Successful Dismissal for Addiction Dependency by Establishing Undue Hardship on Employer
When it comes to the tough decision to dismiss an alcohol or drug addicted employee, many companies spend a lot of money, incur significant management, staff and operational disruption, and risk reputational damage, just to avoid the judicial system. Well, not that I always trust the judicial system for consistent and reasonable decisions, employers might find some comfort in Amalgamated Transit Union Local 113 v. Toronto Transit Commission, 2012 CanLII 51356 (ONLA). I found this case and a good article – “Ten Times The Effort” To Manage Employee’s Absenteeism, Addictions: Dismissal Upheld – by Adrian Miedema at Dentons. But, even though there would be less demand for insurance if the courts never surprised an employer defendant, I am not going to worry this one case will put me out of a job.
In this arbitration, the TTC was able to satisfy the Arbitrator that they could establish a factual basis the employee was impaired while on duty. The employer was also able to show their efforts to accommodate the employee’s disability (substance dependency) were substantial and the accommodation and excess absenteeism was to the point of undue hardship.
The Risk Management Spin: as an employer you need to have a solid paper trail of acknowledging and attempting to remedy both the absenteeism and the disability, including escalating consequences and sick benefits for rehabilitation programs. But, undue hardship does not mean that the company would have to go to the extent of proving they would go out of business if they retained or reinstated the employee.
The Insurance Spin: Employment Practices Liability insurance can help an organization manage litigation defence costs and even surprise damages when the court is not satisfied with the employer’s paper-trail and awards damages above statutory obligations or based on tortious actions.
Greg Shields is a D&O, Professional Liability, Employment Practices Liability, Fiduciary Liability and Crime insurance specialist and a Partner at the University and Dundas (Toronto) branch of Mitchell Sandham Insurance Services. He can be reached at gshields@mitchellsandham.com 416-862-5626, or Skype at risk.first.
CAUTION: This article does not constitute a legal opinion or insurance advice and must not be construed as such. It is important to always consult a registered and truly independent insurance broker and a lawyer who is a member of the Bar or Law Society of the relevant jurisdiction with regard to this material before making any insurance or legal decisions. All material is copyrighted by Mitchell Sandham Inc. and may not be reproduced in any form for commercial purposes without the express written consent of Mitchell Sandham Inc. Anyone seeking to link this document from any external website must receive the consent of Mitchell Sandham Inc. by sending an e-mail to gshields@mitchellsandham.com
