Last-chance agreement’s rule leaves little room for flexibility

Employee's desire to wait for union representation to be present wasn't allowed under agreement
|Canadian Employment Law Today|Last Updated: 07/06/2016

An Ontario employee breached his last-chance agreement by refusing to take an alcohol test until he had a union representative present, an arbitrator has ruled.

Scott Heath was an employee of the City of Cornwall, Ont., for 29 years. On Oct. 29, 2013, Heath’s employment became contingent on a memorandum of agreement that was the result of alcohol-related misconduct including being impaired at work and operating a vehicle while impaired. Under the memorandum of agreement, Heath was required to undergo random alcohol testing whenever requested by the city, for a period of 24 months. If such a test was ordered and Heath either failed or refused to take the test, the city would consider it a breach of the memorandum and terminate Heath’s employment.

On Aug. 25, 2014, another city employee contacted city management and suggested Heath may have been drinking while at a worksite. Heath’s supervisor called him and asked him to come to his office.