Can my employer dismiss me due to my unseen disability?

Alberta railway engineer fired after drinking on the job and causing collision, but arbitrator reinstated him after he was diagnosed with alcohol use disorder and PTSD
By Marty Rabinovitch and Janet Son
|employmentlawtoday.com|Last Updated: 09/24/2019
The arbitrator concluded there can still be a finding of discrimination in cases when the disability is not disclosed until after an incident. David Marion/Shutterstock

Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee’s diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers.

In a recent arbitral decision, Canadian Pacific Railway v Teamsters Canada Rail Conference, a Canadian Pacific (CP) Locomotive engineer was found drinking whiskey while operating a train, which caused a collision. He was criminally charged by the RCMP and was prohibited from operating a vehicle for two years. Shortly after the incident, he was terminated for just cause due to his violation of CP’s Alcohol and Drug Policy.

After the employee’s termination, he was diagnosed with a severe alcohol use disorder and post-traumatic stress disorder. He explained that he drank alcohol to cope with his and his wife’s battles with cancer. He expressed remorse and was attending addictions treatment.

The arbitrator found that there was prima facie discrimination. In particular, the employee:

  • Possessed a characteristic that was protected by the CHRA (the disability of alcohol addiction)
  • Experienced an adverse impact (his employment was terminated)
  • Was terminated for reasons related to the disability.

CP argued that the worker did not disclose his addiction until after the investigation. However, the arbitrator concluded there can still be a finding of discrimination in cases when the disability is not disclosed until after an incident. Furthermore, the employer did not dispute the fact that the employee had an alcohol addiction.

Under the CHRA, when there is a case of discrimination based on a protected ground, the employer is required to demonstrate that they attempted to accommodate the employee to the point of undue hardship to avoid liability.

In this case, the arbitrator found that CP failed to reasonably accommodate the employee. The arbitrator ordered that the worker be reinstated subject to being physically fit for work and undergoing periodic drug and alcohol testing for two years. The arbitrator also required that the worker abstain from consuming alcohol and drugs for the duration of his employment. CP was required to make reasonable efforts to find a non-safety sensitive position for him until his driving prohibition was lifted.

Key takeaway for employers

Employers should ensure that employees with addictions and other disabilities are accommodated, in particular if workplace misconduct is due to a disability such as addiction. Though at first glance, a just cause dismissal appears warranted – investigating and making reasonable accommodations from the beginning could prevent a potential future human rights complaint.

For more information see:

  • Canadian Pacific Railway v. Teamsters Canada Rail Conference, 2019 CanLII 8545 (Can. Railway Office of Dispute & Resolution).

Marty Rabinovitch is a lawyer with DeVry Smith Frank LLP in Toronto, practising commercial litigation, employment and labour law, and human rights law. He can be reached at (416) 446-5826 or marty.rabinovitch@devrylaw.ca. Janet Son is an articling student with Devry Smith Frank LLP in Toronto. She can be reached at (416) 446-3327 or janet.son@devrylaw.ca.

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