Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94, is an Alberta Human Rights Commission decision which came out at the end of last year. The case is interesting because it deals with the duty to accommodate an alcoholic employee, and affirms that accommodation is a difficult standard for an employer to meet.
Kvaska was a commissioned salesperson in a car dealership, and his employment was dismissed after he attended work very intoxicated, interrupted a staff meeting, and was belligerent towards the manager. Kvaska argued that his alcoholism was a disability and was a factor in his termination of employment. The employer argued that it was alcohol abuse, but no disability was established. Kvaska was ultimately successful, getting an award of $30,000 in general damages (pain and suffering), plus lost short-term disability benefits and six months of lost wages.
Reasoning In The Case
The AHRC found that, although Kvaska had not been diagnosed as being an alcoholic and had not provided medical evidence to the employer about being an alcoholic prior to termination, the evidence was that he consumed a great deal of alcohol every day, was impaired every day, was concerned about losing his job but continued to drink, had been observed intoxicated at work by at least one co-worker before, and had been seeking medical help. The AHRC found that he was an alcoholic and this was a physical or mental disability.
The employer argued that even if it was a disability, it had no knowledge of the disability and terminated his employment solely for his behavior in interrupting and being belligerent.
The Tribunal found that the employer had enough information that it ought to have inquired into whether Kvaska was an alcoholic, and whether that disability contributed to his misconduct before terminating his employment. If the employer concluded that the disability was a contributing factor, it then had a duty to accommodate that disability to the point of undue hardship.
The Tribunal affirmed that the standard required of employers in human rights accommodation is high. If an employer does not take the procedural step of investigating alternatives to termination and potential accommodation options, it will be very difficult for the employer to claim that accommodation would have amounted to undue hardship:
[56] Here, the respondent took no steps to consider accommodation whatsoever. It conducted no investigation into alternatives to termination and never considered what its options were in the circumstances. Having not engaged in any accommodation process, it does not have the evidence to show that it could not have accommodated the complainant to the point of undue hardship.
[57] In making this finding, I am not saying that the respondent needed to accept a serious safety risk in its workplace or accept ongoing intoxication simply because the complainant had a disability. Rather, it needed to investigate options, including the complainant’s request for a medical leave of absence to seek rehabilitation treatment. It did not do this, and I cannot find that continuing to employ the complainant would have created an undue hardship for the employer. The evidence about the workplace included that there were several sales staff who regularly covered for each other. There was no evidence to suggest that an absence, even a lengthy one as proposed by the complainant, would have created an undue hardship.
The Kvaska case can be found at the following link on CanLii: https://www.canlii.org/en/ab/abhrc/doc/2020/2020ahrc94/2020ahrc94.html?autocompleteStr=kvaska%20v%20gateway%20motors&autocompletePos=1
