Cudmore v. Inter Cap Industries, 2009 HRTO 174

Human Rights Tribunal of Ontario

Between:

Robert Cudmore Applicant

-and-

Inter Cap Industries Limited, Robert Kiss and Tom Costello Respondents

Case Resolution Conference Decision

Adjudicator: David Muir Date: February 20, 2009 Citation: 2009 HRTO 174 Indexed as: Cudmore v. Inter Cap Industries

Reasons for Decision

1This is an Application dated August 12, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Case Resolution Conference was held in London on January 26, 2009 in accordance with the expectation, expressed in the Code and the Tribunal's Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant, both individual respondents as well as several employees of the respondent corporation.

3The applicant alleges that he has been discriminated against in employment on the basis of a disability. In particular it is alleged that the respondents - his employer, a supervisor, and the Plant Manager - did not accommodate his disability. The applicant claims as remedies, that his record of employment be cleared and that he be awarded lost wages from the date of his termination (June 21, 2007) to date and ongoing. Underlying the complaint, although not explicitly stated, is the suggestion that the employer terminated his employment in part because of a disability. There is no specific disability identified in the human rights complaint. When asked at the Case Resolution Conference to disclose something about his disability and what accommodation he requires, the applicant stated that he had personal problems but that he did not really know, because he has been diagnosed with everything from depression to pancreatic cancer.

4The respondents state that the applicant never disclosed a disability or requested accommodation. The respondents state that the applicant was terminated for repeated violation of work rules requiring that employees not attend the workplace under the influence of alcohol or drugs.

5The respondent employer is a small manufacturer of industrial piping. At the time that the applicant was employed there, it employed approximately 70 employees: 50 hourly paid staff and 10 salaried. The respondent, Brian Kiss, was the applicant's direct supervisor and Tom Costello was the Plant Manager.

6The applicant began his employment with the respondent in 2002. According to his supervisor he was a good worker, when he was at work. He was well liked by his fellow employees.

7Because of his good job performance the applicant became a set up man and as a result a key employee in the production process. If he was absent from work, up to 7 of 42 machines on the floor could be impacted. There were floaters available to fill in and the absence of an employee with the applicant's responsibilities may have little or no impact on any given day, but nonetheless there is no dispute that it was important that the applicant report for work regularly. One of the underlying issues in this employment relationship was that the applicant had a spotty attendance record. His record in the last two years of his employment was far and away worse than any other hourly rated employee.

8The ultimate justification for the applicant's termination was the violation, on two occasions, of a work rule that prohibited an employee from attending at work under the influence of drugs or alcohol. The respondents also believe that the applicant violated this rule on other occasions but rely upon a documented incident in February 2007 for which the applicant was warned that a further violation would result in a termination. The respondents state the applicant violated this rule again on June 20, 2007 when he arrived at work late and under the influence of alcohol. He was sent home that day and, after consultation between his supervisor, the Plant Manager and the Human Resources Coordinator, the decision was made to terminate the applicant's employment.

9The applicant denies that he ever attended work under the influence of alcohol. I do not accept that evidence.

10I heard from two employees who gave evidence to the effect that they had witnessed the applicant in attendance at work while under the influence of alcohol. Roxanne Edwards testified that on Feb. 9, 2007 she was approached by a number of employees who, being concerned about the applicant's safety, reported to her as the health and safety representative that it appeared that the applicant was drunk. Ms. Edwards approached the applicant and noted that he was having trouble standing up, that there was an evident alcohol odour around him and, uncharacteristically, he could not or would not look her in the eye when they spoke. She reported her suspicions to the respondent Kiss.

11Mr. Kiss testified he met with the applicant and noted that the applicant had difficulty standing, preferring to lean against the wall and there was a noticeable odour of alcohol around the applicant. According to Mr. Kiss, the applicant did not deny being under the influence, instead, consistent with his general approach when being disciplined, he was apologetic and grateful. The employer imposed a three day suspension on the applicant and warned him that a further violation of the rule would result in dismissal.

12I am satisfied the respondents were aware that alcohol was perhaps part of the applicant's problem by February 2006 when the applicant was absent from work after his sister persuaded him to seek help from the London Withdrawal Management Centre. Unfortunately the applicant signed himself out of the Centre within hours of entering the facility. He contacted the employer after the fact to ask for a couple of days off to "get his life together". When I asked at the Case Resolution Conference what he needed the time off for, the applicant responded that he needed time to find a new place to live as he had just recently split up with his partner.

13At that time, the respondent Costello testified he advised the applicant that if he needed time off to attend a rehabilitation program at the Centre such an absence would be excused but that if he was not in rehab then he would be expected to be at work the following day, February 10. The applicant attended work the next day, having been absent unexcused since the 7th.

14Prior to starting his shift the applicant met with the personal respondents. The offer of assistance and time off made the day before was reiterated. The applicant was warned that his attendance needed to improve. He also was warned about the rule prohibiting being in the work place under the influence and that a further violation of the rule would result in discipline and possibly dismissal.

15The respondents testified the applicant told them that he did not require assistance or accommodation to deal with an addiction or dependence problem, or for any other reason.

16A statement by a workmate tendered in evidence by the applicant asserts that the respondents were all aware of the applicant's problem with alcohol. I asked Mr. Kiss whether or not he believed that the applicant had a drinking problem and he said he did not know but that it was possible. Asked if the applicant had ever told him he had a problem with alcohol or that he was an alcoholic, Mr. Kiss said no. I asked him if the applicant had ever asked for assistance with any sort of problem, Mr. Kiss said no. He also stated that if the applicant had asked him for time to deal with his issues he would have granted it, within reason.

17The applicant states that he provided medical documentation to the employer that kept them apprised of his difficulties. The material in the applicant's employment file is confined to a handful of medical notes, mostly post-dated, supporting a prior absence from work "for medical reasons". The only exception to this is a note from a doctor indicating that the applicant was suffering from an entirely unrelated skin condition for which he was accommodated. Otherwise there is no medical information in the employer's file that would disclose a disability that required accommodation.

18I find that the respondent employer terminated the applicant's employment because of two documented instances of a violation of the work rule prohibiting attendance at the workplace while under the influence of alcohol. While the applicant denies ever being in the workplace while under the influence of alcohol, I accept the evidence of his fellow employees that this was not the case. I accept the respondents' evidence that on the two occasions there was a reasonable and substantial basis for concluding that the applicant was impaired by alcohol and in violation of the workplace rule.

19The workplace rule relied upon by the respondents is an entirely reasonable rule, subject to the overarching duty to accommodate a particular employee's Code related needs. The respondents were aware the applicant's family had concerns about his situation and candidly admitted to having their own suspicions about the cause of his problem. Because of those suspicions they made serious inquiries yet the applicant would not admit to any problem and made no effort to provide information or work with the respondents to achieve appropriate accommodation. In the circumstances, while the decision to terminate the applicant's employment might have been affected to some degree by consideration of disability or perceived disability, I am satisfied the respondents met their duty of reasonable accommodation toward the applicant.

20Accordingly, the Application is dismissed.