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COMM 393 (95)

casebrief Alberta v. Kellogg Brown & Root

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University of British Columbia
COMM 393
Patricia Mallia

DRUG AND ALCOHOL ABUSE QUICK FACTS FOR THE EMPLOYER Drug and/or alcohol addiction is a disease that must be accommodated. TRUE FALSE Social drinking / social drug use is NOT a disease. TRUE FALSE How can an employer test for drug/alcohol use without discriminating? - Ensure the employee being tested is currently or will commence working in a safety sensitive position. Accommodation means helping the employee access a rehabilitation program and allowing them leave from work for that purpose. What if you accommodate the employee and following rehabilitation they continue to suffer from addiction, can you dismiss them? YES NO What if the employee is offered access to a rehabilitation program however denies suffering from a disease, have you as the employer accommodated them? YES NO Courts support dismissing an employee for social drug/alcohol abuse if it: 1. Affects the employee’s ability to do the work; 2. Is detrimental to the employer; and 3. Is accompanied by sufficient employer warning(s) that the continued use of alcohol or drugs will result in dismissal Alberta v. Kellogg Brown (2006) Context: KBR is a construction company currently working on a huge project with Syncrude. The project was on a massive scale and some of the largest industrial equipment on the planet was in use, the risk level was very high. Consequences of accidents could severely impact the safety of the work environment, other workers, the plant and environment. Facts: ­ June 24, 2002 Chiasson was contacted for a position ­ June 25, 2002 Chiasson had a phone interview with Gary Fowler, a project manager ­ KBR notified Chiasson of the drug policy ­ He received a job offer for a fixed 21-month period beginning on July 8, 2002 but that it was subject to the "results from [his] pre-employment medical and drug screen" ­ Chiasson smoked Marijuana on June 22, 2002; 5 days before the test on June 28, 2002 ­ Chaisson took the job and was on duty for 9 days but on July 27, 2002 KBR’s medical director informed Chiasson he had not passed the test and consequently was let go ­ In October 22, 2002 Chiasson filed a complaint with the human rights board stating that he had been discriminated against by his employer, KBR Human Rights Panel In front of the panel, Chiasson testified that he was not addicted to marijuana and witnesses at KBR’s facility also testified and said they did not consider him addicted Issue: Was Chiasson discriminated against based on a disability? Law: Human Rights, Citizenship and Multiculturalism Act (B) No Employer Shall: Refuse to employ or refuse to continue to employ any person, or discriminate against any person with regard to employment or any term or condition of employment, 1. 1 (1) because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person. Analysis: The Human Rights Panel arrived at the following conclusions: ­ Because KBR employed Chiasson in a very safety sensitive position, the assumption is that they would not have done so had they perceived impairment or disability ­ Chiasson was only a recreational user, therefore there was no actual disability which could be demonstrated due to drug addiction ­ The testimonial of KBR workers all testified that there was no noticeable impairment or disability, thus he was not let go because they perceived him to be disabled Conclusion: Using these conclusions, the Human Rights Panel said that Chiasson was not discriminated against because he had no disability. But, had Chiasson actually suffered from drug dependence, the policy would have been prima facie discriminatory. The logic: Nobody perceived Chiasson to be disabled; therefore he could not have been discriminated against based on this disability. Chamber Judge Issue: Was there discrimination based on perceived disability? Analysis: The chamber judge stated that the panel was right in their decision regarding actual disability but it erred in its decision in perceived disability. She went on to say that the effect of the policy was to create a class of people by treating recreational users as if they were addicted and by failing the test drug test you were automatically assumed to fall within this “class” of people. She also added that it was unfair for KBR to assume that people who failed the drug test are drug addicted and that it further assumed that they would show up to work impaired. Conclusion: There was a discrimination based on perceived disability as you automatically made associations regarding an indiv
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