An employer has a duty to accommodate an employee suffering a disability or condition that may limit the ability to do the tasks associated with a job. This duty to accommodate can extend even to substance abuse addictions like alcoholism. A growing body of decisions from courts, human rights tribunals and labour relations boards has addressed the issue and determined what accommodation entails. A decision of the Alberta Labour Relations Board in early 2022 addresses the extent of this duty.[1]

The duty to accommodate is a concept that has application in both unionized and non-unionized work environments. Essentially, it means that employers are required to make adaptations to their rules, policies and even physical environments to ensure there are no negative effects on any employee because of physical or mental disability, religion, gender or any of the other protected grounds set out in section 7(1)  of the Alberta Human Rights Act.[2] Employers are expected to make such accommodations as are necessary up to the point of undue hardship for the employer. Undue hardship is a fluid concept that is very much dependent on an employer’s circumstances. For example, a large company with hundreds of employees might be expected to retrain and transfer an employee to another job with different tasks within the company but that may not be feasible for a small business of five or fewer employees.

The case of Altasteel arose in a unionized steel production facility. The Grievor  is a 46-year-old male with a 17-year work history at the steel plant. He obtained certification in 2012 as a Journeyman Millwright and from 2012-2019 was a Millwright in the Steelmaking Mechanical and Maintenance Shop. His work history was satisfactory for 16 of those years, right up to a year or so prior to his dismissal. That is when a series of performance related incidents began occurring which escalated to inappropriate pranks and communications with co-workers that involved sexual innuendoes. Reported incidents included a one-day suspension for smoking in a restricted area, a two-day suspension for coming in late, a warning about drawing a sexually explicit image on a greeting card for another employee, and a three-day suspension for drawing another sexually explicit image on a card for a co-worker.

An already troublesome situation took a turn for the worse with violations of health and safety protocols that put both the Grievor’s wellbeing and that of his co-workers at risk. A co-worker slathered grease into the Grievor’s toolbox and words were exchanged between the Grievor and a supervisor. Following an investigation, the Grievor was given a two-week suspension for creating a hostile work environment. He was given written notice of this being a final warning, with any further misconduct likely resulting in loss of employment.

The climax to what in retrospect would be deemed by company management to be the culmination of a series of incidents escalating in seriousness occurred about two weeks after the Grievor returned to his job following the latest suspension. The Grievor and two co-workers had been repairing a large piece of equipment used to handle molten steel. Each of the three workers had begun their shift with a working radio and throughout their shift, they kept the crane operator informed as to their coming and going, as required by safety protocols. At some point during the shift, the battery in the Grievor’s radio began to beep which signified the battery was dying so the Grievor shut his radio off. He subsequently returned, alone, to the site to check on the work that had been done earlier but without a working radio, without the crane operator’s permission to be there, and without even informing the operator. When a ladle of molten steel is to be transported by the crane, there is first of all an announcement over the radio telling workers to clear the area, followed shortly after by a siren. The Grievor did not vacate because he did not have working radio, however he did hear the siren but by then it was too late to clear the area. As a result, he came dangerously close to being struck by the ladle of molten steel. His supervisor ordered him to complete an incident report later that day.

For management, the ladle incident was the last straw. Management saw a progression of incidents displaying “a persistent disregard for the rules and procedures of AltaSteel.” On November 18. 2019, the Grievor’s job was terminated for cause. Consequently, the union filed a grievance arguing the Grievor had been wrongfully dismissed.

The Grievor testified that shortly after his dismissal, his friends and family confronted him about his alcoholism, which prodded him into finally realizing he had an alcohol problem. His doctor had diagnosed “chronic alcohol dependance disorder.” He further testified that for the year prior to getting fired, he heavily drank every day, often came to work impaired., and even drank while on the job. Finally, he blamed alcohol consumption for the various behavioral  incidents over the past year, which included tardiness and inappropriate comments.

After hearing the evidence, the Arbitrator decided that a human rights analysis was required. One type of discrimination is adverse-effect discrimination. There is a three-part test for establishing a prima facie case of adverse-effect discrimination:

1. The claimant has a characteristic that is protected from discrimination under human rights law;
2. The claimant has experienced an adverse impact; and
3. The claimant must show the protected characteristic was a factor in the adverse impact.

In this case, the Grievor suffered from chronic alcohol dependance disorder, which qualifies as a physical and mental disability and thus is a protected ground from discrimination under section 7 of the Alberta Human Rights Act. The Grievor suffered an adverse impact; he was suspended from his job a few times and eventually terminated. Having established a prima facie case of discrimination, the question next posed is whether the employer discharged its onus to accommodate the disability. In its analysis of the Arbitrator’s decision, the Labour Relations Board did not look to the correctness or not of the decision, but rather to asking whether the decision was based on internally coherent reasons which could be justified on the facts and the law. With regard to the findings of fact, the Board regarded the Arbitrator as being in a far preferable position regarding an assessment of the evidence and testimony before them. In reviewing the record of evidence and testimony before the Arbitrator, the Board decided that the finding of fact that the Grievor had an alcohol dependency problem was an intelligible and rational one.

Finally, the Board reviewed the Arbitrator’s finding that the Employer had failed its duty to accommodate the Grievor’s disability. The Board agreed with the Arbitrator’s finding that the Employer had a duty to question whether the Grievor was suffering a psychological or a substance abuse problem, especially since the Grievor had 16 years of prior satisfactory work performance with the same Employer. In upholding the Arbitrator’s decision and dismissing the Employer’s application for review, the Board agreed that a proper enquiry into the Grievor’s condition should have uncovered his disabling alcoholism. At that point, the Employer should have met the requisite duty to accommodate by, among other things, getting the Grievor into the company’s Employee Assistance Programme.

[1] Altasteel Ltd. v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5220, 2022 CanLII 1013 (AB LRB), <https://canlii.ca/t/jlr8t

[2] The grounds set out in section 7(1) are: race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.