An employee with a long history of substance abuse issues and
absenteeism was properly dismissed after he attended at work while
impaired, an Ontario arbitrator has decided.
The employee worked as a janitor in the subway system in
Toronto. He suffered from drug and alcohol addiction and had a
criminal history. His absenteeism record was described as
"extreme" with more than 100 days of absence in one
The day after he "got smashed" at a wedding reception,
the employee attended at work in an impaired state. His eyes were
glassy and he was waving his arms around and making noises that
sounded like a quacking duck. He was dismissed for being unfit for
duty at work.
The collective agreement specifically provided that that the TTC
may discharge an employee for "Being impaired while on duty by
reason of consumption of an intoxicating beverage, or drug for
other than medicinal purposes" and that "[i]f the factual
basis is substantiated, the Arbitration Board shall not inquire
into the propriety" of the discharge. Based on that provision,
the arbitrator held that because the employee was impaired at work,
the arbitrator had no authority under the collective agreement to
overturn the discharge or impose a lesser penalty.
The next question was whether the TTC had satisfied its duty to
accommodate the employee's disability – alcohol and drug
dependancy – under the Human Rights Code.The
arbitrator decided that the TTC had already accommodated the
employee to the point of undue hardship by: tolerating very high
levels of absenteeism over several years; providing him with sick
benefits to enable him to attend several rehabilitation programs;
giving him extensions of time to comply with the grievance
procedure; giving him a mandatory referral to an addictions
counsellor; and retaining him in its employ even though he had
violated a last chance agreement. His absenteeism affected his
department and his co-workers, who had to pick up the "safety
critical type of activities" that the employee's absence
created. His absences also imposed a significant burden on
management (taking ten times the effort of managing other
As such, despite the employee's admirable efforts to
overtime his alcohol and drug dependency, requiring the TTC to
reinstate the employee would impose undue hardship on the TTC. This
case illustrates that "undue hardship" can indeed be
proven based on excessive absenteeism and the resulting effect on
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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