By Daniel Standing LL.B., Editor, First Reference Inc.
The recent New Brunswick labour arbitration decision in Unifor, Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 38613 (NB LA) tells the unfortunate tale of an alcoholic’s losing battle to overcome his addiction and losing his job in the process. The decision provides helpful insights into how far an employer can or should go in accommodating this disability. The decision will be of particular interest to employers who operate safety-sensitive operations, and to employees who may be uncertain of the role they must play in the search for a reasonable accommodation.
Beginning in 2003, the grievor, J.B., worked as a “third hand” operating the paper machine at the employer’s paper mill in Saint John, New Brunswick. The first sign that J.B. had a problem with alcohol was in 2008 when he told his work that he had been charged with impaired driving. Applying company policy, Irving Paper gave J.B. a non-disciplinary referral to a substance abuse professional. J.B. was charged with the same offence in November 2011, and the company responded in the same way. The substance abuse professional believed J.B. had an addiction and made some recommendations that, if followed, would allow J.B. to return to work safely. In early 2012, the company put the recommendations in the last chance agreement. While J.B.’s treatment was ongoing, the agreement was intended to help control the risk of relapse and help with his rehabilitation. The employer, union and employee signed it.
There were no reported problems until 2018 when J.B.’s attendance started to suffer. He explained that it was due to his treatment for depression but did not mention any struggles with alcohol. When asked if he needed help with anything, he answered that he was receiving all the treatment and help he needed at the time. Less than a week later, he informed the company that he had been in a car accident while impaired by alcohol. Instead of disciplining J.B., Irving Paper referred him for another assessment with the substance abuse professional. At this time, J.B. was registered for a detox program and was given a leave of absence to attend it. After completing detox, he signed a second last chance agreement that was the same as the first one. On the substance abuse professional’s recommendation, he completed a 28-day in-patient program at a rehabilitation centre and signed another last chance agreement. Despite some setbacks during this period, the employer did not discipline J.B., but instead allowed him to pursue his treatments. It continually offered him further assistance, but J.B. replied that he did not need any more help.
October 21, 2019, was not a good day for J.B. That was the day when he was subjected to an unannounced alcohol test, as contemplated by the last chance agreement. The agreement set a threshold blood-alcohol concentration level of zero. J.B.’s levels were 0.034 and 0.028. Having determined that J.B. had reported to work under the influence of alcohol, Irving Paper terminated his employment for cause. Notably, the termination letter stated that “[t]he company is prepared to consider you for employment after 1 year if you are able to prove successful rehabilitation.”
J.B. filed a grievance in relation to his dismissal, alleging both discriminatory treatment and an absence of just cause. At the hearing, however, he did not pursue the latter issue, leaving only the matter of discrimination for the arbitrator to address in his decision.
The arbitrator’s decision
The arbitrator began his analysis by accepting that employers have a legal responsibility to provide a safe workplace and take all reasonable measures to ensure the health and safety of its employees. Alcohol and drug consumption by employees can represent a safety hazard in the workplace. Recognizing these facts, last chance agreements are generally upheld since they represent a significant accommodation for employees facing addictions.
Following the well-established framework for determining whether an employee has suffered discrimination, the arbitrator asked whether J.B. had established a prima facie case. It was easily concluded that he had: J.B. had an alcohol addiction, a protected characteristic under human rights legislation. He had experienced an adverse impact in losing his employment, and third, his addiction was a factor in the adverse impact. This was clear because he was terminated following an unannounced breath test which formed part of the last chance agreement.
At this point, the legal burden shifts to the employer to establish the existence of a bona fide occupational requirement. This requires three things: (a) a standard that is adopted for a purpose that is rationally connected to the job; (b) the standard must be adopted in good faith and honestly in pursuit of that work-related purpose, and (c) it must be reasonably necessary to accomplish that work-related purpose. It was only the third aspect of the test that was in issue; the first two were accepted as having been met.
How could the employer show that the standards set out in the last chance agreement based on recommendations from a substance abuse professional were reasonably necessary? The Supreme Court of Canada has stated that the employer has to show proof that the employee cannot be accommodated without undue hardship. This is always a fact-based analysis. Generally, when an employee with alcohol abuse problems fails at multiple rehabilitation attempts and there is no objective evidence that further attempts would be successful, an employer has accommodated to the point of undue hardship. That is precisely what happened here: The employer made significant and reasonable attempts to help J.B. The employer had done all it could do, but ultimately it was J.B. that caused the accommodation attempts to fail by maintaining a lifestyle that supported his drinking habits.
The union argued that the employer should have tried putting J.B. in a non-safety-sensitive position. But this point was never raised with the employer at an opportune time, nor was it raised in the questioning of the employer’s witnesses at the hearing. The search for reasonable accommodation is a three-party process and the employer could not be faulted for this. For his part, J.B. had “no one else to blame but himself for his lack of commitment to recovery.” The arbitrator found that J.B. lacked a commitment to his treatment programs.
The arbitrator also commented on the last part of the termination letter that showed Irving Paper was prepared to consider J.B. for employment after one year if he successfully completed rehabilitation. This was another effort at accommodation. Even though it had no legal obligation to do so, the company offered the employee a “glimmer of hope.” Ultimately, though, an employee does not have to do everything possible to satisfy its requirement to accommodate to the point of undue hardship. The test is whether the accommodation offered was reasonable. Here, the arbitrator concluded that it was. The arbitrator was clearly troubled by the decision he reached, but it was a decision based on the law. He concluded by expressing his sincere hope that J.B. finds the strength and courage to overcome his addiction.
Takeaways for employers
The accommodation of alcohol or drug dependencies in the workplace is probably one of the most challenging situations an employer may face. Human rights law recognizes addiction as a serious condition that requires constant attention and rehabilitation over a long period of time. The repetitive, cyclical nature of the referrals to professional help, relapses and signing of last chance agreements, in this case, is indicative of the patient and helpful approach that employers should take in these situations.
However, as the arbitrator noted in this case, “the test is not a forward-looking test requiring that the Employer continue looking at possible accommodation forever.” There is an end, and this occurs when the employer has accommodated to the point of undue hardship. Employers facing this situation should carefully document all of their previous efforts at accommodation, along with any evidence of the employee’s response and commitment to treatment or corrective measures. Since the legal test is contextual and individualized, any number of factors could play into the undue hardship analysis. Fundamentally, all parties need to remember that they play a critical role in how the process is supposed to work and if they fail in their obligations, it will be to their detriment.