Arbitrator reinstates locomotive engineer fired for drinking whiskey on the job

Generally speaking, employers have the right to dismiss employees that fail to report to work sober, and perform their duties in a safe manner, particularly where these requirements have been clearly communicated through written policy.

An employer’s right to dismiss employees for intoxication at work, however, is not unfettered. In circumstances where an employee’s use of alcohol and/or drugs is as the result of a disability (i.e., addiction), the employer may be required to suspend disciplinary action and instead provide reasonable accommodation to the point of undue hardship.

The duty to provide reasonable accommodation includes procedural and substantive components. The procedural requirement comes first and will be satisfied where the employer engages with the employee (and union where applicable) to assess what steps it may reasonably take to accommodate the communicated restriction or limitation.

The substantive requirement then engages the actual measures implemented by the employer to provide accommodation, or alternatively, the employer’s reasoning why reasonable accommodation is infeasible as it would result in a demonstrable undue hardship. Employers should be aware that the threshold to prove undue hardship, thus relieving the employer from its substantive duty, is high and thus infrequently established.

The CP Rail case

The operation of freight trains can be a dangerous business. When things go wrong, the results can be catastrophic, as evidenced by the death of three CP rail employees earlier this year following a train derailment in British Columbia. 

Due to the significant risks associated with the operation of its freight trains, Canadian Pacific requires that its employees comply with policies designed to mitigate the potential for harm to staff and the public.

In a recent case, CP dismissed for just cause a Locomotive Engineer (the “Engineer”) for possessing and consuming whiskey while operating a train, in clear violation of its Alcohol and Drug Policy. The Engineer was working on a train involved in a collision with a vehicle. The police suspected that the Engineer was under the influence of alcohol, and subject him to a breathalyzer, which he failed.

CP conducted an investigation into the incident and dismissed the Engineer. The Engineer was also restricted from operating a vehicle or rail equipment as a result of a Prohibition Order issued by the Province of Alberta.

The Engineer’s union grieved his dismissal from employment on the basis that CP had failed to consider a number of mitigating factors that were revealed in the course of CP’s investigation. In particular, the fact that the Engineer and his wife had both battled cancer and he had turned to alcohol to cope with the stress in his personal life. In addition, the Engineer disclosed that he felt he had an addiction to alcohol, for which he had since sought treatment, and apologized to CP for his misconduct. In light of the preceding, the union argued that CP was under a positive duty to reasonably accommodate, rather than dismiss, the Engineer.

CP responded by asserting that the Engineer’s conduct was a clear violation of its policy, that he only raised the issue of disability during the investigation, and regardless there was no causal connection between a disability of any kind and his actions in possessing, and dinking, alcohol while operating a train.

The Arbitrator accepted the union’s submissions and overturned the dismissal, ordering that the Engineer be reinstated to his employment. In reaching this conclusion, the Arbitrator noted that the union had proven a prima facie case of discrimination (on the basis that the Engineer suffered from alcohol addiction which had been a factor in the loss of his employment). Having found that a prima facie case of discrimination did exist, the Arbitrator concluded that CP had failed to demonstrate that it would have amounted to undue hardship to provide reasonable accommodation.

Takeaway for employers

It is important to remember that this decision occurred in the unionized context, where employment can generally only be ended for just cause (which is dissimilar to most non-unionized situations).

This case dealt with the termination of an employee from a safety-sensitive position for a clear violation of company policy (not to mention conduct that was a breach of the Criminal Code). At first blush, these may seem like the exact circumstances where termination of employment for cause would be justified. 

The fact that the Arbitrator ordered reinstatement, however, is an important reminder that employers must, at all times, ensure that they satisfy their procedural and substantive obligation to reasonably accommodate a disability, even where discipline may seem appropriate. Effectively, an employer may need to suspend its disciplinary action, or risk a finding that it violated its human rights obligations.

As always, every situation is unique, and will turn on its own particular set of facts. There will certainly be circumstances where cause for dismissal is an appropriate (and necessary) response to employee intoxication at work. That said, given the degree of complexity that the duty to accommodate can introduce to an incident of employee conduct, employers are well-advised to tread carefully and navigate the process cautiously with legal counsel. Moreover, the importance of clearly-communicated, and consistently-enforced, policies cannot be understated.

This article was originally published on April 15, 2019 on First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca