Saturday, August 19, 2017

The SCC weighs in on termination of employment for breach of policy as distinct from prima facie discrimination for drug addiction

In the SCC case:

Brent Bish on behalf of Ian Stewart, Appellant


Elk Valley Coal Corporation, Cardinal River Operations and Alberta Human
Rights Commission (Tribunal), Respondents 

Which can be found at

The SCC concluded:

[5] Like the majority of the Court of Appeal, I find no basis for interfering with the decision of the Tribunal. The main issue is whether the employer terminated Mr. Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). This is essentially a question of fact, for the Tribunal to determine. After a thorough review of all the evidence, the Tribunal concluded that the employer had terminated Mr. Stewart’s employment for breach of its Policy. The Tribunal’s conclusion was reasonable. 

The decision of the SCC was based on the application of the following principles which must underpin any policy imposed by an employer and used to justify a termination for breach of the subject policy:

[8] The Tribunal, at para. 131, relied on British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”) in setting the test for a bona fide occupational requirement (BFOR). Meiorin provides that:
An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. [para. 54] 

The SCC repeated the following salient facts as a basis for deferring to the decision of the Alberta Human Rights Tribunal:

[1] Ian Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. The employer implemented an Alcohol, Illegal Drugs & Medication Policy, aimed at ensuring safety in the mine (“Policy”). Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated a policy succinctly dubbed the “no free accident” rule. The aim of the Policy was to ensure safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromised safety. Employees, including Mr. Stewart, attended a training session at which the Policy was reviewed and explained. Mr. Stewart signed a form acknowledging receipt and understanding of the Policy.
[2] Mr. Stewart used cocaine on his days off. He did not tell his employer that he was using drugs. One day, near the end of a 12-hour shift, Mr. Stewart’s loader was involved in an accident. No one was hurt, but Mr. Stewart tested positive for drugs. Following the positive drug test, in a meeting with his employer, Mr.  Stewart said that he thought he was addicted to cocaine. Nine days later, his employer terminated his employment in accordance with the “no free accident” rule.