A former Flin Flon health care aide’s human rights victory appears in line with previous rulings of its kind, says a renowned employment lawyer.
A human rights adjudicator ruled last week in favour of Linda Horrocks, who challenged her 2012 termination for allegedly breaching the terms of an agreement by drinking.
“Nothing immediately jumped out at me from a read of the decision which appeared to be fundamentally at odds with similar decisions of this nature,” said Christine Thomlinson, a Toronto-based employment lawyer who blogged about the ruling.
The adjudicator found that the NOR-MAN Regional Health Authority, now part of the Northern Health Region (NHR), wrongly dismissed Horrocks over a disability: alcoholism. She now gets her job back along with full back pay and $10,000 in compensation.
“Sadly, this ruling isn’t groundbreaking insofar as it is one of many where employers jump to hasty conclusions about what employees can and can’t do, or need, by virtue of their respective disabilities,” Thomlinson said in an email interview. “These conclusions are usually based on the employer’s own personal experience with the particular disability and may not be at all applicable to the employee’s situation.”
Prior to firing Horrocks in 2012, NOR-MAN had her sign an agreement saying she would abstain from alcohol at all times, including non-working hours.
Horrocks was let go after people, including a NOR-MAN employee, said she appeared drunk at a grocery store and during a phone conversation. NOR-MAN did not believe her denials.
Thomlinson called the no-drinking rule “an unusual condition” that could be legal, but said the case is more about an employer’s duty to accommodate workers with disabilities.
She said accommodating such workers is a “highly individualized” process, and what makes sense in one situation may not make sense in another.
“In this case, the employer required this [no-drinking] condition because they thought it was necessary to help Ms. Horrocks deal with her addiction,” said Thomlinson. “The problem was that they didn’t make any effort to determine if this was appropriate in her case specifically.”
Given that the adjudicator determined the no-drinking condition was “not reasonable” in Horrocks’ case, Thomlinson said there was no need to determine whether Horrocks had in fact consumed alcohol prior to her second and final termination. A year prior to her 2012 termination, NOR-MAN suspended Horrocks after a manager believed she showed up at her job after drinking. She was later fired and then rehired, only to be fired again before actually returning to the workplace.
Thomlinson, who is with the firm of Rubin Thomlinson LLP, said the issue of terminating an employee who is under the influence of alcohol is not straightforward.
“If an employee is under the influence because of an addiction, then they are deemed to have a disability under human rights law and are entitled to reasonable accommodation,” she said. “It would never be considered reasonable to allow a home care aide to perform the duties of this position under the influence, given the risk to the patients, but the more prudent approach would be to immediately suspend the employee and seek to get more information about their specific issues and how they can best be addressed.”
Thomlinson called the ruling “a good reminder” for employers that questions of how to accommodate employees with disabilities must be dealt with on a case-by-case basis.
“Employers would be wise to assume that every case is unique, and whatever they think they know about an employee’s disability, or assume about an employee’s circumstances, may not actually be the case,” she added. “Employers have to be prepared to devote the time necessary to make inquiries and obtain information in order to understand the employee’s special circumstances. Any decisions about what to do should wait until after this process has been completed.”
The NHR has not ruled out appealing the ruling.
