You Make the Call
This instalment of You Make the Call features a worker who was fired after violating a last-chance agreement related to the worker’s alcohol problems.
The worker was hired as a caretaker with the Toronto District School Board (TDSB) in 1996. She had no discipline on her record for 19 years until 2015, when she was in an abusive relationship and started abusing alcohol. Her alcohol abuse caused her frequent absences, leading to her missing almost 40 per cent of her shifts in 2015. Her attendance improved in 2016, though she still missed almost one-quarter of her shifts that year.
On Feb. 15, 2017, the TDSB met with the worker to discuss her problems, as at that point she had missed 87 per cent of her shifts since the beginning of January after she had reunited with her abusive partner. The worker agreed to enter a residential treatment facility for her alcohol addiction, but the TDSB didn’t receive documentation proving her treatment. Without the proof of treatment, it suspended the worker’s sick pay.
The worker provided the necessary documentation of treatment on April 3 and the TDSB reinstated sick pay retroactive to Feb. 27. The following week, on Apr. 14, the worker and her union agreed to a last chance agreement that required the worker to enter a residential alcohol treatment program, attend Alcoholics Anonymous meetings daily until entering the program, and avoid consuming any alcohol or drugs at any time before or after reinstatement. The worker also had to provide written proof of successful completion of the program and a prognosis for continued abstinence. Finally, the worker had to enrol in an after-care program and for one year following reinstatement and she had to submit to random urine samples and breathalyzer tests as well as assessments by an alcohol addiction specialist. Any breach of these provisions would lead to the worker’s discharge “and will satisfy the just cause provision of the parties’ collective agreement.”
The worker entered a three-week residential treatment program around the same time, but didn’t return to work or contact her supervisor until May 23, when she provided a doctor’s note advising of her continued absence from work until the end of May. However, by June 1 she didn’t return to work or contact her supervisor.
The TDSB wrote to the worker requesting documentation of the completion of her treatment program and supporting her absence, and a meeting on June 7 where she could be evaluated by an alcohol addiction specialist as per the agreement. The worker had a doctor’s appointment scheduled for that day, so she requested a new meeting date. The TDSB had arranged for a technician to administer a urine test that day, so it refused to reschedule.
The worker refused to submit to a test administered by the TDSB — characterizing the request as harassment — and said she would supply her own. When she failed to attend the meeting, the TDSB terminated her employment, claiming it had accommodated the worker to the point of undue hardship and the worker breached the last chance agreement.
You Make the Call
Was termination the wrong call?
OR
Did the employer have just cause to terminate the worker’s employment?
If you said the employer had just cause to terminate the worker’s employment, you’re right.
The arbitrator noted that the last chance agreement could not be the final authority when there was a collective agreement with its own just cause provision in play. However, the arbitrator found that before the last chance agreement was executed, the worker’s attendance was “far below the minimally acceptable level of attendance,” and the TDSB had accommodated the absences and provided sick pay through various leaves and relapses since 2015. In fact, the last chance agreement itself was a form of accommodation when the worker had reached the point of dismissal and the TDSB had reached the point of undue hardship, the arbitrator said.
Alternatively, the arbitrator found that the worker breached the last chance agreement by failing to complete the residential treatment program or provide proof of treatment, failing to submit to an assessment by an addiction specialist, and refusing the testing required in the last chance agreement. In addition, the evidence pointed to the fact the worker continued to consume alcohol.
The arbitrator determined that the TDSB accommodated the worker to the point of undue hardship and upheld the termination of her employment.
For more information see:
•Toronto District School Board and CUPE, Local 4400 (X), Re, 2018 CarswellOnt 7157 (Ont. Arb.).
