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 year.
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 employees).
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 the employer.
Amalgamated Transit Union Local 113 v. Toronto Transit Commission, 2012 CanLII 51356 (ONLA)…