B.C. man awarded $160K after wrongful termination linked to substance use disorder

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

A cement plant in Metro Vancouver owes $160,000 to a former employee who was terminated in 2018 after refusing to take a drug test in order to return to work from a medical leave.

The ex-worker is identified as “K” in a B.C. Human Rights Tribunal decision released Oct. 19, more than four years after he filed a claim against RMC Ready Mix Ltd. and parent company Lafarge Canada Inc. K alleges he was discriminated against based on his substance-use disorder, which is recognized as a mental disability.

The 69-page ruling outlines that K began working for Lafarge in 2013 before eventually taking a job as a salesman at RMC, a concrete company based in Richmond.

In October 2017, K’s struggles with cocaine addiction landed him in hospital, at which point he was diagnosed with substance use disorder and bipolar disorder. After disclosing his diagnoses and applying to an employee assistance program, K was financially supported through a treatment program for addiction, which he completed the following February.

Trouble arose when K received medical clearance to return to work in May 2018. The tribunal heard K was told he couldn’t have his job back unless he agreed to take a pre-placement drug test and sign a last chance contract with terms that included 24 random drug tests over a two year period.

After refusing to those terms, the then 28-year-old was officially terminated in July 2018.

His lawyer, Ben Tarnow, said his client’s shows employers have to start taking mental illness serious as a disability.

“Accommodation is a multiparty process that requires a lot of critical thinking and a lot of mutual understanding of where each party is coming from,” Tarnow said to CTV News in a phone call.

“What the employer basically said was, ‘Take it or leave it. Take a drug test, sign this contract, and if you don’t we don’t want to even meet with you or even talk to you.’”

BCHRT Tribunal member Beverly Froese notes in her decision that K’s employers followed company policy that requires workers in the employee assistance program to take a pre-placement test and sign a return to work agreement.

However, there’s no one-size-fits-all policy for accommodation in the workplace, as Froese explains.

“I find the Respondents have not established that they offered a reasonable accommodation which K refused and they could not have done anything else reasonable or practical to ensure he could safely return to work,” Froese said.

The tribunal heard K relapsed twice after completing the treatment program, but Froese still disagreed with his employer’s allegations that he was unfit to work or “created a set of circumstances in which it was necessary for his safety and the safety of others to terminate his employment.”

Jonathan Blair, a lawyer with the Community Legal Assistance Society, says this decision signals a shift is happening in workplace.

“Whether its mental illness, physical disability or even sexual harassment, it signals that workplaces are going to have to point their minds to the situation at that time, not just handle a situation blindly with a single policy framed mind,” Blair said in a phone interview with CTV News.

Blair says the ruling supports growing calls to amend the Workers Compensation Act, and require employers and employees to collaborate on viable return to work plans.

“It could really be impactful, even outside the workplace. Restaurants, government services, tenancies--accommodation can never be one-size-fits all. You're going to have to do more than that,” said Blair.

RMC and Lafarge could still file an appeal, as the 30-day deadline following a decision’s release hasn’t expired. Tarnow says that would be a difficult appeal to win, however.

“It is quite a high bar because you have to show the court the decision is unreasonable, you don’t have to just show they were wrong,” said Tarnow.

Of the total damages, K is being awarded $140,000 to compensate for lost wages, and $20,000 as compensation for injury to his dignity, feelings and self-respect.

No one from RMC or Lafarge responded to interview requests at the time of this writing.

According to the decision, K has been sober for two years and works as a plumber apprentice in the Interior.