Bonté Foods Ltd. of Dieppe has been ordered to reinstate a worker with attention deficit disorder who was fired for violating the company's safe food-handling practices.
Arbitrator Robert Breen said Bonte's failure to accommodate Robert Daniel's diagnosed disability amounted to discrimination.
Breen was ruling on a grievance filed on Daniel's behalf by Local 406 of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union.
Daniel, who worked at Bonté Foods for about 14 years and was described as an "excellent employee," was given his termination letter on Sept. 29, 2016. It was signed by Coleen Aldred, the company's co-ordinator for human resources and health and safety.
"Your employment … is terminated because you again violated Bonté Foods Limited Food Safety Policies, while on a Last Chance Agreement," states the letter of termination.
"On September 28, 2016, you did not follow proper flow procedures, coming back from break, hence breaking our Food Safety Policy."
According to the termination letter, Daniel violated food safety policies in the company's smokehouse.
Defence against E. coli
"The smokehouse is the last line of defence in Listeria, Salmonella and E. Coli protection," said the termination letter. "If product becomes compromised after cook, there is no defence to kill off any of these organisms and as you cannot see bacteria, the product is then shipped to the consumer.
"At this point, the consumer purchases the product as a ready to eat meat and could become deathly ill if contaminated with the said pathogens. Hence, the importance of food safety policies."
The union filed a grievance under the province's Industrial Relations Act. In its response, Bonté indicated the safety violation had to do with cross-contamination from raw meat to cooked meat.
"This termination is not about wearing the wrong colored hairnet, as the Chief Shop Steward for the [union] would have everyone believe," the company said.
'This termination is not about wearing the wrong colored hairnet.' - Bonté Foods Limited grievance response
"Robert Daniel clearly did not follow proper Food Safety Flow Procedures (Standard Operating Procedure #43) on which he has been train[ed], retrained and discipline[d] on.
"Procedures are put in place so as not to cross contaminate between raw and cooked meat products, this ensures that our Meat Products are safe for consumption by the public.
"Bonté Foods Limited is not willing to risk its product being cross contaminated by an employee who simply will not learn to adhere to Food Safety Policies."
The arbitration ruling noted that Daniel had a warning and two suspensions leading to the "last chance" conditions entered into on May 10, 2016. Another warning and two suspensions followed, leading to Daniel's firing in September 2016.
Bonté Foods began operating in 1977 under the name Greco Foods Ltd. with its main purpose being to supply Greco Donair Restaurants with donair and products. The company now employs more than 100 people and sells products such as donair meat, pepperoni, salami, pizza toppings and donair and pizza sauces across Canada.
ADD diagnosed in 2011
On. Nov. 17, 2016, a note from Daniel's doctor was given to Bonté Foods, confirming Daniel has been diagnosed with adult attention deficit disorder on April 11, 2011, and on medication ever since.
In December 2016, Daniel was assessed for attention deficit/hyperactivity disorder by a licensed psychologist, whose report concluded he met diagnostic criteria for the combined type of ADHD.
In her report, the psychologist said: "Based on information obtained, the undersigned believes Mr. Daniel's mental health diagnosis of ADHD was a central participating factor in his work performance issues."
Nicole Churchill, the company's vice-president for food safety, and other senior managers testified at the grievance hearing on Jan. 23 and 24 this year that they had no prior knowledge of the psychologist's diagnosis of ADHD or the original physician's diagnosis of adult ADD in 2011.
However, Glen Peddle, the company's raw meat manager, testified Daniel did mention his ADD issue to him a few years earlier, but he never heard any more about it.
No accommodations discussed
Peddle admitted under cross-examination he never participated in any accommodation analysis for Daniel. Peddle was at Daniel's termination meeting and acknowledged there was no discussion then about Daniel's adult ADD or of a required accommodation for Daniel.
Daniel testified he also told Aldred, the human resources manager, about his ADD diagnosis. Aldred was not called to testify.
The company argued that if ADD was important to Daniel's ability to work, he and his union had an obligation to raise it with the company in more than a passing comment.
"There is no reliable evidence at this arbitration that Bonté would have any reason to believe that Daniel suffered from adult ADD," argued the company.
"If a duty to accommodate is triggered, it is because the obligation to inform has first been met by the employee."
The union argued "there is no onus on an employee to put an employer on continuing notice."
"The obligation on the employee is to advise: it is asserted that is precisely what Daniel did," Breen wrote in summarizing the union's arguments. "With this done, the onus, it is argued, switched to the employer to commence an inquiry into his accommodation needs."
Human rights violation
In his ruling, Breen concluded Daniel and the union established that Daniel was discriminated against because of his disability, which violates the Human Rights Act.
"There is no dispute, in my view, that Daniel's adult ADD, now diagnosed as AD/HD condition, was a pre-existing 'disability' at the time of his discharge, as that term is addressed under human rights legislation," Breen said.
"I am also satisfied there is no question on the evidence heard that the "adverse impacts" Daniel suffered … [were] linked to his membership in a human rights protected "group": persons with a 'mental disability.'"
'There is no question on the evidence heard that 'adverse impacts' Daniel suffered … [were] linked to his membership in a human rights protected 'group': persons with a 'mental disability.'" - Robert Breen, arbitrator
Breen acknowledged Daniel and the union did not tell Bonté about his disability over the course of his disciplinary sanctions or request accommodation measures.
"Nonetheless, I find that Bonté's "procedural obligations" under the duty to accommodate were triggered by Daniel's disclosure of his disability to his immediate supervisor in 2011.
Breen said the company also ought to have known that recurring mistakes by an "excellent, if not model employee," called for reasonable inquiries as to the cause of his problems.
"By failing to engage in any accommodation inquiries at all, and to not take any "active steps" to inquire into or seek information about Daniel's disorder, or to ask as to whether his evident problems might inform a decision to continue to employ him, I find that Bonté breached the procedural aspect of the duty to accommodate.
"I further find that in moving to terminate him Bonté discriminated against Daniel because of his disability, violative of New Brunswick's human rights protections."
Breen's ruling directs that Daniel be returned to the status of an employee at Bonté, with compensation for lost income and benefits.
Breen directs that efforts be made to employ Daniel in the company's ready-to-eat division instead of where the raw food is prepared and handled.
"It is clear to me that the so-called Raw is a work environment that Daniel ought not return to, even with accommodation measures," wrote Breen. "I am satisfied, on the evidence heard, that there exist too many variables present or likely to be present to consider this work placement reliable or safe for Daniel, or for Bonté, on his re-entry to the plant."
Neither the union nor Bonté Foods responded to a request by CBC News on Monday to discuss the ruling.