( Disponible en anglais seulement )
The decision to dismiss an employee is one that no employer likes to make. In many circumstances, though, it’s a decision that employers may feel compelled to make, particularly when serious employee misconduct or safety violations are involved.
Employers in the transportation industry are particularly attuned to the grave consequences that employee misconduct can have. While, in other industries, employee misconduct may have trivial consequences, in these industries, employee misconduct often involves incidents on the road, like car accidents, impaired driving or derailments, the outcomes of which can be fatal. In these circumstances, dismissal may seem like the only reasonable response, if not a necessary one.
However, even when dismissal appears to be the only sensible response to serious employee misconduct that puts the safety and well-being of others in jeopardy, it can still carry significant liability risks for employers, as a recent arbitration case out of Quebec shows us.
Facts
Yolaine Nadeau worked for 1641-9749 Quebec Inc. (the “Company”) as a truck driver. She was a unionized employee and a member of Teamsters Quebec, Local 106 (the “Union”). On June 30, 2022, Ms. Nadeau was scheduled to drive her truck from Boucherville, Quebec, to Pennsylvania. After leaving Boucherville, Ms. Nadeau stopped in Watertown, New York, drank six cans of beer, and then continued her trip. Shortly after leaving Watertown, Ms. Nadeau stopped in Pembroke, Ontario, where she bought six more cans of beer, at least three of which she consumed, and then continued on.
However, shortly after leaving Pembroke, Ms. Nadeau’s truck swerved off the highway and came to a crashing halt in an adjacent field. Video recordings showed Ms. Nadeau’s truck swaying severely prior to the accident. Fortunately, no one was injured; however, the truck Ms. Nadeau was driving had extensive damage and needed to be towed. Police arrested Ms. Nadeau shortly after she crashed. According to the police report, Ms. Nadeau’s blood alcohol level was 0.18, over twice the legal limit. Ms. Nadeau was released on bail the next day, at which point she returned to Quebec and explained what had transpired to the Company.
On August 31, 2022, after conducting a thorough investigation into the incident and holding multiple meetings with the Union and Ms. Nadeau, the Company decided to terminate Ms. Nadeau’s employment with cause. In coming to this decision, the Company relied on what it viewed as “numerous charges of extraordinary gravity,” which included consuming alcohol during work and while driving a truck, being involved in a traffic accident, and causing significant damage to Company equipment, amongst others.
The Union brought a grievance on behalf of Ms. Nadeau alleging that the termination of her employment was discriminatory, pursuant to the Canada Human Rights Act. Specifically, the Union claimed that Ms. Nadeau was discriminated against on the basis of mental and physical disability as a result of being dismissed from her employment, in part, due to alcoholism.
The decision
The grievance was put before Arbitrator Huguette April. Arbitrator April found that the charges of misconduct made by the Company against Ms. Nadeau were proven on a balance of probabilities and constituted serious transgressions. However, Arbitrator April also noted that this did not mean that the termination of Ms. Nadeau’s employment in response to those transgressions was not discriminatory.
It is well-established at law that alcohol dependency constitutes both a mental and physical disability for the purposes of Canadian human rights legislation. However, an employer generally cannot be liable for discrimination in relation to alcohol dependency if it is not aware that an employee does, or if there is no reasonable basis to believe that an employee may, suffer from alcohol dependency. In this case, a primary issue was whether the Company had sufficient knowledge of Ms. Nadeau’s issues with alcohol dependency to engage its obligations under the Canada Human Rights Act.
Arbitrator April found that Ms. Nadeau suffered from alcohol dependency and, as of July 8, 2022, the Company had sufficient information to know that Ms. Nadeau suffered from alcohol dependency. Arbitrator April also found that the incident of June 30, 2022, was a direct result of Ms. Nadeau’s alcoholism. On this basis, Arbitrator April found that, pursuant to the Canada Human Rights Act, the Company was subject to a duty to accommodate Ms. Nadeau’s disability as of July 8, 2022. In essence, this meant that the Company had to consider all reasonable options for accommodating Ms. Nadeau’s disability prior to terminating her employment, and that the termination of her employment would not be discriminatory only if such accommodation options would have posed “undue hardship” for the Company.
Ms. Nadeau argued that there were a number of reasonable accommodation options available to the Company which would have not caused undue hardship, including installing an alcohol testing device in her truck or finding other work for her. While it is debatable as to whether these accommodation measures would have be adequate or presented undue hardship, ultimately, the fatal flaw in the Company’s decision-making was not considering these accommodation options prior to terminating Ms. Nadeau’s employment. As a result, the Company was found to have discriminatorily dismissed Ms. Nadeau and was ordered to reinstate her to her previous position.
Key takeaways
Decisions like this can be difficult for employers to digest. On the one hand, no employer wants to discriminate against their employees, but on the other hand, no employer wants to expose their employees, customers, or the public to risk of death or injury from workplace impairment. However, this case provides some helpful insights into how employers can handle these situations in a way that avoids both outcomes.
The Company’s biggest mistake was terminating Ms. Nadeau’s employment without considering and potentially implementing accommodation measures. Had the Company considered such accommodation options and found that they were either inadequate or presented undue hardship, then it likely could have dismissed Ms. Nadeau without being liable for discrimination. In other words, never shoot first and ask questions later.
This decision is also a reminder to employers to not be willfully blind if an employee exhibits symptoms or indicia of alcohol dependency. If an employer has a reasonable basis to believe that an employee may suffer from alcohol dependency, it has a duty to inquire with the employee before taking steps that may adversely impact them in relation to their potential alcohol dependency.
Lastly, this decision should not be taken to mean that the duty to accommodate requires employers to expose their employees or others to risk of harm or injury. As Arbitrator April noted in her decision, “employers have the right to demand that an employee not report to work in a state of inebriation, even if he suffers from an alcohol addiction.” While an employer may not be lawfully permitted to terminate an employee who suffers from alcohol dependency without first taking certain steps, that does not mean that the employer is required to allow the employee to continue working in the ordinary course if the employee exposes others to risk of harm.
Should you have any questions regarding the duty to accommodate in the transportation context, please reach out to any member of Miller Thomson’s Transportation & Logistics team or Labour & Employment team.
