No discrimination found in 2005 dismissal
In a recent decision, the Supreme Court of Canada has confirmed that the termination of an employee with a disability is not necessarily a breach of human rights.
The June 15 ruling found there was no prima facie discrimination when it came to the dismissal of a man who said he had an illegal drug addiction.
There’s no doubt this is an employer-friendly decision in an area not typically known for them, said John Batzel, a partner at Bennett Jones in Calgary.
“Really, it puts the onus on employees to disclose their substance use or misuse that could reasonably lead to impairment on the job, and that’s even the case where addiction is an issue… and if an employee fails to comply with an employer’s disclosure policy, they can be terminated.”
The case involved Ian Stewart who worked at the Cardinal River mine in Alberta, operated by Elk Valley Coal.
Looking to maintain a safe work site, the company had implemented an Alcohol, Illegal Drugs & Medical Policy that expected employees to disclose any dependence or addiction issues before any drug-related incident occurred.
If so, they would be offered treatment. If not, they would face termination. Stewart attended a training session reviewing the policy and signed a form acknowledging his understanding.
Stewart used cocaine on his days off but did not inform his employer. When his loader was involved in an accident in October 2005, he tested positive for drugs and later said he thought he was addicted to cocaine.
Nine days later, Elk Valley terminated his employment, but Stewart argued, through his union, that he was terminated for being addicted and this constituted discrimination.
The Alberta Human Rights Tribunal disagreed, saying Stewart was terminated for breaching the policy, not because of his addiction. This was confirmed by the Alberta Court of Queen’s Bench, the Alberta Court of Appeal and, more recently, the Supreme Court of Canada.
A majority — six — of the justices said the appeal should be dismissed: “The reason for the termination was not addiction but breach of the policy. On the facts of this case, the tribunal concluded that (Stewart) had the capacity to comply with the terms of the policy and that he would have been fired whether he was an addict or a casual user. It was therefore not unreasonable for the tribunal to conclude that there was no prima facie discrimination.”
While Stewart may have been in denial about his addiction, he knew he should not take drugs before working and had the ability to decide to take them, as well as the capacity to disclose his drug use to his employer, said chief justice Beverley McLachlin, who cited the termination letter as further evidence Stewart’s addiction was not a factor in his dismissal.
Stewart v. Elk Valley Coal Corp. presents an opportunity for employers to “plug in some of the gaps” created by recent decisions where courts have put significant limits on an employer’s ability to conduct, in particular, random testing, said Batzel.
“Even if your ability to random test employees in a safety-sensitive workplace is limited, you as the employer may still really be able to get to the same place by requiring employees to disclose their own substance use that could lead to impairment, with the possibility of dismissal if they don’t voluntarily disclose,” he said.
“This decision potentially is creating a very useful incentive structure to promote self-disclosure of substance use and misuses, rather than disclosure through invasive testing by the employer.”
Lack of discrimination
To prove prima facie discrimination, three elements must be established: the complainant has a characteristic protected under the human rights code; the complainant experienced adverse impact with respect to the service; and the protected characteristic was a factor in the adverse impact, said Shivani Chopra, an associate at Hicks Morley in Toronto.
While the majority found that the first two elements were met (addiction is considered a disability), they concluded the adverse impact (termination) was not the result of Stewart’s disability but because he failed to comply with the terms of the safety policy, she said.
The fact that Stewart had a disability was not a factor in the termination, said Chopra.
“What led to the termination was failure to follow a workplace safety policy that required him to disclose drug dependence, i.e., his disability, prior to the occurrence of a major incident,” she said.
“Safety is a very important consideration in workplaces, and human rights legislation as well as the courts seem to be willing to support employers when employees are being terminated for breaching the safety policies — regardless of the disability.”
It’s one thing to have a policy that just sits in the desk and workers are not aware of, said Chopra.
“In this particular instance, the employees were trained on the policy and they had signed an acknowledgement saying they were aware of its terms. I think that played a critical role in the majority ruling the way it did.”
And the termination letter was clear enough in stating Stewart was terminated because he failed to disclose his addiction, in accordance with the policy, she said.
But Jennifer Koshan, a law professor at the University of Calgary, questioned aspects of the ruling.
Part of the problem was Stewart claimed he didn’t realize he had an addiction, and didn’t think he had a duty to disclose, she said.
“It’s hard to see how he could have acted differently in this case. The majority of the court said he did have some capacity to make decisions around his drug use but I think it’s important to note on the facts that his drug use was actually two days before he was back on the job and he did still have residual drugs in his system. There was no evidence his drug use caused the accident,” said Koshan.
“The case does show the potential unfairness to employees of these sorts of policies where they may be not able to disclose addiction to drugs or alcohol because of the very nature of the disease that they have.”
The Supreme Court kept framing its reasoning in terms of this idea Stewart wasn’t fired because of drug use, but rather for breached policy, she said, “but to think about it in those terms really does focus on the employer’s reasons for firing him, rather than what the effect of the employer’s decision to terminate his employment was, which… was adverse-effects discrimination based on his drug dependency.”
“I have a really hard time seeing how his disability wasn’t a factor in his termination because it was only because of his addiction and his drug use that he breached the policy.”
The general trend in jurisprudence has been to look at each case individually, said Koshan.
“What (Elk Valley) really seems to do is to give more credence to the need for the policy and the deterrent effect the policy supposedly is going to have on drug use in the workplace, rather than looking at it from the perspective of the individual employee. And I think jurisprudence suggests it should be a more individualized approach.”
Takeaways for employers
It’s challenging for an employer to try to accommodate an employee’s disability if it doesn’t know the employee has an addiction, said Batzel.
“That’s a concern employers have had for long time now. This obligation they have in certain circumstances to assist employees to overcome dependency really is from a common-sense perspective, or should be dependent on their being informed there’s a problem in the first place, and I think this decision and a policy that follows it will assist with that.”
Self-disclosure policies are still rare but are something employers should be looking closely at, he said. “We’re of the view that the policy should include a self-disclosure component, particularly when you’re dealing with a safety-sensitive workplace.”
Elk Valley may provide comfort to employers with safety policies requiring employees to self-disclose addiction, said Chopra.
“That said, employers who operate unionized, safety-sensitive workplaces, and who wish to implement drug and alcohol policies incorporating some form of universal random testing, must understand that testing is permitted in very rare and limited circumstances and, when done, testing should be part of a policy that incorporates principles of health and safety, prevention, accommodation and rehabilitation.”
The decision gives a fair amount of scope to employers that want to implement drug and alcohol policies to offer a self-reporting clause, said Koshan.
“They still need to be careful about employees with addictions, because even the majority of the Supreme Court said there will be some cases where employees with addictions who can’t control drug use don’t have the capacity to control that and report. So, in those cases, it may be that a finding could be made (that) the employer hadn’t fulfilled its duty to accommodate.”
And lesser penalties might be a good consideration, she said.
“That strikes a better balance between the rights of employees and the interests of employers, to think about sanctions short of termination, particularly where you have a workplace accident that’s relatively minor, you have an employee with a clean and long record of service,” said Koshan.
“Termination cannot be seen as having fulfilled the duty to accommodate and, in this case, (Stewart) could have been suspended from his employment, allowed to take drug treatment, had his position maintained for him and therefore his seniority level and level of benefits maintained.”
Differing views from court
Two Supreme Court justices in Elk Valley felt the tribunal had been unreasonable in concluding Ian Stewart’s drug dependency was not a factor in his termination.
“To prove prima facie discrimination, (he) is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, he must only show that there is a connection between the protected ground — his drug dependency — and the adverse effect. His exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a factor in his termination,” said Justices Michael Moldaver and Richard Wagner.
However, they did feel the tribunal was reasonable in deciding Elk Valley met its obligation to accommodate Stewart to the point of undue hardship.
“Given the employer’s safety objectives and responsibilities at the coal mine, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences,” they said, and another disciplinary measure would have undermined the policy’s deterrent effect.
“Incorporating these aspects of individual accommodation would result in undue hardship.”
However, Justice Clément Gascon disagreed on both fronts, saying there was both discrimination and a lack of accommodation.
“A drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence,” he said. “Drug dependence was a factor in (Stewart’s) drug use, so the policy under which (he) was terminated for using drugs is prima facie discriminatory.”
As for accommodation, Elk Valley’s only effort was letting Stewart voluntarily disclose his disability without discipline, but it appears he was unaware of his addiction, said Gascon. And after termination, Stewart was allegedly accommodated by being given the prospect of re-applying for his position.
“But accommodation assists employees in their sustained employment, not former employees who may, or may not, successfully re-apply for the position they lost as a result of a prima facie discriminatory termination.”
