Canadian Lawyer InHouse

15 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2017 Workplace Solutions By Norm Keith T he Supreme Court of Canada recently ruled that an employer may terminate a worker for just cause when he violated a fit- ness for duty policy by attending work un- der the influence of drugs. This landmark decision upheld a ruling of the Alberta Human Rights Tribunal that the employer did not unlawfully discrimi- nate when a worker's employment was terminated for breach of a safety rule that prohibited a worker from being under the influence of alcohol or drugs at work. In Stewart v. Elk Valley Coal Corp., "S" worked in a mine operated by the Elk Valley Coal Corporation, driving a large loader. Maintaining a safe worksite was a matter of importance to the employer and employees. The employer implemented a policy requiring employ - ees disclose any dependence/addiction issues before any drug-related incident occurred. If they did, they would be offered accommodation and treatment. However, if they failed to self-disclose and were involved in an inci- dent under the influence of alcohol or drugs, they may have their employment terminated. "S" used cocaine on his days off. He did not tell his employer that he was using drugs. When his loader was involved in a workplace accident, he was given a law - ful "post incident" drug test and tested positive for co- caine. His employer terminated his employment. "S" then argued he was terminated for addiction, which he was unaware of until the incident, since he was in denial. He made a claim under the Alberta Human Rights, Citizenship and Multiculturalism Act that the employer terminated his employment because of his addiction to cocaine. The Alberta Human Rights Tribunal held that "S" was terminated for breaching the Fitness for Duty Policy, not because of his addic- tion. Its decision was affirmed by the Alberta Court of Queen's Bench and by the Alberta Court of Appeal. The S.C.C. held (8:1) that the appeal should be dismissed. Chief Justice Beverley McLachlin wrote (Abella, Kara- katsanis, Côté, Brown and Rowe JJ. concurring) as fol- lows: "Like the majority of the Court of Appeal, I find no basis for interfering with the decision of the Tribunal. The main issue is whether the employer terminated Mr. Stewart because of his addiction (raising a prima fa- cie case of discrimination), or whether the employer ter- minated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capac- ity to comply with those terms (not raising a prima fa- cie case of discrimination). This is essentially a question of fact, for the Tribunal to determine. After a thorough review of all the evidence, the Tribunal concluded that the employer had terminated Mr. Stewart's employment for breach of its Policy. The Tribunal's conclusion was reasonable . . . I am satisfied that the Tribunal's conclu - sion that addiction was not a factor in the termination of Mr. Stewart's employment is reasonable." Justices Moldaver and Wagner wrote as follows: "We are of the view that the appeal should be dis- missed. While we concur with the Chief Justice in the result, we agree with Gascon J. that the test for prima facie discrimination was met in this case. The Tribu- nal's conclusion that Mr. Stewart's drug dependency was not a 'factor' in his termination was unreasonable. Where we part company with Gascon J. is with respect to reasonable accommodation. In our view, the Tribu- nal reasonably held that the employer met its obliga- tion to accommodate Mr. Stewart to the point of undue hardship. Therefore, we accept the Tribunal's conclu- sion that Mr. Stewart's employer did not discriminate against him on the ground of his drug dependency." Justice Gascon (in dissent) wrote as follows: "Elk Valley prima facie discriminated against Mr. Stewart. He was drug-dependent, and he was termi- nated for giving in to that dependence, an undeniable symptom of his disability. Further, Elk Valley did not reasonably accommodate Mr. Stewart. Its only accom- modation during employment was letting him volun- tarily disclose his disability without discipline. But he could not access this accommodation because he ap- pears to have been unaware of his addiction; again, a symptom of his disability. As the Tribunal's decision to the contrary on both issues was, in my assessment, un- reasonable, I would have allowed the appeal." The decision demonstrates the importance of hav- ing a well-prepared fitness for duty policy and a proper alcohol and drug testing policy in place in dangerous workplaces, as well as the need to get legal advice before terminating workers for substance use. IH Norm Keith is a senior litigation partner at Fasken Martineau DuMoulin LLP in Toronto. Employee violated fitness for duty policy Company did not discriminate against cocaine addict fired for cause.

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