Mosaic Potash Esterhazy Limited Partnership V. Unifor Local 892, 2015 SKQB 391
This case, which was a judicial review of an arbitral award, involved a form of settlement agreement known as a "last-chance" agreement.
Mosaic Potash Esterhazy Limited Partnership initiated a drug and alcohol testing program at its mine. An employee who worked in a "safety-sensitive" position tested positive for alcohol well over the legal limit, and, after receiving an assessment under Mosaic's Employee Assistance Program, again tested positive for cannabinoids. The employee was issued a last-chance agreement, which set out that the failure of another drug test would be sufficient grounds to terminate his employment. He tested positive a third time for the presence of alcohol and was terminated.
Unifor Local 892 brought a grievance on behalf of the employee, arguing that he was fired on the basis of a substance abuse disability, which is a recognized disability in The Saskatchewan Human Rights Code. The arbitrator determined that she was not bound by the last-chance agreement because it did not form part of the collective agreement, and even if it did, it improperly attempted to limit the employee's right to accommodation for his disability under the Human Rights Code. She also concluded that Mosaic had failed to accommodate the employee.
Mosaic sought judicial review of the arbitrator's decision. The Saskatchewan Court of Queen's Bench dismissed Mosaic's application, holding that, although it did not agree with all of the arbitrator's findings, the standard of review was reasonableness and the arbitrator's conclusions were reasonable. In doing so, the Court noted in obiter dicta that, among other things, it is not open to parties to contract out of human rights legislation. The arbitrator was correct to conclude that the last-chance agreement was an impermissible attempt to fetter her jurisdiction by pre-determining the result of her inquiry in a way that would diminish the grievor's protection under the Human Rights Code.
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