Q&A





	Questions from the seminar . . . Q & A about drugs and alcohol at work. Participants attending my seminar held recently in Vancouver, BC asked these relevant questions: Q: *Will our "zero tolerance" policy prohibiting any* use of alcohol or other drugs hold up in court?** A: Here is a checklist of what a Canadian court will consider when deciding on the validity of your decision to dismiss an employee for alcohol or other drug use at work: Is the behaviour of the worker potentially harmful to the employer? Has there been actual harm to the business or its reputation? Does the employee have a good performance record? Is the employee experiencing personal problems that may explain short-term unacceptable behaviour? Have you, or your organization, condoned the behaviour that your are now complaining about? Examples of condonation are: encouraging social drinking during work hours, accepting the use of alcohol or other drugs as normal workplace behaviour, failing to confront obvious substance use. Q: My manager insists that we cannot terminate union employees for drinking or drug use because the union will protect their jobs. Is this true? A: Managers need to be aware of the "terms of employment" for each employee found in their contract of employment. Union workers have the terms of their employment conveniently available to their managers in the form of the collective agreement. Non-union workers often have both written and verbal contracts of employment that contain both express and implied terms. Company policies form part of the terms of the employment contract. One incident of intoxication at work is just cause for dismissal even in a union environment. One such case involved Mr. Rose who was clearly intoxicated while at work. He was working the night shift as a "rigger-foreman," at a shipyard and supervising five workers. The Newfoundland Court of Appeal agreed that the immediate termination of Mr. Rose was justified for these reasons: The collective agreement between the union and the employer clearly expressed the policy prohibiting alcohol consumption at work. The company had a policy that any consumption of alcohol at work is cause for immediate termination. The policy was clear and in writing. The employee was a supervisor and knew or should have known about the policy. It was part of his job to ensure that other workers did not drink alcohol at work. Q: I employ a manager who does an excellent job. However, the manager frequently drinks to excess both publicly, in our small community, and at company social events. Is the company justified in speaking to this employee about this behaviour? A: The use/abuse of alcohol or other drugs, intoxication or resulting unacceptable behaviour, does not have to happen at work. Behaviour that clearly illustrates undesirable character traits of an employee may be grounds for termination. In the case of Bell v. General Motors of Canada, the Ontario courts decided that behaviour occurring away from the workplace, and outside of work hours, may be just cause for termination depending on the specific circumstances of each incident. In this case, Mr. Bell, a supervisor, regularly consumed alcohol while at work and yet his employer had never reprimanded him. It appeared as if his drinking did not affect his work. One evening, after consuming massive amounts of alcohol, Bell met with a female subordinate at his home. He and the employee had been romantically involved. Later that evening, Bell assaulted the employee. The court explained that the termination of Mr. Bell, for cause, was justified. The rationale for its decision, said the court, was not based only on his totally unacceptable behaviour but also on the revelation, " . . . that he is capable of it." Q: I have heard that a court will turn a blind eye when senior employees abuse alcohol or other drugs. How is this fair? A: Courts do not "turn a blind eye." Recall what the court said in the Bell case about behaviour indicating the character of a person. character. A record of long service and excellent performance of an employee speaks to the potential for positive behaviour. A court will take this positive behaviour into consideration when deciding if your decision to terminate the employee was lawful. The decision in the following case illustrates this point. Robinson worked for the Canadian Tire Acceptance Corporation in Nova Scotia for ten years and had an exemplary work record. All of a sudden he began acting irresponsibly, being absent from work excessively. As it turned out, he was involved in an extra-marital affair that eventually led to his excessive drinking and eventual hospitalization for emotional collapse. The Nova Scotia Court of Appeal decided that the employer did not have just cause for dismissal considering Robinson had a lengthy and exemplary service record. The Court said the period of unacceptable behaviour, " . . . was short compared to his ten years of service to the company." Q: Customers have told me one of my customer service reps frequently smells like he has been drinking. What can I do without breaking the law? A: You cannot automatically dismiss an employee just because he smells of alcohol or shows other signs of intoxication. Where a customer is affected adversely by an employee’s behaviour it is reasonable to argue his use of alcohol has "affected his ability to perform his job." Your situation is a perfect example of the need for open lines of communication, frequent performance appraisal and documentation, documentation, documentation. When an employee of Algoma Steel Corp. came to work with alcohol on his breath he was terminated for cause even though he was capable of carrying out his duties. The court decided that Algoma did not have just cause to terminate the employee, " . . . unless the consumption of alcohol affected his ability to perform his job." Q: How do I "accommodate" an employee who threatens the safety of others with drunken and drug-addicted behaviour? A: When a manager is faced with deciding when addiction is just cause for termination, she must follow the provisions of human rights legislation. Addiction to alcohol or another drug is firmly established in law as a physical and mental disability. Employers therefore must accommodate the addiction to the point of "undue hardship". I will expand on your legal duty to accommodate disabilities and the meaning of "undue hardship" in my next article. The case of Visentin v. Shell Canada illustrates the point that persistent unacceptable behaviour is just cause for dismissal despite the employee’s alcoholism. Mr. Visentin worked as an operator in a gas field in Alberta. He displayed erratic behaviour on several occasions and acted negligently in that he showed a disregard for the safety of his co-workers. He enrolled in the company Employee Assistance Plan (EAP) but failed to stop drinking and his erratic behaviour continued. Visentin was never actually drunk at work. Nevertheless, the Alberta courts upheld the decision to terminate his employment for these reasons: Mr. Visentin is an alcoholic. He failed to successfully participate in treatment for his disease. His erratic behaviour had a cumulative negative effect on his performance He was a serious safety threat to himself and others.


	Copyright 2008 Andrew Lawson All information on this site is of general application and not to be considered legal advice. Consult your own legal advisor.

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