N.W.T. gov't wrong to fire supervisor who shipped booze into dry community: arbitrator

An arbitrator has ruled the territorial government was wrong to fire a former Yellowknife Health and Social Services Authority supervisor after she shipped booze into the dry community she was working in.

The recent decision is the final word in a saga that began June 2, 2016, when the RCMP in Lutselk'e were notified that a box containing 30 cans of beer, four quart bottles of beer, a bottle of hard liquor and two boxes of wine were among freight on a regularly-scheduled flight into the community.

According to an agreed statement of facts in the arbitration, the box was shipped in at the expense of Yellowknife Health and Social Services Authority (YHSSA) by Luzviminda Richardson, who was working as the community's supervisor of social programs.

Richardson had been hired to the position only six months earlier and was still on probation. The RCMP immediately notified Health Department staff of the discovery and a series of meetings were held with Richardson and her supervisors in the following weeks.

It cannot be condoned.- John Moreau, arbitrator

A month after the discovery, Richardson submitted her resignation. She rescinded it five days later. Immediately after that, then YHSSA CEO Les Harrison notified her she had been fired. Richardson then grieved her firing.

The arbitrator, John Moreau, found that once the health authority learned that Richardson was using alcohol to cope with difficulties she was encountering living and working in the small fly-in community, it had a duty to try to find out more about that dependency with a view to helping Richardson deal with it.

Richardson, who CBC News was unable to reach, was not fighting to get her job back but was seeking damages. Moreau declined to award her any, saying her charging the shipment to YHSSA was an inexcusable breach of trust — "It cannot be condoned. An award of damages in any amount would have that effect."

Duty to accommodate employees with addictions

The courts have established that alcohol and drug addiction are disabilities. Human rights legislation prohibits discrimination on the grounds of disability. As a result, employers must attempt to accommodate employees with addictions.

That duty to accommodate is the biggest issue for unions today, said the president of the Union of Northern Workers, which represents more than 4,000 territorial government employees. Todd Parsons said that duty is something his union deals with on a daily basis.

"If an employer believes there's some sort of disability related to substance abuse, there's a duty then for the employer to inquire [about it]," Parsons said.

After being caught, the YHSSA supervisor in Lutselk'e told her bosses she found the child welfare work she was doing overwhelming and used alcohol to cope, despite being aware that it was not allowed in the community. She said she drank three or four beers every night.

Her supervisors were getting help from a territorial government Duty to Accommodate Advisor. But they seemed to be more concerned about appearing to accommodate Richardson rather than actually helping her.

In an email noted by the arbitrator in his decision, the advisor told the supervisors: "As per my earlier conversation I see that the misconduct as having culpable elements which may lead to termination; however the employer needs to be seen as taking procedural due diligence from a DTA [duty to accommodate] perspective ... in order not to be viewed as discriminatory."

That's not good enough, says a Yellowknife lawyer who specializes in employment law.

Employers are required to go "up to the point of undue hardship" to accommodate employees with disabilities, said Marie-Pier Leduc of McLennan Ross LLP.

Leduc said "undue hardship" is hard to define because it varies with the size of the organization, the type of disability and the work the employee is doing.

"The thing to remember when you're an employer is that undue hardship always implies a little bit of hardship," she said. "The onus will be on the employer to try and accommodate, so it will require making some adjustments. You can't just say 'I can't plainly adjust.' And you will have to demonstrate as an employer that you tried to accommodate and why you couldn't."

Leduc says, though employees have an obligation to accommodate employees with disabilities, they are not permitted to quiz them about their need for accommodation before hiring them unless the need is obvious.

"You can only ask questions that relate to the position, because you don't want to invade the person's privacy," said Leduc. "For example, you wouldn't ask a woman if she intends to have children during a job interview."

Two years ago, the Health Department wrote off $4,650 it said Richardson owes. It wasn't clear what the debt was for.