Canada: Would Casey Jones Get A Second Chance Today? Arbitrator Reinstates Locomotive Engineer After Incident Involving Alcohol On Duty

Last Updated: March 1 2019
Article by Kelsey Orth

As many employers know, the accommodation process is far from simple.  Then, when you put the duty to accommodate in the context of discipline, it becomes even more complex and difficult to get right.  However, as a recent arbitration decision illustrates, an employer who ignores the concept of accommodation altogether does so at its own peril. 

The very first paragraph of Arbitrator Graham Clarke's decision in Canadian Pacific Railway and Teamsters Canada Rail Conference Case No. 4667 seems straightforward:

CP terminated locomotive engineer (LE) Greg Paisley on September 15, 2017. The parties did not dispute that LE Paisley had brought alcohol onto his train and had later consumed some of it during his tour of duty.

What more do you need? Termination justified, one might think: a safety-sensitive position and a clear violation of company policy, not to mention a violation of Criminal Law.  However, when issues of discipline and disability mix, employers must be circumspect in their approach. 

In this case, although Mr. Paisley admitted to possessing and consuming alcohol while on duty and operating a locomotive under the influence – and was subsequently found to have been intoxicated beyond the legal limit by a breathalyzer test administered by the RCMP – he took responsibility for his misconduct and also disclosed to his employer that he suffered from alcohol abuse.  The Employer argued that termination was warranted on the grounds that:

  • His alcohol addiction was only disclosed following his dismissal; and
  • Regardless, there was no causal connection between any disability Mr. Paisley may have had and his actions in transporting and consuming alcohol while on duty and operating machinery under the influence of alcohol, in clear violation of company policy.

If this sounds familiar, you probably read Jay Rider's blog in this space on January 31, 2019 commenting on the Sunnyside Home case.  There, reinstatement was ordered for a nurse who stole narcotics and engaged in resident abuse at a long-term care home in Waterloo, where the Employer (the "LTC" referenced below) made similar arguments:

The LTC argued that DS had not disclosed her addiction and that it was unaware of DS's addiction when it terminated her employment.  The LTC also argued that DS's termination was based solely on her misconduct and egregious breaches of employer policy.  The LTC further submitted that it had in no way discriminated against DS or failed to accommodate her because she was treated no differently than any other non-addicted employee who engaged in serious theft, dishonesty and resident abuse would have been.

As we know, in that case the Grievor was reinstated, just as Mr. Paisley was in the instant case.  In both decisions, the arbitrators cited a failure in the procedural duty to accommodate: because the employer did not even explore accommodation upon learning of the disability – narcotic addiction in Sunnyside Home and alcohol addiction for Mr. Paisley – improper discrimination was found to have occurred and the employers' respective justifications for the discipline fell flat, leading to the reinstatement of each grievor.

However, Mr. Paisley's reinstatement did diverge from the reinstatement of the Grievor in Sunnyside Home in 2 important ways:

  1. No compensation or back pay was ordered for Mr. Paisley; and
  2. Mr. Paisley was not put back in the same position, but rather ordered to be placed in a non-safety-sensitive position and had severe conditions placed on his ongoing employment including:

    • Confirmation of fitness to work;
    • Requirement to abstain from consumption of alcohol or drugs for the duration of his employment;
    • 2 years of random, unannounced testing;
    • Any violation will result in termination.

Although it may still be difficult to reconcile such an egregious and dangerous breach of company policy and lapse in judgement with continued employment, what employers can take away from this decision, and others like it including Sunnyside Home, is that the moment a disability is disclosed, any disciplinary process has to be suspended while the employer examines the effect such a disability might have on the grievor, his or her misconduct and the disciplinary process itself. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions