Absence due to alcoholism-related jail time

Employee arrested twice in six months for alcohol-related incidents but didn't tell employer of any alcohol abuse problems
By Brian Johnston
|Canadian Employment Law Today|Last Updated: 10/17/2011

Question:

An employee was absent for more than 30 days because he was in custody for an alcohol-related assault charge. This is the second time in less than six months he’s been under house arrest, but he is allowed to leave home to attend work. He’s worked at our company for seven months and has never informed us of an alcohol problem. What are our responsibilities regarding accommodation? Can we proceed with his termination for culpable absenteeism?

Answer:

It is fundamental to the employment relationship that an employee has to attend work unless absent as a result of an approved or statutorily mandated leave. Therefore, if an employee is absent for a considerable amount of time, the employer may dismiss him. When determining if a dismissal on the grounds of culpable absenteeism is justified, courts have considered the employee’s work record, the reasons for the absence, the harm the absence would have on the workplace, the employee’s seniority and whether dismissal is more severe than is necessary to correct the conduct or whether a less severe punishment is appropriate.

The fact the employee has only been working for seven months, his history of missing work and the fact the employee was absent from work for a month already, are all factors a court would consider in the employer’s favour for termination due to culpable absenteeism.

As well, Canadian courts have held that a lengthy term in prison is enough to frustrate an employment contract. However, in those cases, the jail term was significantly longer than a month.

However, before terminating the employee, the apparent drinking problem has to be considered. Though the employee has not informed his employer of a drinking problem, the fact he has been arrested twice in recent months, once for an alcohol-related assault, seems to indicate alcoholism could exist. If the employee wishes to use alcohol as an excuse, he should bring its existence to the employer’s attention. The exception is if, given all the circumstances, the employer ought to have known he suffered from an addiction. Further, if he does claim to be an alcoholic, the employer has the right to obtain information that confirms his claim.

If the employee is an alcoholic, terminating employment becomes more difficult. Human rights legislation in most Canadian provinces, as well as federal legislation, has recognized alcohol dependency as a handicap. As such, alcoholism is classified as a disability and a protected ground from discrimination. When an employer is faced with a disabled employee, it has a duty to accommodate the employee to the point of undue hardship. Just what is meant by “undue hardship” will vary depending on the circumstances. Some examples of accommodations that employers have made with regard to alcoholics include providing access to rehabilitation and treatment and allowing the employee a “last chance agreement.” A last chance agreement is an agreement whereby an employee returns to work under certain conditions, such as abstaining from alcohol, and if those conditions are breached, the employee may be terminated. Without a last chance agreement or proof of undue hardship, courts have found if an employee’s misconduct is a result of a disability, it cannot be used as grounds for a disciplinary dismissal. Thus, if the assault and subsequent time away from work was caused by the employee’s alcoholism, the employer might not be able to use it as grounds to terminate his employment unless the employee has been accommodated to the point of undue hardship.

For more information see:

Entrop v. Imperial Oil Ltd.

, 1996 CarswellOnt 4403 (Ont. Bd. of Inquiry).

Syndicat des employés de l'Hôpital général de Montréal c. Sexton

, 2007 CarswellQue 110 (S.C.C.).

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or bjohnston@smss.com.

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