There is an old, and somewhat cynical saying, that no good deed
goes unpunished. While I personally disagree with that saying, one
employer must believe it after a decision it received.
In the case, an adjudicator reinstated an alcoholic employee who
was dismissed after he was found to be under the influence of
alcohol at work. The employee had previously been disciplined
for alcohol consumption, lateness/absenteeism and abandoning his
shift, and on one occasion had entered into a "last chance
The employee worked for a New Brunswick government agency
filling orders for supplies destined for hospitals. His work
environment of "stores" was said to be
safety-sensitive. In April 2014, two coworkers complained to
a supervisor that the employee had been "drinking
again". The supervisor asked the employee, "are you
drunk?" but received no response. The employee smelled
of liquor. He later saw the employee "drifting down the
hallway", staggering to one side. After the
employer concluded that the employee failed to provide an
explanation for being under the influence of alcohol and had not
taken responsibility for his conduct, the employer later terminated
The adjudicator held that the employee, as an alcoholic,
suffered from a "disability" for the purposes of human
rights legislation. The adjudicator recognized that many of
the employee's coworkers had suffered anxiety and stress as the
"struggled emotionally to deal with the situation they
faced" due to his alcohol abuse. The employer had been
"more than patient for many years" and was "entitled
to a productive and effective contribution from each of its
employees each and every day" and did "not always get
that" from the employee.
However, the employer was had given the employee some
"leeway" in its responses to his absenteeism and
drinking. Rather than being "steadfast" in its
warning of further discipline and following through on warnings,
the employer showed "compassion". The adjudicator
expressed concern that that approach created the general impression
in the mind of the employee that the threat of dismissal was not
serious – that is, that the employer's compassionate
approach would continue. Effectively, the employer's
approach had led to the "shepherd boy crying
'wolf'" phenomenon: the employee may not have believed
that the employer would follow through on its warnings.
Further, there were no aggravating circumstances; in particular,
there was no aggressive behaviour from the employee in the incident
that led to his dismissal. As such, the adjudicator held that
the dismissal was excessive and that the employer had not yet
approached the point of "undue hardship" in accommodating
the employee's alcoholism.
The adjudicator set aside the dismissal, and instead imposed a
30-day suspension followed by a leave of absence without pay for 16
months during which the employee could complete a
detox/rehabilitation program. Also, his return to work would be
subject to a last chance agreement to be negotiated by the
parties. If the employee did not complete the
detox/rehabilitation program in 16 months, his employment would
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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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