Worker alleges union was discriminatory after night out causes his expulsion
A worker recently filed a claim before the Nova Scotia’s Labour Board, alleging that he was discriminated against because he was an alcoholic.
In a recent incident at a union event on 16 November 2022, a worker was expelled from an apprenticeship training program and had his membership revoked. The worker’s case raised allegations of discriminatory treatment under the Trade Union Act.
The worker embarked on his apprenticeship in January 2021 and was almost finished with the two-year program. The event in question was designed as a team-building exercise intended to celebrate and acknowledge the accomplishments of the graduating class of apprentices.
The evening featured a dinner, followed by bowling at a local alley, with some drinks in a private hotel room in between. Alcohol was readily available to all attendees, free of charge.
According to records, the worker consumed a substantial amount of alcohol throughout the evening. He estimated that it exceeded 30 drinks, including double vodkas and beers.
The "incident" unfolded around 8:30 p.m. outside the bowling lanes. The worker went outside for a smoke and to arrange a cab to transport him home. Prior to this, bar staff at the bowling alley had already cut him off due to his visibly drunk state and disruptive behaviour.
The assistant business manager followed the worker outside with the intention of ensuring his safe departure from the event. He was determined to prevent the worker from re-entering the bowling lanes, as his presence was unwelcome and could only worsen the situation.
The said manager was willing to provide the worker with cab fare, as it was clear that he was unfit to drive. The union felt a responsibility not to jeopardise the worker's safety or that of others on the road.
The worker, however, declined to follow these instructions and began walking back toward the entrance to the lanes. The manager attempted to physically block him and redirect him away from the entrance, even if "you slap me."
In a matter of seconds, the worker slapped the manager’s face. The latter remained upright but reported that the impact was forceful enough to make him think he had been punched.
The force of the blow left noticeable red marks on his face that persisted for several hours, witnessed by others.
Subsequently, the worker departed and proceeded to another drinking establishment, where he admittedly consumed more alcohol before driving home.
It was later revealed that he boasted about "bitch slapping" the manager while drinking with friends, which reportedly cost him personal embarrassment.
The day following the incident, the decision was made to invoke the Apprentice Regulations, leading to the worker's termination from the apprenticeship program and expulsion from the union.
This action was subject to an appeal to the Apprenticeship Trust Fund Committee, which convened several months later and voted to uphold the termination.
During the appeal hearing, the worker disclosed that he is an alcoholic and, at the time, was receiving counseling through his employee assistance program.
A brief letter from his counselor was presented, which provided minimal information, acknowledging that the worker was dealing with alcohol-related issues.
The trustees on the appeal board also evaluated his overall track record, including the worker's delinquency in paying union dues, a significantly high rate of absenteeism during apprenticeship training, and a negative report from one of his employers.
The worker argued the union's actions were discriminatory and sought reinstatement of his membership. Among other arguments, he said that as an “alcoholic,” he is entitled to accommodation due to his disability.
He claims to have disclosed this disability when he called the manager the following day to apologise for the assault, triggering a "duty to inquire" and an obligation to accommodate him up to the point of undue hardship.
The "duty to inquire" typically arises when an employer is contemplating adverse action against an employee and should have been aware of the employee's disability, which might impact their performance. This is most often applicable in cases of absenteeism or failure to meet objective performance criteria.
The “duty to inquire” emphasises that employees must bring forward information about the needs arising from their disability, but employers should consider the possibility of a disability requiring accommodation before taking any action.
In essence, the core question is whether the worker was denied accommodation as a union member, leading to differential treatment.
The Human Rights Act lays down the purpose of ensuring that every individual is afforded an equal opportunity to enjoy a full and productive life. The Act prohibits discrimination, especially in the context of employment, and includes provisions protecting individuals with physical or mental disabilities.
According to the Labour Board, there has been a recognised obligation to provide accommodation for physical or mental disabilities, including alcohol or drug addiction.
In the employment context, an employer must "reasonably accommodate" an employee's disability unless it leads to "undue" or unreasonable hardship, in which case the employer can deny the modified employment sought by the employee.
The Board also cited a decision by the Supreme Court of Canada which governs the accommodation process. It places the burden on the employee to establish that they fall under a statutory human rights ground and that the ground is linked to the necessity for accommodation.
Once these requirements are met, the burden shifts to the employer, who must demonstrate the three elements of the defence to the accommodation duty, which are:
The Board found that the worker was an alcoholic, but it said that “if he had established this status at the time of the incident, he would have been entitled to seek accommodation from the union.”
The worker's alcoholism, while recognised, did not explain his violent behaviour. Consequently, he was not entitled to a more lenient response to his act of insubordination.
“However, he did not provide evidence linking his alcoholism to violent behaviour, which was the primary issue at hand. Therefore, the union's duty to accommodate was not triggered in this case,” the Board said.
Furthermore, other factors contributing to his expulsion were not shown to be related to his disability. Thus, the Board rejected the worker’s claim.
