Tag for delivery

Case Name:
  Communications, Energy and Paperworkers Union, Local
707 v. Suncor Energy Inc.

IN THE MATTER OF the Labour Relations Code, R.S.A.
2000, C.L-1;
AND IN THE MATTER OF the Collective Agreement between
the Communications, Energy and Paperworkers Union,
Local 707 and Suncor Energy Inc., for the period
June 27, 2001 to May 1, 2004;
AND IN THE MATTER OF a grievance respecting the
dismissal of Dwayne Martyshuk;
AND IN THE MATTER OF an Award by an Arbitration Board
consisting of James C. Koshman, Chair; issued on June
17, 2004
Between
Communications, Energy and Paperworkers Union, Local
707, applicant, and
Suncor Energy Inc., respondent

[2005] A.J. No. 871
2005 ABQB 496
Docket No. 0403 13911

Alberta Court of Queen's Bench
Judicial District of Edmonton
Moen J.

Heard: November 23, 2004.
Judgment: June 30, 2005.
(105 paras.)

Counsel:

Gwen J. Gray, Q.C., Tamara M. Chivers (Student-at-law), Chivers Carpenter, for the Applicant

Roger S. Hofer, Neuman Thompson, for the Respondent

       MOEN J.:—

¶ 1      This case involves judicial review of a decision of an arbitrator. Communications Energy and Paperworkers Union, Local 707 (the "Union") seeks review of a decision made by a Board of Arbitration (the "Board") regarding the dismissal of the Union's member, Dwayne Martyshuk, by Suncor. The Union asks this Court to quash that decision which was in favour of Suncor Energy Inc. ("Suncor").

¶ 2      Martyshuk had been employed by Suncor for 27 years at the time of his dismissal. He suffered from addictions. He was dismissed for insubordination, falling asleep at work, and failing to report to a disciplinary investigation, following a lengthy series of disciplinary letters that raised concerns about possible substance abuse problems.

¶ 3      The Board, given that Martyshuk was addicted, had to determine whether Suncor had made sufficient efforts to accommodate Martyshuk. It concluded that Suncor had.

¶ 4      The Union argues that the Board unreasonably applied human rights analysis in concluding that Suncor had made sufficient effort in its duty to accommodate Martyshuk's disability.

¶ 5      The issues in this judicial review are:

¶ 6      The evidence considered by the Board is summarized as follows:

¶ 7      Suncor and the Union are parties to a Collective Agreement.

¶ 8      Martyshuk began employment with Suncor in 1976 and was continuously employed by Suncor until his dismissal on April 23, 2003.

¶ 9      During his time with Suncor, Martyshuk received a number of commendations.

¶ 10      Martyshuk's history of drug and alcohol abuse dated back to 1990. He had sought help for alcohol addiction in 1990 and 1998-1999 through Suncor's Employee and Family Assistance Program ("EFAP"), through AADAC, and a residential treatment program.

¶ 11      Suncor and the Union had cooperated in the establishment of EFAP, which provided for an entirely confidential professional counselling program for Suncor employees. That counselling program was provided by Personal Support Network ("PSN"). Suncor also had other programs to assist with absenteeism, and a Health and Wellness Centre.

¶ 12      In addition to EFAP, Suncor had implemented a program called "Courage to Care." This program encouraged employees working with a co-worker who might have a substance abuse problem to urge that co-worker to get help.

¶ 13      Suncor also had a written drug and alcohol policy that encouraged employees with drug and alcohol problems to seek treatment before their job performance was affected. Under the policy, an employee who voluntarily accessed help is not disciplined for addiction problems, has access to treatment programs, and is eligible for medical and disability benefits. However, Suncor did not have the authority to force an employee to seek help.

¶ 14      Martyshuk knew about Suncor's assistance programs because he had accessed them earlier in 1990 and 1998-99 in connection to his alcohol addiction problems. In 1998-99 he entered into but did not complete a residential treatment program for alcohol abuse. During the time he was in the residential program he received disability benefits.

¶ 15      Suncor had an established practice of progressive discipline, involving a series of colour coded letters, each denoting a different level of seriousness. The first level, the least serious, was yellow, progressing to green, blue, and pink. The usual expectation was that any discipline after a pink letter would be termination, although there were circumstances when the Employer would issue a "double pink" before termination. There was also a Code of Conduct in place that set a general guideline for the level of discipline for various types of misconduct. For example, absence without leave could attract a blue letter and the penalty of dismissal, while insubordination could attract a pink letter and dismissal. Being under the influence of alcohol or drugs at work was grounds for a pink letter and dismissal.

¶ 16      Suncor's workplace is safety sensitive and safety has a high priority.

¶ 17      The events that formed the basis of this application occurred over nine months beginning on August 7, 2002, when Martyshuk was issued a blue letter for being absent without leave on August 5 and 6, 2002. After this letter was issued Martyshuk called in sick, and an "attendance letter" dealing with his poor attendance throughout 2002, signed by his supervisor, was given to him on September 3, 2002. The letter referred to the possibility of Martyshuk having a substance abuse problem, and encouraged him to seek help if he did have one. Martyshuk saw the Suncor Labour Relations Consultant who reaffirmed that if Martyshuk had a substance abuse problem, help was available and should be dealt with before it got out of hand.

¶ 18      In November 2002, Martyshuk went through a very difficult period in his life. He was hospitalized for a medical condition, his house burned down, and his wife was diagnosed with leukemia. This suggested to his fellow workers that the events set out subsequently may have been precipitated by this series of misfortunes.

¶ 19      In January 2003, Martyshuk was involved in a series of incidents at work involving damage to equipment and failure to follow instructions:

¶ 20      On January 20, 2003, Martyshuk saw Dr. Ferrance, a psychologist, and the doctor's notes indicate that Martyshuk expressed frustration with work and concern about drug use/experimentation.

¶ 21      On January 30, 2003, there was an internal memo in Suncor that raised concerns about Martyshuk's performance and a concern that he may be suffering from a substance problem.

¶ 22      On February 4, 2003, representatives of Suncor management met and decided to impose discipline for these incidents. Two co-workers were asked to approach him to discuss the possibility of a substance abuse problem. On February 5, 2003, the co-workers met with Martyshuk for almost two hours. He denied it. He said that his problem was his supervisor, not a substance abuse problem. He acknowledge that he had a problem in the past but did not have one now.

¶ 23      On February 6, 2003, Martyshuk was issued a pink discipline letter for insubordination and failure to operate equipment with due care and attention and causing damage. On the same date, a further "attendance letter" was also issued to him listing all his absences from 1976 and attaching conditions regarding reporting absences and entitlement to benefits while absent. The President of the Union spoke with Martyshuk around this time confronting him about a potential abuse problem; Martyshuk denied it.

¶ 24      On February 14, 2003, Martyshuk again saw Dr. Ferrance.

¶ 25      On March 9, 2003, Martyshuk failed to report for work on time. His supervisor called and he came in late.

¶ 26      Again, a co-worker met with him to encourage him to get help and told him that he (the co-worker) and the Union would help.

¶ 27      On March 10, 2003, Martyshuk met with Dr. Ferrance to discuss his wife's leukemia diagnosis and to discuss a residential treatment program for his substance abuse. Suncor was not aware of this.

¶ 28      On March 12, 2003, because of reporting late for work on March 9, he was issued a second pink discipline letter. The letter stated that discharge normally followed a first pink letter, but due to mitigating circumstances, Suncor decided to issue a second pink letter rather than termination. The letter also said: "This is highly unusual. ... any further violation of the Suncor Code of Conduct will, in all likelihood, result in your immediate termination." This second pink letter or "double pink" letter was presented to Martyshuk by a co-worker who again advised him about the help available for substance abuse problems and encouraged him to seek help.

¶ 29      On April 1, 2003, Martyshuk met with a counsellor at the PSN, seeking a referral to Dr. Ferrance, since this would entitle him to have Dr. Ferrance's services funded by Suncor. He did not mention his cocaine addiction at PSN, but spoke only of his problems with his supervisor and his wife's illness. He did mention that he was a successfully recovering alcoholic.

¶ 30      On April 4, 2003, Martyshuk was directed by his supervisor, on an urgent basis, to begin a raking operation. Nearly two hours later, his supervisor found that the raking had not been done and Martyshuk was sleeping in his loader. Pending investigation Martyshuk was suspended with pay from work for insubordination and sleeping on the job.

¶ 31      On April 7, 2003, Martyshuk saw Dr. Ferrance who urged him to take responsibility for his actions. They discussed employment options and a treatment program. Suncor was unaware of Martyshuk taking that step.

¶ 32      On April 8, 2003, a disciplinary investigation was scheduled, about which Martyshuk was notified that he was required to attend. He did not attend, although the Union President did, and advised management that Martyshuk now admitted to a cocaine addiction.

¶ 33      On April 9, 2003, Martyshuk met with the PSN counsellor and admitted a cocaine addiction and that he wanted to pursue a residential treatment program. An application was made to the Grande Prairie AADAC program for him by the PSN counsellor.

¶ 34      On April 21, 2003, representatives from the Union and Suncor met to exchange information before Suncor made its final decision about Martyshuk's fate. Suncor representatives were told that Martyshuk was now admitting his addiction problem, was entering a residential program, and was being treated by a psychologist for his addiction. Suncor concluded that because Martyshuk had denied the problem, despite many opportunities and offers of help, that to give him a further "last chance" at this point would set a bad precedent.

¶ 35      On April 23, 2003, Martyshuk was dismissed by Suncor for being insubordinate, asleep at work, and failing to report to his disciplinary investigation together with the discipline already on his file.

¶ 36      The Board also heard some evidence regarding post-termination conduct.

¶ 37      In October 2003, while operating a truck for another employer Martyshuk was in an accident caused by the fact that he overloaded the vehicle and then drove it too fast. He tested negative for drugs and alcohol after the accident. That employer suspended him for 30 days.

¶ 38      The Union also submitted evidence regarding Martyshuk's strong motivation toward recovery, the support of his family, and his participation in post-treatment activities. At the time of the hearing before the Board, Martyshuk was employed with a contractor where he was subjected to random drug and alcohol testing.

¶ 39      The Union grieved Martyshuk's dismissal.

III  The Board's Decision

¶ 40      The Board decided that Suncor had accommodated Martyshuk to the point of undue hardship.

¶ 41      The Board first summarized the Union's position before the Board as follows: Martyshuk was deserving of some discipline but not termination. Further, because Suncor had been made aware of Martyshuk's disability before the termination and Martyshuk's intentions to seek treatment, Suncor was obligated to accommodate Martyshuk's illness. Suncor had not reached a level of "undue hardship" where the situation was irretrievable. There were alternatives available to Suncor in which it could assist and accommodate Martyshuk's disability short of termination, that is, that Martyshuk ought to have been given a "last chance".

¶ 42      The Board summarized Suncor's position as follows: to accommodate Martyshuk beyond the point where it terminated him would be to impose an undue hardship on Suncor. It said that the termination should be viewed in light of both its safety and economic concerns. Further, it said that even if it should have given Martyshuk a "last chance", it had done so by using the double pink letter. Suncor's progressive notification procedure for discipline did not use a "last chance agreement". Finally, Suncor said that its various programs to assist employees were designed to assist its employees before termination became necessary.

¶ 43      The Board first reviewed whether Martyshuk's action constituted just cause for termination. The Board was satisfied that the evidence established that Suncor had "just cause" to terminate. This is not an issue which the parties are contesting.

¶ 44      It then examined Suncor's duty to accommodate Martyshuk's disability - addiction to cocaine - and whether Suncor had met that duty. The Board found that it had.

¶ 45      The Board found that safety was a high priority in the Suncor workplace, and that this was acknowledged by Martyshuk. The Board also found that Martyshuk well knew the disciplinary policy of Suncor, that is the colour coded method and how it was used by Suncor. The Board also noted that Martyshuk knew that a violation of the Code of Conduct by an employee after the first pink letter had been issued was followed by dismissal. In this case, the Board found that Suncor had given Martyshuk a "second chance" by issuing another pink letter - a double pink letter - in Martyshuk's case. Martyshuk was warned. When Martyshuk then violated the Code of Conduct after the double pink letter, Suncor first suspended him and ordered him to attend a disciplinary meeting on April 8, 2003. Martyshuk failed to attend, and after a meeting with the Union, Suncor terminated him.

¶ 46      The Board found that Suncor, at this point, had just cause to dismiss Martyshuk because Martyshuk's actions in the workplace were a danger to both the safety of himself and his co-workers, and to the economic well being of Suncor's operations.

¶ 47      The Board then turned to the issue of accommodation.

¶ 48      The Board noted that Suncor had raised its concerns about substance abuse with Martyshuk on several occasions and that on each occasion he had denied the problem, and that before terminating Martyshuk, Suncor was told that he had finally acknowledged his addiction and was seeking treatment.

¶ 49      The Board concluded that Suncor had met its obligation to accommodate, noting that Suncor had made treatment resources available to Martyshuk, had confronted him with their suspicions of substance abuse, and had made efforts to encourage him to access those resources. Martyshuk knew about those resources since he had used them before for his alcohol addiction. The Board found that there was a "significant responsibility" on Martyshuk to address his situation and access the help available, and that he chose not to do so.

¶ 50      The Board asked the question: "What more in these circumstances should an Employer be obliged to do?" It answered that an employer "... cannot be expected to allow the situation to carry on in the hope that it will somehow change."

¶ 51      The Board rejected the Union's arguments that Suncor's accommodation obligations included referring Martyshuk to an addictionologist for testing, noting that there was no authority for such an action in the Collective Agreement or elsewhere, no indication that Martyshuk would comply, and no indication what testing would accomplish. It noted that testing does not solve the problem. The Board said that Suncor's obligation to accommodate an employee with an addiction problem "... does not extend to the point where the Employer must resort to measures which force the employee to address the problem, nor is this Board aware of any basis that would entitle the Employer to do so."

¶ 52      The Board was most responsive to Suncor's argument that if Suncor was required to accommodate Martyshuk at this point, it would be tantamount to saying to the employees at the worksite that they could avoid the available assistance until they were, or were about to be, terminated. The Board concluded that "... to require anything further beyond the efforts exerted by the Employer in the circumstances of this case is to impose an undue hardship on the Employer in the accommodation of the Grievor and would send the wrong message to the workplace."

¶ 53      I turn first to a review of the standard of review that will apply in this case.

¶ 54      The Union argues that since the Board was required to interpret and apply human rights principles, the appropriate standard of review is correctness, or at most reasonableness simpliciter. Suncor, on the other hand, argues that the standard of review is patently unreasonable, or in the alternative reasonableness simpliciter.

¶ 55      The Supreme Court of Canada has indicated that a pragmatic and functional analysis must be applied to determine the appropriate standard of review; Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 (Pushpanathan). The four factors in the analysis are the presence of a privative clause, the expertise of the tribunal, the purpose of the statute, and the nature of the problem.

¶ 56      Two recent Supreme Court of Canada decisions considered arbitration decisions from Alberta: Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609 and Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] S.C.J. No. 24. The Court noted that the analysis must be conducted for every review as the standard may change depending upon the issues in question. However, the Court also stated that a standard of "patently unreasonable" as a standard for arbitrations would be rare.

               1)   Privative clause:

¶ 57      It has long been recognized that there is a privative gloss created by s. 145 of the Alberta Labour Relations Code R.S.A. 2000, c. L-1 which, while not as complete as a true privative clause, still calls for some judicial deference. United Nurses of Alberta, Loc. 115 v. Calgary Health Authority (Boyer), 123 L.A.C. (4th) 10 (Alta. C.A.) at para. 12-13.

               2)   Expertise:

¶ 58      The Supreme Court of Canada has said that when evaluating expertise, the Court assesses the expertise of the tribunal as compared to the expertise of the Court. Arbitrators are considered to have expertise in the field of interpreting collective agreements and in the general area of labour relations, but the Alberta Court of Appeal has expressly held that arbitral expertise cannot be assumed to extend to the interpretation and application of human rights principles. In Boyer the Court considered the Supreme Court of Canada decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (2003), 230 D.L.R. (4th) 257, in which that Court held that Ontario arbitrators were found to have expertise in the interpretation and application of human rights principles based on the Ontario Labour Relations Act, R.S.O. 1990, c. L.2. The Alberta Court held:

¶ 59      I must conclude, therefore, that this factor weighs in favour of deference on issues relating to general labour relations principles and the interpretation of the Collective Agreement, and less deference when interpreting and applying human rights principles.

               3)   Purpose of the legislation:

¶ 60      The purpose of the provisions of the Alberta Labour Relations Code dealing with arbitration boards is to provide for prompt and final dispute resolution between parties. While the nature of these disputes is closer to the adjudicative end than the polycentric end of the spectrum, suggesting somewhat less deference, the important role arbitrators play in labour relations schemes in quickly, finally, and economically resolving labour disputes is well recognized by the courts as a factor favouring deference on its own. Toronto (City) Board of Education v. O.S.S.T.F., District 17, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385 at pp. 397 to 398.

               4)   Nature of the problem

¶ 61      For this factor the Court asks whether the question before the tribunal was a question of fact, law, or mixed fact and law. Questions of fact inviting the most deference and issues of law the least deference.

¶ 62      The human rights question was: whether the employer, Suncor, complied with its legal obligations to accommodate Mr. Martyshuk, who suffered from addictions, to the point of undue hardship.

¶ 63      Suncor submitted that the issue before the Board was one of mixed fact and law, but primarily factual - the analysis and weighing of a multitude of facts, determined by an arbitrator who had the opportunity to see the witnesses and make determinations of credibility.

¶ 64      The Union submits that the question before the Board was outside arbitral expertise. The Union submitted that the Board was primarily engaged in interpreting and applying human rights law, something not intimately connected to a labour arbitrators' mandate. The question before the Board, the Union says, was the identification of the content and applications of the human rights tests of accommodation and of undue hardship. The Alberta Court of Appeal in Boyer, supra, states: "... a labour arbitration board must be held not to have expertise in interpreting human rights legislation equal or superior to a court's." (at para. 16).

¶ 65      The Board determined the facts after hearing evidence. The Board was also required to apply human rights principles to those facts to reach a conclusion as to whether Suncor had accommodated Martyshuk to the point of undue hardship. The Board acknowledged that the question was whether Suncor had a duty to accommodate in the circumstances of this case.

¶ 66      I conclude that the nature of the problem before the Board was a question of mixed fact and law.

¶ 67      Taking into account all the factors in the pragmatic and functional approach, I conclude that the appropriate standard of review is whether the decision is reasonable. How then, should I determine whether the decision of the Board is reasonable?

¶ 68      Where, as here, the Court has determined that the standard of review is reasonableness, the onus is on the party challenging the decision to show positively that the decision by the tribunal was unreasonable. The Court must not interfere in the decision of the tribunal unless that decision "is not supported by any reasons that can stand up to a somewhat probing examination." The Court must "look to see whether any reasons adequately support it." Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 (SCC) at paras. 48-49:

¶ 69      At para. 55 in Ryan the Supreme Court of Canada went on to note:

¶ 70      When assessing whether a decision is a reasonable one, the Court must not enter into an analysis of what the Court would have decided on the facts. There is no single right answer that the Court seeks in reviewing a tribunal's decision as the Court would if the standard were correctness. The Court must show deference to the tribunal which is working in the area of its expertise and has been given the responsibility to adjudicate in that area by the legislature: Ryan, at paras. 50-51.

¶ 71      There was no question between the parties nor on the part of the Board that Suncor had a duty to accommodate, which is the human rights law to be applied in this case. Nor was there any disagreement between the parties that human rights law is to be given a broad and inclusive interpretation. Suncor agreed that the human rights law on discrimination included persons with addictions. The question then was whether Suncor had met its duty.

¶ 72      I must ask myself, therefore, whether the Board's reasons can stand up to a "somewhat probing examination"; whether there are any tenable reasons supporting it and; whether there is any line of analysis that could reasonably lead the Board from the evidence before it to its conclusion. This analysis is directed to the question of whether Suncor met its duty to accommodate Martyshuk.

¶ 73      The Union sets out several general propositions regarding the duty to accommodate:

¶ 74      Further, the Union argues that the Board erred in several fundamental ways, arguing that it:

¶ 75      The Union submissions amount to the suggestion that Suncor could have, without undue hardship, suspended Martyshuk for a period of time while he received treatment and required medical proof of fitness to return to work, as it does for its employees who voluntarily acknowledge their addiction. It argues that this cannot be any more "undue hardship" for Suncor in relation to Martyshuk, since that is the approach it takes with employees who voluntarily acknowledge a problem, and is the approach it took with Martyshuk on other occasions when he voluntarily acknowledged his problem and received treatment for which Suncor paid.

¶ 76      The duty to accommodate arises for an employer when an employee who, because of a prohibited ground of discrimination can work, but because of their particular circumstances cannot meet the "standard" requirements of the particular workplace.

¶ 77      Here we have a case of someone who is addicted to drugs and who was coming to work in a condition that did not allow him to work safely as evidenced by the damage he caused to Suncor's equipment. His condition was a danger to himself and to other workers on the Suncor site.

¶ 78      The Union says that it was difficult for Martyshuk to attend work as expected by Suncor and to perform his job duties in the manner expected by Suncor.

¶ 79      The arbitration decisions on accommodation of a person with addictions go both ways. There are two lines of cases, primarily fact dependent, dealing with disability arising from addiction that address an employer's duty to accommodate an employee who continues to deny addiction. The fact scenarios are generally that the disabled employee has been subject to progressive discipline or "corrective action," but has denied addiction either up until dismissal or the point of arbitration. The question before the arbitration boards and courts has been whether the employer's duty requires it to suspend the employee and mandate treatment prior to return, or permits termination.

¶ 80      In Westar Timber Ltd. v. U.W.A. Canada, Loc. 1-424 (Redpath) (unreported, July 26, 1991, Arb. Hickling) the employer's policy was that an employee who reported to work impaired was suspended for the shift and taken home. He was warned that if it happened again he would be terminated. Redpath had a discipline history for repeated absence and reporting late for work, a pattern often associated with addiction related problems. He arrived for a shift impaired and was, as per the terms of the policy, escorted home and warned that another incident would result in termination. When he again reported to work impaired he was terminated. The Arbitration Board in the termination grievance conducted a lengthy analysis of expert evidence of addiction illnesses and concluded that a step short of actual dismissal ought to have been tried before finally severing the relationship. It ordered a one year's leave of absence, and required the grievor to undertake a course of treatment for alcoholism before being entitled to return to work.

¶ 81      International Association of Machinists and Aerospace Workers, Loc. 99 v. Finning (Canada) (Miller) (unreported, Arb. McFetridge, September 30, 2003) concerned a long-term employee whose alcoholism began to affect his work, originally through poor attendance and lateness and then by reporting to work impaired. The employee was unwilling to admit he had an alcohol addiction. The Arbitration Board relied on the decision in Westar Timber to conclude that the employer could have done more to accommodate the employee, citing the evidence relied on in Westar Timber that involuntary treatment of an unmotivated alcoholic may be effective. The Board substituted suspension without pay until the employee could establish that he had resolved his drinking problem to the satisfaction of the employer.

¶ 82      On the other hand, several decisions have held that an employer's obligation to accommodate an employee disabled by addiction does not necessarily extend to suspension and mandatory treatment, or to "one last chance." In Re Toronto District School Board and C.U.P.E., Loc. 4400 (1999) 80 L.A.C. (4th) 168, the Arbitration Board considered the case of a fairly short-term employee who, following a series of progressive disciplinary events, finally admitted a drinking problem and attended a 28-day treatment program. Following his return to work he was suspended for two further incidents, and warned that the next offence would result in termination. He once again was found at work under the influence of alcohol and was dismissed. Following his termination, the grievor made successful rehabilitation efforts.

¶ 83      The Arbitration Board concluded that there was just cause for dismissal, and although the grievor had demonstrated admirable efforts at rehabilitation, there was some cause for concern in his post-discharge work history with another employer. As well, the Board considered the employer's exemplary treatment of the grievor prior to termination, the grievor's seniority, and work history. Further, the Board noted:

¶ 84      In Re Ottawa Civic Hospital and Ontario Nurses' Association (1995), 49 L.A.C. (4th) 388 the grievor, a nurse, had an excessive absenteeism record as a result of a drug and alcohol addiction unknown to the employer at the time. Progressive discipline was applied, leading to suspension and eventually termination. The Union grieved, and at the third step of the grievance she revealed that she had an addiction problem with drugs and alcohol. The Arbitration Board thus was faced with the question of whether the employer's lack of knowledge of the employee's disability was relevant to whether it has accommodated the employee to the point of undue hardship.

¶ 85      The Board concluded that it would consider every accommodative measure taken throughout the period of disability, which was the approach taken by the Federal Court of Appeal in Niles v. Canadian National Railway Co. (1992) 94 D.L.R. (4th) 33 18 C.H.H.R. D/152 (Fed.C.A.). The Board noted that the grievor's past use of sick leave (three times the norm) imposed significant cost on the employer and adversely affected the morale of the other employees. As well, the employer provided her with counselling, referral to occupational health services and an employee assistance program. The Board also considered the possible cost, if the grievor were reinstated, of future accommodation if she were to relapse. As a result, the Board concluded that the employer had accommodated the employee to the point of undue hardship and the termination was sustained.

¶ 86      The Board's analysis followed three steps. First, it concluded that there was just cause for dismissal. The Union did not take issue with this finding. Then the Board turned to consider whether Suncor had accommodated Martyshuk. It considered that:

¶ 87      The Board's analysis of the evidence included that Martyshuk was in a safety-sensitive position, that being impaired while on the job endangered himself and others, and that he could have, and did, cause damage to Suncor property. As well, the Board was aware that Martyshuk's addiction disability had already been accommodated by Suncor on two occasions, in 1990 and 1998-99 when he accessed their employee assistance programs. Further, the Board's analysis of the evidence demonstrated that Suncor not only gave Martyshuk a "last chance" pink letter, indicating that he would be terminated for any further incidents, but was given a "double pink," a further last chance, before termination.

¶ 88      The Board went on to reject the Union's arguments that Suncor should have referred Martyshuk to an addictionologist for an assessment, finding that such an assessment would not necessarily be useful, nor could Suncor enforce such an assessment as this was not permitted in the Collective Agreement nor in labour law.

¶ 89      The third step in the Board's analysis was to consider whether post-termination evidence was admissible. Relying on the decision of the Supreme Court of Canada in Compagnie meniere Quebec Cartier v. U.S.W., Loc. 6869, [1995] 2 S.C.R. 1095, the Board held that it was not, but that even if it was, it supported Suncor's decision to terminate Martyshuk.

¶ 90      In my opinion, the Board in the case before this Court came to a reasonable conclusion, in line with the reasoning in Re Toronto District School Board and Ottawa Civic Hospital. In particular, Martyshuk, like the grievor in the Re Toronto District School Board, has already accessed employee assistance programs and treatment. Further, while the Arbitration Board in Ottawa Civic Hospital commented that there was no "one last chance" rule, Martyshuk received not one, but two, pink disciplinary letters informing him that this was his "last chance."

¶ 91      Moreover, even much of the reasoning in Westar suggests that this is a case where termination could be appropriate. At page 38 of Arbitrator Hickling notes:

¶ 92      Earlier at page 12 he noted that the existence of an employee assistance plan could be a relevant factor in assessing the appropriateness of an employer's response. While he goes on to discuss the expert evidence that denial is a symptom of an addictive disease, as argued by the Union here, he also discusses the problem of "enabling" in addiction. At page 15 he posits that Unions who feel obliged to prosecute a grievance and arbitrators who direct reinstatement may be engaged in enabling behaviour:

¶ 93      Arbitrator Hickling concluded that for some employees the threat of termination was enough, but that for others actual termination, followed by reinstatement conditional on adequate rehabilitation, constituted shock treatment sufficient to force the disabled employee into therapy. See Westar at page. 17. However, this approach is entirely inconsistent with the existing law on post-termination evidence. The decision of the Supreme Court of Canada in Compagnie meniere Quebec Cartier v. U.S.W., Loc. 6869, [1995] 2 S.C.R. 1095 was clear that post-termination evidence is only admissible if it is relevant to the reasonableness and appropriateness of the dismissal at the time that it was implemented. The Court went on to say at para. 13:

¶ 94      In this case, Martyshuk agreed, through the Union representation at the April 8 meeting, to rehabilitation efforts at the last possible moment after he had been suspended but just before he was actually terminated. The Board noted the lengthy period in which Suncor tried to get him to acknowledge the problem and used co-workers to communicate with him, as well as the fact that he had been involved in accessing the assistance program for addiction issues on three earlier occasions. In this regard, Arbitrator Hickling's comments regarding the particular setting and how many steps there should be in the process of confrontation should be considered.

¶ 95      It is also relevant to note the comments of Coutu J. in United Nurses of Alberta, Local #2 v. Red Deer Regional Hospital, 1998 ABQB 57, in which she addressed the issue of assessing an employer's accommodation of an employee within the context of the particular workplace.

¶ 96      The employee, a nurse, had been employed by the hospital for fifteen years, from 1981 to 1996. Her record included a previous incident from 1985 when it was discovered that she had been diverting and stealing narcotics to which she was addicted. Rather than terminating her employment, she was placed on sick leave for ten months and received treatment and counselling. She then returned to work under supervised practice.

¶ 97      Ten years later the employer became aware of further narcotics diversions, and the RCMP investigated. It was discovered that the she had stolen 4500 narcotic dosages on 300 to 400 occasions over a period of about 18 months. In the course of the investigation, she admitted that she took the narcotics from work, that she was impaired while working, and was concerned about patient care and safety. The employer terminated her employment, despite the fact that she subsequently entered into treatment. The Arbitration Board upheld the termination. The Union argued that the Board erred by casting the addiction as a culpable problem, rather than as an illness. Coutu J. disagreed.

¶ 98      She further noted that collective agreement provisions and policies that encourage employees to use employee assistance programs would be less effective if employers were required to reinstate employees who refused to access the programs until they were discharged. She cites the decision of Canadian Airlines International Ltd. v. Canadian Air Line Pilots Assn., [1997] B.C.J. No. 1652 (B.C.C.A.):

¶ 99      This was precisely Suncor's point, emphasized by the Board, that reinstatement sends the wrong message to the workplace. The Union criticizes the Board's analysis, arguing that it had no "cogent evidence" on this point, but relied merely on impressionistic evidence. I disagree. This was not a question of fact that the Board required evidence on, but an inference it could reasonably draw based on the evidence it heard and on its expertise in the labour relations field. It is not unreasonable to conclude that a workforce would see his reinstatement as a precedent for resisting voluntarily acknowledging the need for help when it had witnessed an employee who:

¶ 100      Coutu J. made some further relevant comments. She noted that the Board considered the grievor's addiction, but also correctly took a balancing approach, considering the employer's interest as well as the grievor's. While agreeing that alcoholism or addiction cannot by themselves be grounds for dismissal, she noted neither can addiction be a shield for workplace misconduct.

¶ 101      In assessing Suncor's duty to accommodate, the Union argues that it cannot constitute undue hardship for Suncor to provide the same assistance to addicted employees who refuse, or are incapable of seeking, assistance, as is provided to those employees who voluntarily seek assistance, citing the decision in Milazzo v. Autocar Connasseur Inc. [2003] C.H.R.D. No. 24 at para. 182. This suggests that in assessing Suncor's accommodation efforts the Board should be limited to the immediate past and future accommodation.

¶ 102      However, in my opinion the extent of the employer's past accommodation should also be considered as in Re Ottawa Civic Hospital, supra and Niles v. Canadian National Railway Co., supra. The Board reasons in Ottawa Civic Hospital seem compelling. If past accommodation is not considered in assessing undue hardship, then in another case the same assessment would apply to an employer who must prospectively accommodate an employee similarly disabled. Here, the Board considered Suncor's history of providing Martyshuk with several programs for employee assistance, which he accessed on several occasions in the past. That past accommodation must be considered when determining what constitutes "undue hardship."

¶ 103      As for the Milazzo case, it is distinguishable on several grounds. The decision by the Canadian Human Rights Commission concerned an inter-provincial and international bus driver subject to random drug tests. The Commission concluded that Mr. Milazzo was neither addicted nor perceived by the employer to be addicted, and therefore there was no basis for his complaint that he was discriminated against on the basis of disability. The remainder of the Commission's decision dealt with a "zero tolerance" drug policy - again not an issue here, since Suncor's policy was one of progressive discipline.

¶ 104      In my opinion, the Arbitration Board properly applied the principles of human rights law. It appropriately considered the evidence, and drew reasonable inferences from the evidence before it. The Board indicated that it was balancing both Suncor's interests and Martyshuk's, and that it was taking into account all the facts before it. In light of the considerable efforts expended by Suncor, the nature of the worksite, and Martyshuk's reluctance to deal with his addiction, it was not unreasonable for the Board to conclude that Suncor had accommodated him to the point of undue hardship.

¶ 105      I conclude, therefore, that the Arbitration Board's decision was reasonable. Its reasons support its decision and its analysis lead reasonably from the evidence to its conclusion. I dismiss the application for judicial review.

MOEN J.

QL UPDATE:  20050718
cp/e/qw/qlrds