also found Gooding’s confession of the thefts were accompanied by the admission he needed help and his entrance into rehabilitation. This supported the conclusion the thefts were caused by “symptoms related to alcoholism.”
Though the branch didn’t know about Gooding’s alcoholism until his confession when confronted with the thefts, the board found it had the opportunity at that point to accommodate him. Gooding entered a detoxification centre two days later and attended regular counselling and AA meetings after that. However, the employer fired him despite the fact he was successfully undergoing treatment and hadn’t had a drink in the two months since the confrontation. All it had done at that point was inform Gooding of the EAP when he admitted his problem.
Gooding had come up with a scheme for only paying for some of the alcohol he took over an extended period of time, he violated his position of trust and he knew it was wrong to steal. These were elements of responsibility he must assume, the board found. However, it found alcoholism brings a “non-culpable” element into the equation and it is a treatable illness where behaviour can be changed. Gooding demonstrated a desire to change immediately and was showing success that he could.
The board found Gooding had done his duty to accommodate his alcoholism by undergoing treatment but received no support from the Liquor Distribution Branch. As a result, his disability wasn’t accommodated and he was wrongfully dismissed.
The board reinstated Gooding to employment with the branch, but did give consideration to the branch’s concerns of trust. As a result, it stipulated he be given a position without supervisory duties.
“It is fundamental that any addicted employee must, as part of the duty to accommodate, undertake rehabilitation. (Gooding) has done this successfully. (His) dismissal must be set aside as it does not meet the just cause standard both within the context of the hybrid test and the human rights analysis, and in particular, the duty to accommodate,” the board said.
For more information see:
• British Columbia v. B.C.G.E.U., 2007 CarswellBC 1693 (B.C. Arb. Bd.).
The hybrid test for addiction
The appeal panel determined the use of “the significant impairment test,” which considers if an “employee’s addiction significantly impaired his or her ability to choose to act otherwise,” was problematic. There was no standard definition of “significant impairment” and it didn’t address the potential human rights issue of accommodation, which should accompany an illness such as alcoholism.
The panel developed the “hybrid test,” which allows arbitrators to find a level of addiction somewhere-between an employee having no control over her actions and not having a causal link at all between the misconduct and the addiction.
The hybrid test recognizes a mix of voluntary and addiction driven conduct. Because some amount of the misconduct is caused by the addiction, it opens the door to human rights analysis and a duty to accommodate.
