BURST
A woman who worked near a shredder that grinds up old cars and other large, discarded metal objects at a Whitby, Ont., recycling facility who was fired from a “safety sensitive position” for drinking on company property, has failed to convince an arbitrator that her alcoholism is a disability and she should get her job back.
Zoe Stanley, whose former job is described in the arbitrator’s recent decision as an “air traffic controller” directing loaded dump trucks and cranes to the shredder at Gerdau Long Metal North America’s Whitby recycling plant, was finishing up a night shift on Feb. 1, 2024, when a fellow employee reported to management that she “appeared to be under the influence of alcohol and was about to drive home.”
After a manager tracked Stanley down in the parking lot and convinced her to come to the office, she was quizzed about the “overwhelming ‘smell’ of alcohol on her (also on her breath) — noticeable immediately on entering the room.”
At first, Stanley denied that she had consumed alcohol on Gerdau premises.
Stanley explained the “strong smell of alcohol on her work clothes” was because she and her husband make moonshine at home “as a hobby,” arbitrator Bernard Fishbein wrote in his Oct. 27 decision.
“She also did mention that she had been drinking heavily at home as a possibility, but it was not really made clear why that would affect her ‘work clothes’ and the strong smell of alcohol on them.”
More than four hours after her shift ended, Stanley “tested positive, 0.040 per cent on the first test and 0.035 per cent on the second test.”
Gerdau’s policy was that anything over 0.02 per cent was considered being “under the influence,” said the arbitrator.
Stanley, who had worked at the plant since 2017, was sent home pending further investigation.
At a meeting the next month with company officials, Stanley “reiterated that she had not been drinking while working,” said the decision.
“However, now, for the first time, although steadfastly denying that she had ever been drinking while working or during the shift, she admitted that she just happened to have alcohol in her bag that day and had taken ‘a sip’ (or maybe two) after the conclusion of her shift at her locker and before going to her vehicle.”
When asked about what had prompted her to take the drink, Stanley “indicated that she had ‘personal things’ going on at that time which had been exacerbated recently. Ultimately, she went further and admitted she had a problem with alcohol but had not gotten help in the past because she did not know where to get help.”
Stanley later revealed that she had increasingly been “drinking heavily at home virtually daily (but never at work) for some time” due to financial difficulties that resulted in the loss of her family home.
Stanley was a member of the International Union of Operating Engineers, Local 793.
Her union “raised the possibility of some return to work under some form of ‘last chance agreement,’ but the discussion did not go far,” said the decision.
Then, at a March 12, 2024, meeting, Gerdau “advised that their investigation was pretty much concluded and that there had been a serious violation of its drug and alcohol policy which were grounds for termination.”
But since Stanley “for the first time had indicated she had an alcohol problem, Gerdau was prepared to consider some form of last chance agreement” that would allow her “to eventually return to work” if she completed a credible residential alcohol treatment program and agreed to random testing.
Stanley “almost immediately strongly objected” to any residential treatment as she had small children at home.
Gerdau “indicated it would consider other options if they provided effective relief.”
Nearly six weeks after she was suspended, Gerdau indicated Stanley needs to “start a program soon and try to come to an agreement on terms, otherwise we may need to proceed with our original position that this incident warrants termination.”
By March 26, 2024, “Gerdau was losing patience,” said the decision.
Stanley testified that she had visited a clinic, but an intake interview would take some time to arrange.
Believing that Stanley “was not ‘holding up her end of the bargain’ and not co-operating in attempts to afford her accommodation,” Gerdau prepared her termination letter.
When she “was asked if there was anything she had done in the last two months to deal with her problem,” Stanley indicated she had gone to two counselling sessions, “but had stopped because Gerdau’s position as she allegedly understood it from the union was that was not good enough.”
After a meeting with company officials where Stanley refused to take any medication, shouted and slammed a door, Gerdau fired her.
Stanley’s family doctor and a social worker and psychotherapist who had counselling sessions with Stanley produced records to substantiate Stanley’s “claim of a disability (alcoholism) and any treatment of it” and her ability to safely return to work, said the decision.
“Strangely none of the reports explicitly state a diagnosis or conclusion of alcoholism—that (Stanley) was an alcoholic.”
Stanley’s union asked the arbitrator to “substitute a lesser penalty,” given her seven years of discipline-free work at the recycling plant. Fishbein concluded that he should not.
“Equally, the union’s arguments that this was an isolated incident and spur of the moment and not premeditated incident, I find hardly persuasive when the union also argues that the grievor is an alcoholic,” said the arbitrator.
“More significantly, this is a safety sensitive position in a sensitive safety workplace — which not only did the grievor appreciate but stressed herself as why she would never drink while actually performing her work.”
The arbitrator was unable to find that Stanley or her union established that she suffers from the disability of alcoholism.
“I find the better characterization of the events is the one Gerdau makes — the grievor caught in her misconduct, unable to deny or evade it at first, seeks to hide behind the (Human Rights Code) and an alleged disability.”
Without a “disability there is obviously no duty to accommodate,” Fishbein said. “If I am wrong about the existence of a disability here, then I conclude that Gerdau has fulfilled its duty to accommodate here.”
Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.