I was a panelist at Insight's Labour Law Conference this morning dealing with workplace accommodation issues. My panel dealt with hybrid discipline.
My co-panelist was Arbitrator Stan Lanyon who decided the Gooding decision, now on its second round of reconsideration before the BC Labour Relations Board. In British Columbia, the BC Labour Relations Board has decided that when there is a causal connection between workplace misconduct and a disability then arbitrators (and employers) must determine which part of the misconduct is due to a disability, and thus non-culpable, and which part is not affected by the disability and is thus within the control of the employee and is culpable. Each category of conduct is analyzed using the appropriate approach: Wm. Scott test to the culpable and the Meioirn test to the non-culpable conduct. The BC Court of Appeal has confirmed that those two tests must be kept separate. An arbitrator can fashion a remedy that takes into account both approaches. So for example, in Gooding, where a liquor store manager who had an alcohol addiction stole liquor from his employer, the arbitrator, applying the hybrid discipline theory, ordered reinstatement with a last chance agreement (this is a thereapeutic non-culpable approach) to a lower rated position (this is the culpable discipline approach). Employers, unions, and indeed arbitrators are struggling with fashioning appropriate remedies. Hopefully the Labour Relations Board will take the opportunity in its review of the Gooding award to refine this area of labour law.
On another note, even if there is no nexus or causal link between the disability and the misconduct, and the case is to be approached on a purely culpable basis, the fact that a grievor suffers from an addiction or a mental disability is one of the circumstances that arbitrators, and employers, must take into account under the second and third questions in Wm. Scott (i.e. is the discipline excessive in all of the circumstances and if it is, what is appropriate?)
The BCLRB decision in Fraser Lake Sawmills can be found at: http://www.lrb.bc.ca/decisions/B213$2002.pdf
The BC Court of Appeal decision in HEABC v. BCNU (Bergen) can be found at:
http://www.canlii.org/en/bc/bcca/doc/2003/2003bcca608/2003bcca608.html
The Insight Conference URL is: http://www.farris.ca/News/attachments/159/Duty%20to%20Accommodate%20Conference%20Brochure.pdf
Wednesday, November 14, 2007
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4 comments:
Interesting issue, does this mean that addiction is to be treated as a health issue whereby the duty to accomodate applies as it would to other health or psychological disorders?
Addiction has been recognized as a disability under the Human Rights Code. Therefore, yes, the duty to accommodate applies. Infact, in a workplace setting hybrid discipline usually involves misconduct by employees who are either suffering from some sort of addiction or a mental disability.
Addiction has been recognized as a disability under the Human Rights Code. Therefore, yes, the duty to accommodate applies. Infact, in a workplace setting hybrid discipline usually involves misconduct by employees who are either suffering from some sort of addiction or a mental disability.
Hi Carmela....truly an interesting concept....perhaps I haven't read enough cases on disability and duty to accommodate, but it just seems wrong to me that an employer bears the burden of getting treatment for an employee that has an addiction problem. The employer doesn't force people to do drugs and come to work. Seems strange, but anyway. I could see this being reasonable if the job was in sales and the employee had to "wine and dine" clients. In this case, an addiction would have a better chance of forming as a direct result of the nature of the work. In a liquour store; however, the bottles are sealed and you aren't required to "test" any of the products.....I digress. I realize I'm a little off the topic of hybrid discipline. Just thought I'd add my two cents.
Hope you keep this Blog going. I really enjoyed it when you brought recent cases up in class. I'll check in again in a couple of days.
Jason
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