EMPLOYEE ADDICTION A TWO-WAY STREET

Staff as well as employers bear responsibility to recognize the problem and
deal with it

Employers have long known that addressing the problem of employee addiction
is not as easy as saying "you're fired." But recent court and arbitration
decisions are increasingly reminding addicted employees that they too have a
responsibility to get over their addiction, said Ogilvy Renault partner
Delayne Sartison.

The pendulum of responsibility is shifting back toward the addicted
employee, she said, stressing that employers still must accommodate
employees with addictions.

One 2003 arbitration decision found that a Riverview Hospital employee who
fraudulently took funds from the institution was partly to blame because she
chose to address her gambling addiction by stealing rather than by getting
help, Sartison said.

"This is a good example of an arbitrator saying, 'I accept that you did this
in part because of your addiction but that still doesn't get you off the
hook.'"

That mentality is a sea change from some decisions in the late 1990s, she
said. One controversial decision in 1997 saw administrators at the Castlegar
and District Hospital discover that they could not dismiss a unionized
drug-addicted nurse even after supervisors caught him under-dosing patients,
stealing the wastage and falsifying records.

The nurse regained his job twice after relapsing and continuing to steal
medication, Sartison said. A five-judge panel of the B.C. Court of Appeal
has yet to issue its judgment to a final appeal to whether the arbitrator in
the Castlegar case erred in his judgment, she added.

But the Labour Relations Board has already "hinted" that the Castlegar case
would likely have a different result under the current Labour Relations Code
that was revised in 2002, she said.

"The board strongly implied that a future case similar to Castlegar might be
decided differently," she said.

Sartison said the Labour Relations Board did its hinting as it was deciding
a separate case that also provides weight to the argument that the pendulum
of accountability is swinging back into the employees' court.

That case involved a Fraser Lake Sawmill employee who was dismissed for
regularly smoking marijuana at work. The arbitrator in that case found that
the employee chose to smoke pot at work and could have stopped if he
believed that the penalty were severe enough, said McCarthy Tetrault partner
Earl Phillips.

"If someone is choosing to go out and smoke dope on their coffee break at
work and it's not the uncontrollable act of an addicted employee, then it
can be treated as culpable conduct," Phillips said.

Phillips added that the case shows that it is harder to win using an
addiction defence than it was several years ago.

"People start abusing addiction as a defence and courts and arbitrators
start saying we don't accept that any more," he said.

One recent arbitration case involved a liquor store employee who pilfered
money at the till. The employee claimed that he was an alcoholic but he had
trouble convincing the arbitrator, Phillips said.

But the employee had no absence or lateness problems so the arbitrator
effectively said, "you're a thief not an alcoholic," Phillips said.

B.C. courts will likely look to a 2003 Alberta Court of Queen's Bench
decision where a judge found that Syncrude Canada Ltd. could terminate a
non-union alcoholic employee because the employee continued to drink on the
job despite rehabilitative efforts, he said.

Syncrude spent money on psychological counselling and for a stint at an
addiction centre but when the employee made a fourth breach of the
no-alcohol policy within 100 days, the court said Syncrude was justified in
cutting the employee loose, Phillips said.

"Syncrude is unusual in that it happened so quickly but the employer did
many things right and the employee failed at every opportunity during that
100 days to battle his addiction."