N.W.T. judge upholds firing of Ekati worker

A Northwest Territories judge has upheld the firing of a mining employee who argued the mining company did not do enough to help him with his alcohol abuse.

The judge's decision, released Dec. 20, was the latest and possibly final word in a dispute that began shortly after the employee was dismissed five years ago.

The employee is identified only by the initial K in the written decision of Northwest Territories Supreme Court Justice Karan Shaner. He had been a heavy equipment operator at EkatiDiamond Mine for 12 years.

The mine's majority owner, Dominion Diamond Mines, has a substance abuse program that includes assessment, residential treatment and aftercare. The employee had used the program twice.

Failed at follow-up care

As part of his follow-up treatment after using the program the second time, the employeewas required to attend self-help meetings at least three times a week and call a substance abuse counsellor once a month for nine months. The employee was warned that failure to follow the aftercare plan could result in dismissal.

According to Justice Shaner's decision, K failed to make the first call to the counsellor. A Dominion human resources manager called the employeeinto a meeting to remind him of the importance of making the phone calls and that failing to do so could get him fired.

The employee made the calls for the next four months, then failed to make the next three scheduled calls to the counsellor, despite more warnings about the impact missing calls could have on his employment at Ekati. After missing the third consecutive call, he was fired.

The Public Service Alliance of Canada (PSAC) grieved the dismissal, arguing that K simply forgot to make the calls, that the calls were not helpful because the counsellor simply said "hello"and "goodbye,"and that he did not receive adequate warning that failing to make the calls could result in dismissal.

The arbitrator ruled againstPSAC. According to Shaner's written decision, the arbitrator found the counsellor was more believable than K. The counsellor said the calls lasted a couple of minutes, and during that time he asked K how he was doing generally, whether he was abstaining from drinking and attending self-help meetings and whether he required any help at work.

No discrimination

The union asked the Northwest Territories Supreme Court to overturn the arbitrator's decision.

In her decision, Justice Shaner noted the union had not alleged that Dominion had discriminated against K on the basis of his disability:addiction. Employers are required by law to try to accommodate employees' disabilities "to the point of undue hardship."

But because Dominion itself raised that issue, the arbitrator addressed it and found there was no discrimination. Shaner reached the same conclusion, saying in her decision, "There was nothing related to K's disability that prevented him from making the calls."

In addition to losing its challenge of the arbitrator's decision, the union was ordered to pay Dominion's court costs.

The union has the right to appeal the decision to the Northwest Territories Court of Appeal.