Here’s a tough decision in the sense that the employer was in a “no win” situation and did the best it could. The case is Safeway Operations (Provincial) v United Food and Commercial Workers Canada Union, Local 401, 2016 CanLII 97607 (AB GAA).
An employee goes AWOL for a period of 4 weeks. The employer terminated his employment for just cause. The union grieved and argued, in part, that the grievor suffered from a disability (alcoholism) which contributed to his absence from work and his termination.
It would seem that the grievor attended at work under the influence of alcohol and was placed on a Last Chance Agreement (“LCA”).
The arbitrator held, after setting out a chronology of events, that:
.... it is clear the reason for [the grievor’s] absence from work was due to his alcoholism, the same reason for which his [last chance agreement] was established in March, 2015. He could not stay sober and had a relapse, so he entered a treatment facility from May 18 to the date of his termination on June 12, 2015.
The union sought to tender post-discharge evidence (namely that the grievor had been seeking treatment for his alcoholism and that this was the reason for his absence). The employer objected. The arbitrator relied on the Supreme Court of Canada decision in Cie minière Québec Cartier v. Quebec (Grievances arbitrator),  2 SCR 1095:
…regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented.
The arbitrator concluded that the post-discharge evidence was admissible. In particular, the evidence with respect to his entering treatment facilities “can be relied on, as it pertains to why the Grievor was absent, around the time of his termination.”
The arbitrator then made the following statement:
When the Grievor absented himself from work in the second half of May, 2015, the Company attempted to contact him a number of times and in a number of ways, without success. They were not aware [the grievor] had had a relapse. Should Mr. Fulker have contacted his Employer to explain his absence? Yes, most definitely! The Company waited approximately four weeks to terminate the Grievor and during that time considered a number of factors such as his disciplinary record, his length of service, being absent without leave and the chances of a successful return to work. They did what they considered reasonable at the time. They terminated his employment. However, they knew he was struggling with alcoholism because that was the very reason they signed the LCA. The LCA was related to [the grievor's] alcoholism and the desire to give him a last chance to remain sober at work.
The arbitrator found that there was prima facie discrimination as the employer was aware of the grievor’s alcoholism, as such, the employer had a duty to accommodate him to the point of undue hardship. In this case, the employer argued, among other things, that the Last Chance Agreement was a form of accommodation.
The arbitrator held that the employer:
.... could have accommodated [the grievor] by giving him an unpaid leave of absence until he was fit to return to work. Even if all the post-termination evidence is discounted, the fact remains the Company had a duty to accommodate the Grievor at the time of his termination.
I have concluded the Company should have put their mind to the likely cause of [the grievor’s] absence from May 15, 2015 onwards. They knew he was suffering from alcoholism and should have carried out a more complete and thorough investigation as to the cause of his absence. Despite the fact the Company sends out about two terminations a week to employees who are AWOL, it should have investigated the case of of [the grievor] more fully as it knew he was on an LCA dealing with his alcoholism. With those suffering from the disability of alcoholism, relapses are, unfortunately, an all too often occurrence.
The arbitrator reinstated the grievor to his employment as a part-time grocery clerk effective November 4, 2015 without loss of wages, benefits, other entitlements and seniority from that day forward. This date was selected because, on the evidence, it is the date on which the grievor could have resumed his duties.
As I said at the outset, this is a tough case and one that imposes a certain paternalistic standard on the employer. The employer tried to reach the grievor, and couldn’t. He didn’t contact the employer, even though the arbitrator (emphatically said) that he should have (“Yes, most definitely!”) It doesn’t look like he asked for a leave of absence, but the arbitrator suggests that the employer should have or could have granted one in the circumstances. It's a difficult case that highlights many of the challenges faced by employers in these cases. One wonders, though, how far an employer has to go in these cases, and this decision supports the "quite far" side of the ledger, albeit in somewhat unique circumstances.