TOP COURT TACKLES DRUG ADDICTION DISMISSALS

Mutual Obligations Required When Dealing With
Employees Who Have Drug Problems

Two B.C. Court of Appeal rulings involving drug-addicted workers who
had been dismissed will better define the role of an employer in
dealing with addicted employees, and will likely require employees to
take more responsibility for their recovery, a lawyer involved in both
cases said Tuesday.

"They are both important decisions because they go a long way to
clarifying the law in this area," said Peter Gall, who represented two
companies seeking to appeal arbitration decisions to reinstate
dismissed employees.

Gall said that up until now the issue of dealing with drug-addicted
employees seemed to be "one-sided," with many arbitration decisions
leaning towards reinstatement.

"Now we know it is not never ending and we know there are mutual
obligations," Gall said in an interview.

"[We know] that an addicted employee also has a responsibility to take
all reasonable steps to deal with his or her addiction," he said.

In one of the two written rulings, Chief Justice Lance Finch upheld an
appeal by the employer's association at Kootenay Boundary Regional
Hospital, finding in essence the hospital was right to dismiss a nurse
who was stealing drugs to feed his addiction.

An arbitrator had initially found the hospital was wrong to dismiss
Ron Bergen, a registered nurse who had been addicted to drugs since
1996.

In his ruling, Finch overturned that decision, saying the arbitrator
did not properly consider the responsibility Bergen had to participate
in his own rehabilitation.

"The employer's duty to accommodate Mr. Bergen was matched by his duty
to facilitate the accommodation process," Finch wrote.

"Addiction, as a treatable illness, requires an employee to take some
responsibility for his rehabilitation program."

Finch went on to say that Bergen, who encountered addiction problems
twice with previous employers, did not live up to that responsibility.
As a result, Finch ruled, the employer's duty to accommodate Bergen
and his addiction was "exhausted."

In the second case, which was heard at the same time as the first,
Finch upheld an arbitrator's ruling to reinstate an employee of Kemess
Mines Inc.

The mining company dismissed Mark Gardiner from his job at an open pit
mine in after he was found smoking marijuana in his room at the mine
site. The company has a documented "zero-tolerance" policy on drug
use, which it said Gardiner broke by using drugs.

Gardiner had worked at the mine in alternating two-week shifts for
almost seven years, and would take enough marijuana each time he went
to work to last his entire stint.

In Gardiner's initial appeal, an arbitrator found that Gardiner should
be suspended from his job at the mine for 10 months without pay but
not dismissed.

In that decision, the arbitrator said the company should take back
Gardiner with several conditions -- including that he remain abstinent
and complete a treatment program -- because it had not fulfilled its
duty to accommodate him and his addiction.

In his written ruling, Finch upheld that finding, saying it struck an
acceptable balance of responsibility between Gardiner and his employer.

"The arbitrator's award does not absolve Mr. Gardiner of all personal
responsibility for his failure to comply with the drug policy or his
failure to seek assistance when he knew he had a problem," Finch wrote.

"In considering the culpable elements of the conduct, the arbitrator
dealt with the fact that Mr. Gardiner knew he was breaching the
employer's drug policy every time he possessed marijuana at the mine
site," he added, pointing to the 10-month suspension.

"In my view, the arbitrator did not err in holding that the employer
had not accommodated Mr. Gardiner to the point of undue hardship," he
added, explaining his reasons for denying the appeal.