Good news for employers! The Alberta Court of Appeal recently upheld a termination resulting from the violation of its workplace drug policy. The decision in Stewart v Elk Valley Coal Corporation demonstrates the effectiveness of a well-sculpted company drug policy in justifying termination decisions, particularly in the context of human rights obligations relating to the duty to accommodate addictions. In this case, the court appreciated that the employer went to great lengths to a) demonstrate the reasonableness of its policies and b) tie each policy back to the overarching goal of promoting safety in the workplace. This case should prompt a review of workplace drug and alcohol policies to ensure alignment with the court’s guidance.
The Workplace Accident
Ian Stewart was employed as a haul truck operator by Elk Valley Coal Corporation (the “Company“). He was terminated after getting into a workplace collision while under the influence of cocaine, a contravention of the Company’s comprehensive drug use policy (the “Policy“). It was later revealed that Stewart was addicted to cocaine at the time of the incident. Stewart himself was in denial about his addiction at all relevant times. Counsel for Stewart initiated a human rights proceeding on the basis that his addiction constituted a disability, and that his termination was discriminatory under the Alberta Human Rights Act.
The Company Drug Policy
The Policy and its enforcement formed the crux of the dispute. Stewart was aware of the Policy; he attended information sessions only a few months before the workplace accident and had signed a form indicating that he acknowledged and understood the Policy. Under the Policy, employees with a drug habit or addiction were encouraged to voluntarily disclose their drug use to the Company. The Company offered access to support programs and protection from discipline, including involuntary dismissal. The Policy was clear that the same protection from discipline would not be offered if the employees’ drug addiction was revealed after an incident occurred. Even then, discipline (including termination) was not automatic – rather, the Company would act reasonably, taking into account all the circumstances of the case.
The majority decision by the court of Appeal considered two tests. The first test was to determine whether there was an instance of prima facie discrimination, which required it to be shown that:
- Stewart had a disability which is protected under the Alberta Human Rights Act;
- Stewart experienced adverse treatment at the hands of the Company; and
- it was reasonable to infer that the disability was a factor resulting in adverse treatment.
The first two parts of the test were not disputed by either party. The court found that direct discrimination since his termination was not the result of his addiction but the breach of the policy. In this sense, the Policy did not discriminate against Stewart as a result of his addiction because it applied to all employees equally. The majority also found the Policy’s anti-drug position was not indirect discrimination since it was not the result of arbitrariness or stereotypical thinking, but rooted in the fact the Company’s industry is safety-sensitive and operating machinery while under the influence of drugs poses a real risk.
The court noted that Stewart’s breach of the Policy, and the ultimate termination of his employment as a result, was not attributable in any part to his addiction but to his decision not to comply with the Policy by disclosing his drug use. In this sense, his addiction played no part in his termination.
The court recognized that the Policy served a legitimate purpose, namely the deterrent effect of a potential dismissal on employees who would otherwise conceal their drug habit. The court also accepted that if the employer could not legally terminate employees after a workplace incident, this would create an incentive for employees to disregard the Policy. This would, in turn, undermine the goal of securing a safe work environment. Further, the court was buoyed by the Company’s history of re-hiring terminated employees and encouraging voluntary disclosure, which customs contributed towards the Company meeting its duty to accommodate employees.
This case was decided under the Alberta Human Rights Act. However, because it was decided by an appellate court, it is likely to influence decisions made under human rights legislation in all Canadian jurisdictions, particularly those involving employer drug use policies in safety sensitive workplaces. The “voluntary disclosure” aspect of the policy in issue in this case is particularly interesting. We will be following the impact of this decision and will provide further information as it becomes available.
Many thanks to Puya Fesharaki for his assistance in drafting this article.