Written wholly by Cristina Lavecchia, Editor at First Reference
The issue in this matter was whether or not the employee was terminated for just cause. It was the employer’s position that it properly terminated the employee for just cause. That is, the employee was absent without leave for a four-week period, the employer attempted to contact the employee to no avail, and the employee failed to contact the employer or provide any information of a medical nature to explain his absence. The Arbitrator in this matter, however, did not quite agree with the employer. In essence, the Arbitrator expressed that the employer should have done more as it knew that the employee had a problem with alcohol. The employee was reinstated into his position of part-time grocery clerk.
In this case, the employee was absent from work due to his alcoholism. He had entered a treatment facility from May 18 to the date of his termination, which was June 12, 2015.
The Arbitrator in this matter notes that the evidence of the employee’s struggle, both pre and post termination, did clarify the reasonableness of his dismissal. This struggle, however, confirms that the employee was struggling with the disability of alcoholism before and after his termination.
The employer claimed that the employee had the mental capacity to call in and inform them of what was happening, but chose not to. The employer argued there was no connection between his disability and his conduct of not calling. According to the employer, the employee’s actions were not attributable to his alcoholism but rather to his indifference to his job, which is not a protected ground under a duty to accommodate.
The Arbitrator, however, did not agree with the employer. The Arbitrator concluded that there was a prima facie case of discrimination for the following reasons:
- The very reason for the employee’s absence without leave was his relapse to drinking.
- Alcoholism is generally accepted as an illness under the Alberta Human Rights Act.
- The employer was aware of the employee’s disability. It, therefore, had a duty to accommodate him, and it had failed to accommodate his disability to the point of undue hardship.
- There was no evidence of undue hardship from the employer. It could have accommodated the employee by giving him an unpaid leave of absence until he was fit to return to work. “Even if all the post-termination evidence is discounted, the fact remains the Company had a duty to accommodate the Grievor at the time of his termination” (paragraph 95 of decision).
- Testimony showed that an aspect of the employee’s disability was taken into consideration by the employer when it made its decision to terminate him. One testimony exhibited that one of the factors considered, when deciding to terminate the employee, was the lack of evidence from the counsellors or clinicians who were treating the employee that he would be successful in his job if he returned.
Takeaways for employers
While the Arbitrator acknowledged that the employee should have contacted his employer to explain his absence and that the employer “did what they considered reasonable at the time,” the employer “should have put their mind to the likely cause of [the employee’s] absence from May 15, 2015, onwards. They knew he was suffering from alcoholism and should have carried out a more complete and thorough investigation as to the cause of his absence…. With those suffering from the disability of alcoholism, relapses are, unfortunately, an all too often occurrence.” See paragraph 96 of decision.
This case supports the sentiments expressed by the Alberta Human Rights Commission:
“An employer must examine options to accommodate an employee’s disability up to the point of undue hardship… If the employer terminates the employee without exploring and assessing the accommodation options, then the employee may have the basis for a human rights complaint.” See page 2 of Information Sheet