Skip to Content

Employee’s refusal to extend Return to Work Agreement, acknowledge alcohol dependency, not just cause

In Taylor v. New Westminster (City) (Vancouver Registry S084283, August 19, 2009), the court found that the employer did not have just cause to dismiss an employee who refused to sign an extension to a Return to Work Agreement that required him to acknowledge that he had an alcohol dependency.

Background

At the time of his dismissal, the employee was 54 years old, had 16 years of service and earned a salary of approximately $90,000 per annum. He was Manager of Fleet Services, a safety sensitive position in that he supervised a team of mechanics who performed maintenance and repair work on the employer's various vehicles, including those for the fire and police departments.

Until February 2007, the employee had "an excellent work history" and the employer had "no concerns about his safety in the workplace" (para. 9).

The Incident

In February 2007, the employer became aware that the employee had consumed a bottle of alcoholic cider at work. Given that an auto shop was an inherently dangerous work environment, the employer did not tolerate the consumption of any alcohol by its employees on the job. The employee was repeatedly untruthful when he was initially confronted about drinking the alcohol but eventually apologized and then apologized again a few days later.

Independent Medical Examination

The Employer's response to the incident was two-fold:  (1) it suspended the employee for five days without pay; and (2) it required that he be assessed by Dr. Baker, an expert in the field of addictions medicine.

In advance of the appointment, the employer provided Dr. Baker with a letter of instruction in which it set out background information about the employee and stated that the employer was seeking an Independent Medical Examination ("IME") to answer the following questions:

  1. did the employee have an alcohol dependency that warranted receiving formal recognized treatment
  2. did the employee have a condition that would impact on his ability to carry out his role as Manager of Fleet Services?
  3. was there anything in the employees medical conditions that would prevent him from managing the department,  either on a temporary basis or permanent basis?
  4. what are the employee's limitations and restrictions; specifically what is able to do and not do?

The employer also asked the doctor if there were "any additional complications with his health that might affect his ability to perform his duties on a regular fulltime basis in the future?"

The Doctor's Assessment

Dr. Baker found that the employee:

  1. demonstrated many of the manifestations, symptoms and signs of alcoholism;
  2. suffered from other medical conditions that might explain some of his symptoms; and
  3. overall presented a complex and medically unstable case.

Although Dr. Baker was highly suspicious that the employee suffered from alcohol dependency, he was unable to make such a diagnosis on the available data and did not do so. However, taking into account the employee's overall medical presentation, the doctor concluded that the consumption of any alcohol would jeopardize his health and level of functioning at work (para. 20).

Doctor's Recommendations Going Forward

Going forward, Dr. Baker recommended that the employee:

  1. be placed on a medical leave for two to three months in order to obtain treatment;
  2. be required to enter into a Monitoring Agreement (or relapse prevention agreement), which is a therapeutic document that incorporated the doctor's treatment recommendations (the "Monitoring Agreement"); and
  3. be required to enter into a Return to Work Agreement ("RTWA"), which clearly sets out the employer's expectations with respect to the employee's attendance, performance and behaviour and safety. One requirement of the RTWA would be that the employee be in compliance with the Monitoring Agreement.

Dr. Baker recommended that the Monitoring Agreement be in place for one year, with the proviso that in the event of any non-compliance or relapse, it be extended for a second year.

The Monitoring Agreement

The Employer retained an occupational health nurse to act as the employee's monitor and it was the nurse who entered into the Monitoring Agreement with the employee. The employer was not privy to its terms.

Pursuant to terms of the Monitoring Agreement, which were revealed as part of the litigation, the employee:

  1. was required to abstain completely from alcohol;
  2. attend meetings with the nurse;
  3. submit to random urine, blood, or breath alcohol testing; and
  4. attend Alcoholic Anonymous meetings three times a week. 

The nurse was responsible for determining whether the employee was in compliance with the Monitoring Agreement. She was also required to provide formal quarterly reports to the employer and also notify the employer if a particular problem arose with compliance.

The Return to Work Agreement

The employer also required the employee to enter into the RTWA. The terms of the RTWA included:

  1. an acknowledgment by the employee that he had an alcohol dependency problem;
  2. the employee's agreement to remain compliant with the Monitoring Agreement; and
  3. the employee's acknowledgment that, in the event of non-compliance with the Monitoring Agreement, he would be immediately removed from his position and placed on unpaid leave until a full assessment/investigation was completed.

The Employee's Performance on Returning to Work

Between April 2007 and April 2008, the employee was generally, although not perfectly, compliant with the Monitoring Agreement in that, among other things:

  • He took about 20 random alcohol tests, none of which revealed he had been consuming alcohol;
  • He attended many mutual support meetings, although not always three times per week.

There were also no reports of any problems whatsoever with the employee's work performance.

In February 2008, however, the employee fell down stairs at work, experienced loss of consciousness and cut his head. Although he was taken to the hospital following the fall, he was not subjected to alcohol testing.

Due to this accident and his imperfect compliance record with the Monitoring Agreement, the employer required that the employee to be re-assessed by Dr. Baker. The re-assessment took place at the end of March 2008.

Dr. Baker concluded that the employee was not fit for safety sensitive duties until his hospital records in relation to the fall were examined. Accordingly, the employee was temporarily removed from his safety sensitive duties on April 2, 2008.

On review of the hospital records, Dr. Baker concluded that the likelihood of the employee having had an relapse of active alcohol dependece was "extremely high".  As such, Dr Baker recommended that:

  1. the employee be removed from his safety sensitive position for two months and;
  2. the Monitoring Agreement, and thus the RTWA, be extended for another 12 months.

The Return to Work Agreement Extension

Like its predecessor, the RTWA extension ("RTWA Extension") required the employee to acknowledge that he had an alcohol dependency. The employee objected to this clause, as well as other aspects of having the monitoring extended, and he refused to sign the RTWA Extension in the form drafted.  The employer did not consult further with Dr. Baker as to the necessity of the clause.

As a result of the employee's refusal to sign the RTWA extension, the employer placed him on an immediate unpaid leave. The employer subsequently provided him with one additional opportunity to sign the RTWA extension, but he declined as believed he did not present a safety risk due to alcohol dependency. The employer thereafter terminated his employment for just cause.

The Human Rights Complaint

The employee first filed a complaint with the BC Human Rights Tribunal ("BCHRT"). The BCHRT dismissed the complaint, without making any findings of fact, on the basis that there was no reasonable prospect the complaint would succeed (2009 BCHRT 139).

The Court's Analysis of Whether the Employer had Just Cause for Dismissal

The employee also filed a wrongful dismissal lawsuit.  In setting out the applicable law on just cause, court stated that:

A psychiatric, medical or addictive disorder may, in combination with other behaviour, provide just cause for dismissal. For example, if the illness of alcoholism affects an employee's work performance, depending on all the circumstances, it may properly provide a basis  upon which he or she can be dismissed for cause. This is particularly so if reasonable accommodations offered are offered and refused...

If a disabled employee refuses to discharge his or her duty to participate in reasonable accommodation, the employer will be justified in terminating the employment contract...(paras. 66-67).

In its application of the law to the facts, the court agreed with the employer's position that the employee had breached his duty of trust and faithfulness by consuming alcohol at work and lying about it. However, the court further stated that the employer could not rely on this single act of misconduct as just cause for termination a year later given that it had already chosen to discipline him with a five day suspension.

The court also agreed with the employer's position that it was reasonable to respond to the incident, and its concerns about the employee's health and safety and that of his colleagues, by obtaining Dr. Baker's assessment and recommendations. In this regard, the court stated that the employer acted appropriately in attempting to put in place an individualized plan to accommodate the employee.

The court did not accept the employer's position, however, that the employee breached his duty to facilitate a reasonable accommodation and work cooperatively with the employer by refusing to sign the second Monitoring Agreement/RTWA Extension. 

In this regard, the court stated that it was not reasonable or necessary for the employer to demand that that the employee acknowledge that he suffered from alcohol dependency when: (1) he had not been diagnosed with the this problem, and (2) the employer had not been told that such a diagnosis had been made.  As the court stated: "...The issuance of an ultimatum requiring such an acknowledgment is not, in my view, an offer of reasonable accommodation" (para. 78).

On this point, the court further stated that:

When [the employee's] unimpeachable work performance throughout is considered together with the fact that the [employer] was unaware of his diagnosis, I conclude that it was incumbent upon the [employer] to investigate further and explore available options before providing [the employee] with an ultimatum...In the circumstances, the [employer] was obliged to consult further with [the employee] and, if he agreed, Dr. Baker to ascertain whether, as they incorrectly assumed, his acknowledgement of an alcohol dependency problem was accurate and required (para. 80).

Finally, in finding that the employee's refusal to sign the RTWA Extension did not provide the employer with just cause for termination, the court stated:

...I am satisfied that [the employee] was justified in refusing to sign the RTWA Extension. It was unreasonable for the [employer] to require him to acknowledge that suffers from a conditions with which he has never been diagnosed. This is particularly so given that he finds such an acknowledgment humiliating and demeaning, and believes it to be untrue. (para. 82)

Notice Period

The court awarded the employee a notice period of 18 months, pointing to the fact that he had been employed as an "upper-echelon middle manager" and had a limited number of alternative positions available to him.

Wallace Damages

The court declined to award Wallace damages, stating that, despite its error, the employer acted in good faith throughout in its dealings with the employee.

Mitigation

The employee had not found new employment since being dismissed, although he had made several applications for comparable position.

Notably, the court stated that the employee was not required to mitigate his damages by signing the RTWA Extension and returning to work, because a reasonable person would not, in the circumstances, be required to do so.

Estoppel/Res Judicata

The employer had argued that as a result of the BCHRT's decision, the employee was prevented from pursuing his court action based on the principles of estoppel or res
judicata
.

The court rejected this argument stating that the BCHRT proceedings, the issue was whether the employee had a reasonable chance of proving that he was the subject of discrimination. The court proceedings, in contrast, were concerned with whether the employer had just cause for dismissal. The court also noted that the BCHRT expressly made no findings of fact.