National Post

Denial of addiction proves costly

- Howard Levitt

Ian Stewart probably believed he had a human rights complaint he could not possibly lose. He had been terminated from his employment after testing positive for cocaine use. And, he must have presumed, everyone knows that substance abuse is a protected ground in human rights legislatio­n in Canada. He could not have been more wrong.

Stewart drove a loader at a coal mine owned by Elk Valley Coal Corp. in Alberta. To ensure workplace safety, Elk Valley implemente­d a drug and alcohol policy requiring employees to disclose any substance addiction. Under that policy, any disclosure would not result in discipline, but instead an offer of treatment. But it warned that infraction­s leading to an accident would lead to discipline up to and including terminatio­n. It was called the “no free accident” rule.

Its purpose was to encourage employees with substance abuse problems to disclose them and seek treatment. Stewart attended training on the policy and signed a form acknowledg­ing that he received and understood it.

Following that, the loader Stewart was driving was involved in an accident and he tested positive for cocaine.

Stewart claimed he had a cocaine addiction, which caused him to deny the existence of his addiction and caused him, contrary to the policy, to not disclose his addiction.

Elk Valley offered to reinstate Stewart after six months and the successful completion of a drug r ehabilitat­ion program, the cost of which would be shared equally. Stewart refused, confident his addiction would operate as a “get out of jail free” card.

Except it didn’t. After Elk Valley dismissed Stewart for cause, he launched a complaint with the Human Rights Tribunal in Alberta.

He believed that human rights legislatio­n prohibited discrimina­tion based on a disability, which cocaine addiction clearly was.

However, he lost before the Human Rights Tribunal, the Alberta Court of Queen’s Bench, the Court of Appeal and the Supreme Court of Canada. The crucial finding that justified Stewart’s terminatio­n for cause was that he was terminated for failure to disclose his addiction contrary to the company’s policy — not by reason of his addiction. In other words, despite his addiction, Stewart had the capacity to comply with the policy and make the necessary disclosure but failed to do so. His disability did not factor into his dismissal.

This is an important case for employers who deal with employees who claim that one function of their alcohol or drug addiction is denial and therefore the addiction itself results in their not disclosing or lying about their condition. There are valuable lessons in this case for employers who have drug and alcohol policies to ensure the workplace is a safe one.

This policy had the following features, which resulted in the employer’s successful defence against Stewart’s claim for discrimina­tion: ❚ It required the employee to voluntaril­y disclose drug use that may impair the ability to work safely; ❚ It appropriat­ely addressed safety, privacy and human rights issues; ❚ It did not punish the employee for voluntary self-disclosure and, in fact, offered treatment; and ❚ It explicitly identified the consequenc­es of breach of the policy as being discipline up to and including terminatio­n. Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p. m. on Newstalk 1010 in Toronto.

 ?? GETTY IMAGES / ISTOCK PHOTO ?? An employee who failed to disclose his addiction and take advantage of treatment found his addiction did not prevent the employer from terminatin­g him for cause.
GETTY IMAGES / ISTOCK PHOTO An employee who failed to disclose his addiction and take advantage of treatment found his addiction did not prevent the employer from terminatin­g him for cause.
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