Bad Behaviour 5.0: Employees getting away with.

• Author: Bowal, Peter
• Position: EMPLOYMENT

" Whitford was not given sufficiently clear and detailed warnings about his misconduct, was mislead [sic] by approvals granting him leave, and was not told that failure to prepare a return-to-work plan could result in his dismissal. Further, he was not caught drinking on the job, other than the one occasion when he made no attempt to hide his condition, and he did not jeopardize the safety of others. --Whitford v Agrium Inc, 2006 ABQB 726 (at para 50) " We scoured judicial and arbitral decisions across the country and found another instance of egregious employee behaviour that a Canadian court has excused. The employer fired the employee, but the judge disagreed and ordered the employer to pay damages for wrongful dismissal and court costs.

This is the latest installment of another head-scratching outcome in a dismissal-for-cause case. In reading this, one is left asking, "What was that judge thinking?"

The Absentee Alcoholic

Agrium hired Mr. Whitford out of high school, and he worked his way up to shift supervisor. In 2000, he began treatment for depression, likely induced by family issues including the death of his mother and separation from his wife. In 2002, he accepted a salaried position at Agrium, after which his supervisors began noticing an absentee problem. Later that year, Mr. Whitford accepted that he had a problem with alcohol and entered a rehabilitation program.

His supervisor supported his rehabilitation efforts. Agrium continued to pay his full salary while he attended the program and modified his responsibilities at work to reduce his stress upon return. Agrium expected Mr. Whitford to return to work in December, but instead he took another leave of absence to attend counselling. His employer expected his return to work the following February.

After completing the second program, Mr. Whitford began drinking again and exhibited "dismal attendance" at work. He would regularly check-in with his supervisor to inform him that he was not going to attend work because his doctor advised him to take more time off, he was dealing with divorce matters or he needed to fix his car. Throughout this process, a medical consultant from Agrium's occupational health department tried to help him develop a back-to-work plan.

On March 19, Agrium gave Mr. Whitford a letter stating it wanted to help him get back to work. However, if he was not able to improve this attendance, he would be dismissed. His absences continued.

On April 30, after Mr...