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Breach of Last Chance Agreement Warrants Termination
November 14, 2007

The termination of an addicted employee who violated a Last Chance Agreement (LCA) was recently upheld at arbitration. While the employee’s addiction was a disability triggering the duty to accommodate, the employer was found to have discharged the duty given the employee’s dishonesty about his continued drug use and extensive rehabilitation treatment funded by the employer.

The grievor, a brewery worker addicted to crack cocaine, was absent from work without leave for more than six weeks in early 2006. After his employer began to investigate his absence, he admitted his addiction and asked for accommodation. The employer accepted his explanation for the absence, paid for 10 weeks treatment at two rehabilitation centres, and agreed to allow him to return to his employment on the terms of a LCA. Despite the treatment, the grievor failed a drug test required under the LCA before he could resume his duties. He then lied about the reason for his failure. His employment was terminated and the union filed a grievance.

Applying a “hybrid” analysis that considered both the grievor’s non-culpable disability and his culpable conduct in lying about his continued drug use, the arbitrator concluded that the grievor violated “the first, most important and fundamental commitment in the LCA” by continuing to use drugs. He found that the employer had met its obligation to accommodate the employee’s disability by allowing the grievor to return to work on the terms of the LCA after his lengthy unauthorized absence and by providing extensive rehabilitation treatment. This accommodation, together with the employee’s dishonesty, made the termination decision reasonable. As a result, the grievance was dismissed.

Molson Canada v. Brewery, Winery and Distillery Workers, Local 300 (Chrysler Grievance), [2007] B.C.C.A.A.A. No. 197