To put this in perspective, we repeat that the Tribunal found that Stewart had the capacity to control his use of drugs. This conclusion was amply supported by the expert evidence before the Tribunal and even by Stewart’s own perspective.
Plainly, Stewart was not driven in some way to breach the Policy at work because
of inability to control his drug use. His was an effort to conceal his drug use. He consciously gambled that he would not be found out as a user of drugs.
The Tribunal more specifically found that Stewart had the capacity to exercise the remedial aspect of the Policy and to seek help for his use of drugs, but that he simply failed to stop using drugs, failed to inform his employer, and failed to stop being impaired in the workplace.
In so saying, the tribunal accepted the diagnosis of Dr. Mace Beckson from July, 2006, that “while Mr. Stewart was addicted to cocaine during his employment at the mine, he did not lack the capacity to change his behaviour if he chose”.
The fact of Stewart’s control over his use of drugs is the crucial distinction between this case and many others. Typically, an employee who has a drug addiction and consequently cannot control their drug use or their behaviour while impaired by drugs may expect some protection from discipline or termination in employment.
This is a fact-specific inquiry, and if it turns out that the employee retains control over their drug use, even if they are dependent, no legal nexus between their disability and their misconduct should be found to exist, and therefore they will not be protected from discipline or discharge in employment on any human rights grounds.
Certainly this is a sensitive and difficult distinction to establish. With the growing prevalence of research and case law however, the professionals
at CCPartners are well-equipped to help employers undertake the proper analyses, and to advise employers on next steps and best practices when addressing employees who may be dealing with substance abuse or dependence.