Employer Cannot Turn Blind Eye to Employee’s Disability
By Daniel Standing LL.B., Editor, First Reference Inc.
A recent decision of the Human Rights Tribunal of Alberta, Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94, confirms the law on accommodation of alcohol addiction. In this case, the human rights complaint of a dismissed employee was upheld. The Tribunal offers important advice to employers in how to deal with such difficult situations. The risk in not doing so is potentially costly: in this case, $30,000 in general damages, lost short-term disability benefits, lost wages and interest were awarded.
The complainant, Johnathon Kvaska, worked as a commission salesperson in a car dealership. When he was hired 14 months before his dismissal, he advised that he did not have a driver’s licence because of an alcohol-related driving offence. His drinking affected his performance. He went to work drunk every day and his wife noticed that he was visibly drunk every day when she picked him up from work. He became increasingly concerned that he would lose his job, and reached out for help. He asked his manager about the possibility of a medical absence and obtained disability benefit and leave forms, but did not directly advise his manager about why he wanted the forms. One day, Mr. Kvaska came to work late “black out drunk,” interrupted a staff meeting and acted belligerently toward the general manager. He was sent home, and when he called before his next shift, the manager told him not to come in. He was terminated at a meeting a few days later. Post-termination, he sought rehabilitation treatment.
The Tribunal’s analysis
The Tribunal explained that human rights cases have two separate burdens of proof. First, the complainant must establish his case by showing that he had a disability, he suffered an adverse impact and that his disability was a factor in that adverse impact. If he successfully proves these three elements, the burden of proof shifts to the employer to prove a defence. Here, the question is whether the employer accommodated the complainant to the point of undue hardship.
First, as to the complainant’s burden of proof, the Tribunal found that Mr. Kvaska had a disability. This conclusion flowed from various elements of evidence, such as the high volume of alcohol he consumed daily, the uncontradicted evidence that staff and management observed Mr. Kvaska impaired at work, and his severe impairment in the workplace on the day he created a disturbance. By virtue of his termination, he suffered an adverse impact. Finally, the Tribunal determined that Mr. Kvaska’s addiction was a factor in his termination. As part of its analysis on this point, the Tribunal determined that the employer knew or ought to have known about Mr. Kvaska’s disability and that it may have impacted his performance. This is an important point because it meant that the employer had a duty to inquire whether Mr. Kvaska suffered from a disability that affected his performance before it terminated his employment.
The Tribunal found that Mr. Kvaska advised the manager directly during his termination meeting that he had an addiction and requested the opportunity to seek rehabilitation treatment. Instead of inquiring further, the employer proceeded with the termination. This constituted a failure in its duty to inquire. Having established a prima facie case of discrimination, the legal burden then shifted to the employer to establish a defence.
The employer argued that it could not have reasonably accommodated Mr. Kvaska due to the nature of the job, which involved operating motor vehicles on the employer’s private lot. While it was acknowledged that this posed a safety risk, there was no evidence that the employer accommodated to the point of undue hardship. The Tribunal was particularly critical of the employer having taken no steps at all to consider accommodation. Importantly, this did not mean that the employer had to accept a serious safety risk in the workplace. However, it needed to investigate options, including Mr. Kvaska’s request for a medical leave of absence to seek rehabilitation treatment. Since the employer failed to do this, the Tribunal could not conclude that continuing to employ Mr. Kvaska or granting him even a lengthy leave of absence would have created an undue hardship.
Having accepted the complaint, the Tribunal turned its focus to the issue of remedy. First, it considered general damages for injury to dignity, feelings and self-respect. A review of jurisprudence on the subject revealed that monetary compensation under this head of damages is intended to recognize that the injury to a person who experiences discrimination is more than just quantifiable losses like lost wages. Discrimination can vary in its seriousness and in its effect on a particular complainant. Many factors may enter the equation, such as a particular vulnerability of the complainant, the severity of the incident, the duration or repetition of discriminatory events, the consequences to the victim and the employer’s response. The Tribunal noted that many recent Tribunal decisions have fallen in the $20,000 to $25,000 range. Gone are the days when $10,000 was seen as a de facto cap on general damages. A global review of the factors, including the loss of employment and the significant impact on Mr. Kvaska, led the Tribunal to award $30,000 in general damages for injury to dignity.
The Human Rights Act expressly authorized an award of lost wages incurred as a result of discrimination, which is intended to make the complainant whole. The question is the amount of wages a complainant has lost as a result of the discrimination. This is different from determining what reasonable notice is in a wrongful dismissal case. The goal here is to put the complainant in as close as possible to the position they would have been in if the discrimination had not occurred. The Tribunal found that had he been supported and allowed to attend treatment while he remained an employee, Mr. Kvaska would have been able to stay sober and contribute to the workplace for about six months. After that, he may have left due to relapse or because he found the workplace stressful (as he testified). Therefore, the Tribunal awarded him lost wages for the six months following his rehabilitation treatment.
Lastly, the Tribunal determined that Mr. Kvaska did not fail in his duty to mitigate his losses. It found that it was unreasonable to expect him to have mitigated his losses in the three months following his termination since he needed treatment during that time period. After that, he did some manual labour jobs but earned far less than he previously did. The discrimination had a marked impact on him, and he had done his best to mitigate his losses. Judgment interest was also added from the date of the complaint to the date of the Tribunal’s award.
It is understandable that employees who are addicted to alcohol pose serious problems for employers. Particularly where the workplace is one that directly serves customers or is safety-sensitive, employers may be tempted to institute a “zero tolerance” policy, under threat of termination of employment. Such a policy or approach is likely to be contrary to human rights laws, however. When an employer sees signs that objectively point to a disability that affects an employee’s performance at work, it has a legal duty to inquire as to whether there is a link between a possible disability and the employee’s performance. A failure to do so exposes it to a high likelihood that it will be found not to have discharged its duty to accommodate the employee with a disability. Aside from the potentially irreparable harm that can be done to the employee, the employer opens itself up to a potentially sizeable damages award, together with other quantifiable losses suffered by the victim of discrimination. Legal advice from a trusted employment lawyer can help employers navigate this tricky type of situation.
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