The law can be a tricky thing. At one moment, it might seem like a solution in your favour is within reach, and in some cases, a judgment may be handed down. However, appeals can sometimes overturn previous decisions. For instance, this blog examines an Alberta Court of King’s Bench decision where the appeal court found errors in the arguments of the winning party from the original case.

Keeping current with appeals is a big part of how a successful employment law lawyer builds a successful case in wrongful dismissal situations.

Employee tests positive for cocaine

The employee began working for the employer in August 2010 as a Journeyman Millwrights Assembler. This position was classified as a safety-sensitive position, and as such, the employee was made to take drug tests from time to time. On March 15, 2016, the employee was asked to take a random drug and alcohol test, which came back as “non-negative” for cocaine.

As a result, the employee was suspended from his duties and pursuant to the employer’s policies, was referred to a Substance Abuse Professional (“SAP”).

It should be noted that there was no evidence to show that the non-negative test was never shown to be a positive test, which was the next step in the policy’s procedures. However, the employee admitted to having used cocaine four or five days before the test occurred but denied that he had a substance abuse disorder, which was contrary to what the SAP found.

The SAP, who met with the employee for 60-90 minutes, wrote that the employee “met the criteria for a moderate to severe substance abuse disorder for alcohol and cocaine.”

The results of the SAP’s finding were that the employee was to attend a 19-26-day residential treatment program for substance dependency. He looked into these programs, but the one he had applied to would not take him because he did not admit to having a substance abuse problem.

The employee then looked into whether he could take a three-week intensive outpatient treatment programme but did not sign the release form, which would have allowed the SAP to investigate that option further. Instead, the employee took his case to the province’s Human Rights Commission.

Human Rights Commission hears employee’s case on discrimination

The Human Rights Tribunal held a three-day hearing in which the Chairperson found the employee had made a prima facie case of discrimination after showing:

1. He has a characteristic protects from discrimination
2. He experienced an adverse impact in relation to his employment
3. The disability was a factor in the adverse impact

The court agreed that the prima facie case had been made out. The employee was no longer permitted to do his job because of his disability, and the court agreed with the Chairperson that his denial of having one does not impact his disability.

The Chairperson then applied what is known as the Meiorin test, which comes from a 1999 Supreme Court of Canada decision. The Meiorin test states that once a prima facie case has been made out, the employer then has to show:

1)      That the employer adopted the standard (i.e. its Drug and Alcohol Policy) 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 fulfillment of that legitimate work-related purpose; and

3)      The standard is reasonably necessary to accomplish 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 complainant without imposing undue hardship on the employer.

The Chairperson found that while the drug policy complied with the Meiorin test, the way that it was carried out did not comply because the only recommended path forward offered was the residential treatment program. The Chairperson found that the facts do not support the requirement for a residential treatment program, and the employer failed to consider whether alternative measures, such as outpatient treatment, would be acceptable.

Court looks at Human Rights Commission’s decision

The court found that the Chairperson clearly thought an outpatient program would be an acceptable alternative. While they may think that, the court found no evidence to show that it would be acceptable and effective. At the same time, the Commission had heard evidence of why a residential treatment program would work, with the SAP stating that the employee had a high probability of a severe substance use disorder and that a residential treatment program would be the best way to treat it.

Ultimately, the court found that for the employee to make a successful case of discrimination, he would have had to show that he could have been accommodated by an outpatient program and asked the employer to approve it. He didn’t make that critical step, so the court overturned the Commission’s decision.

Calgary and Strathmore Employment Lawyers Advising Clients On Wrongful Dismissal Matters

If you’re facing a wrongful dismissal or employment law issue, having experienced legal representation is crucial. Getz Collins and Associates, with offices in Calgary and Strathmore, Alberta, are experienced in employment law and can help you navigate complex legal matters. Contact us today at (587) 391-5600 or online for a consultation.