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Queen's University

Brewery, Winery and Distillery Workers

In Brewery, Winery and Distillery Workers (2008), a long-term employee signed a last-chance agreement after missing two weeks of work for non-culpable (disability-driven) reasons: he was addicted to drugs. In contravention with the agreement, which obliged him to enrol in a drug rehab program and to stop taking drugs, the employee relapsed after being in a traffic accident and later failed a drug test. He also lied to the employer about the frequency of his drug use since the relapse. He was discharged and, according to the Arbitrator, with just cause. Although a relapse is non-culpable misconduct and is subject to a human rights analysis, dishonesty is culpable misconduct (i.e. not related per say to the disability) and is subject to a just-cause analysis.  Breach of the contract, in the form of lying, justified the employee's dismissal.

NB The Arbitrator disagreed with the union which maintained that the Last Chance Agreement represented prima facia discrimination (like termination clauses) and that before applying it, accommodation should have been considered. The Arbitrator said that this kind of thinking would render last chance agreements meaningless.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000