A sawmill has a zero tolerance policy for onsite drug and alcohol use. A manager notices that a superintendent is drunk and smells of alcohol. The manager suspends the superintendent for the rest of his shift and warns him that if he shows up to work drunk again, he’ll be subject to more serious disciplinary actions including possible termination. The superintendent completes a three-month residential treatment program, then returns to work. However, his work is unsatisfactory. He also often shows up “glassy-eyed” and smelling of alcohol. At the sawmill’s insistence, the superintendent completes another three-month treatment program and agrees to monitoring for two years. But a few months after the superintendent returns to work, he shows up drunk for his shift. He takes a urine test, which comes back positive for alcohol.
Can the sawmill fire the superintendent?
A. No. The superintendent didn’t sign a “last chance” agreement in which he acknowledged that he would be fired if he came to work drunk again.
B. Yes. The sawmill’s duty to protect its employees from the safety risk posed by the superintendent outweighs its duty to accommodate his disability.
C. No. It isn’t an undue hardship for the sawmill to continue to accommodate the superintendent’s disability.
D. Yes. The sawmill fulfilled its duty to accommodate the superintendent by giving him leave on two occasions to seek treatment and would be justified in firing him now for once again coming to work drunk.
D. The sawmill would be justified in firing the superintendent after making reasonable accommodations for his disability.
The facts of this scenario come from an actual labour dispute in British Columbia in which a sawmill fired a superintendent with a history of alcohol-related problems for showing up to work drunk and smelling of liquor. The superintendent then filed a grievance against the sawmill for wrongful dismissal, arguing that he was disabled and the sawmill failed to accommodate his disability. The sawmill said it did make a reasonable effort to accommodate his disability but that keeping him around would amount to undue hardship.
The arbitrator sided with the sawmill and dismissed the grievance. The arbitrator said the sawmill had accommodated the superintendent by enabling him to get residential treatment on two occasions and by letting him keep his job while following a monitoring and out-patient treatment program. But the superintendent also had to do his part and comply with the monitoring and treatment program and abstain from drinking, said the arbitrator. The superintendent failed to do these things. Although recovering alcoholics can have relapses, the superintendent’s second relapse was inexcusable, the arbitrator said. And because the superintendent presented “an extraordinary safety risk” to himself and his co-workers, it would be an undue hardship to require the sawmill to continue to employ him and run the risk that he’d have another relapse, the arbitrator ruled.
Why Wrong Answers Are Wrong
A is wrong because although last chance agreements are useful in these situations, they’re not legally required. A last chance agreement is one where the employer, the employee and the union agree that a further infraction will result in the employee’s termination. It gives wayward employees one final chance to clean up their acts and puts them on notice that if they don’t, they’ll be terminated. Here, the superintendent had ample notice that being drunk at work wasn’t acceptable and that coming to work drunk again could cost him his job.
B is wrong because the sawmill must balance its duty to provide a safe workplace for its employees with its duty to accommodate the superintendent’s disability. So although the superintendent was a safety risk when he was drunk on the job, the sawmill couldn’t have fired him the first time he came to work drunk or probably even after his first relapse. But the second relapse is a different story. At that point, requiring the sawmill to continue accommodating the superintendent’s disability would completely undermine its ability to fulfill its duty to protect its other employees and so firing him would be warranted.
C is wrong because it would be an undue hardship to force the sawmill to keep trying to accommodate the superintendent’s disability after two failed attempts. A drunk employee in the sawmill’s safety sensitive environment poses a serious safety risk, both to himself and to his co-workers. Moreover, the superintendent’s second relapse eroded the employment relationship and destroyed the sawmill’s trust in him.
Show Your Lawyer
International Forest Products Ltd. (Hammond Cedar Division) v. United Steelworkers of America Local 1-3567,  B.C.C.A.A.A. No. 184, July 26, 2005