May 16, 2017
In 2008, the B.C. Court of Appeal dealt with a case in which an admitted alcoholic was fired for theft. His union raised the existence of the addiction, and its alleged relation to the theft, as a basis for claiming the employer had a duty to accommodate.
Gooding was a supervisor in a liquor store owned by B.C.’s Liquor Distribution Branch. He had been stealing stock from the store over as much as a two year period of time. He was confronted by his employer and admitted, for the first time, that he was an alcoholic.
He was fired from his job and his union, the B.C. Government and Service Employees’ Union, grieved. The labour arbitrator originally upheld the termination but, upon appeal to the B.C. Labour Relations Board, the matter was directed back to the arbitrator for reconsideration. The second time around, the labour arbitrator determined that the employer’s action was discriminatory because Gooding’s disability was a factor in the thefts. Gooding was reinstated to his employment and awarded seven years’ back pay.
That decision was appealed and, in overturning the reinstatement, B.C.’s Court of Appeal found “no suggestion that Mr. Gooding’s alcohol dependency played any role in the employer’s decision to terminate him. He was terminated, like any other employee would have been on the same facts, for theft.”
The Court concluded that it could “find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment…”
Since the Court of Appeal’s decision, the approach of some arbitrators has been to apply a just cause standard to disciplinary offences that cannot be attributed entirely to the employee’s addiction. In cases where the offence and addiction are related, some arbitrators have developed a hybrid approach in order to separate the culpable parts of the employee’s conduct from the non-culpable parts.
The Gooding decision was followed, and a just cause standard applied, in the Ontario arbitration case of Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance) (2011), 210 L.A.C. (4th) 268, where the grievor was terminated for a number of thefts. The Union argued that the grievor suffered from a cocaine and marijuana dependence, pathological gambling, alcohol abuse and depression at the time of the thefts. The Union further asserted that the grievor’s thefts were a direct result of the grievor’s need for money to support his addictions to cocaine and gambling and that he should be reinstated on sick leave. The Employer asserted that it had just cause to terminate the grievor and that the grievor’s cocaine dependence did not cause the grievor to commit the thefts. Moreover, the grievor’s addiction played no part in the decision to terminate his employment.
Applying the Court’s reasoning in Gooding, the arbitrator found that there was no evidence that the termination was at all related to the grievor’s disability but, in fact, the employer dismissed the grievor just as it would any other employee who committed theft. The Union had not proven a prima facie case of discrimination as the disability was not a factor in the adverse treatment. The only connection between the theft and the cocaine addiction was the fact that the grievor used the money he received in the thefts to purchase cocaine. The use of that money was a choice the grievor willingly made instead of using his own money that he had readily available. Therefore, the arbitrator found that the Employer had just cause to discipline the grievor and the penalty of discharge was just and reasonable in the circumstances.
Other arbitrators have attempted to distinguish the decision of the B.C. Court of Appeal, opting instead for a hybrid approach to assessing an addicted employees’ conduct. For example, in the case of Legal Aid Lawyers Assn. v. Manitoba (Fawcett Grievance) (2009), 181 L.A.C. (4th) 296, the grievor, who was a known cocaine addict, was terminated for his failure to report criminal charges laid against him to the Employer. The grievor claimed that his failure to disclose the events to his employer was part of his addictive behaviour and, therefore, the termination was discriminatory. The employer claimed that his employment was terminated because of his failure to report the events and that the grievor was treated in the same way as other employees would be treated in like circumstance. The employee therefore suffered no discrimination.
The arbitrator determined that both the culpable and non-culpable aspects of the grievor’s conduct should be assessed in cases concerning conduct that could be related to the disability of addiction. This analysis is known as the hybrid model. The arbitrator found that the grievor’s decision not to report the criminal charges to his employer was influenced by, and related to his addiction. Therefore, as the addiction was a factor in the employee’s misconduct which gave rise to the discipline, the grievor’s disability was a factor in the decision to terminate his employment and discrimination occurred. The employer had the duty to accommodate the grievor.
As one can tell, the approach to determining whether or not it is reasonable to infer that an employee’s disability was a factor in their misconduct remains a matter of debate.
Where employee misconduct is the first sign to the employer of an employee’s addiction or other disability, however, the employer may not have to forego its usual disciplinary procedures. In Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225, which involved a safety-sensitive worksite, the court upheld the termination of an employee based on drug use. The majority of the Alberta Court of Appeal concluded that the dismissal of an employee whose cocaine addiction came to light following a post-incident drug test did not constitute discrimination as the employee had been dismissed for failing to disclose his problem and continuing to use drugs, rather than the disability itself.
The employer’s policy in Stewart encouraged employees who were concerned about their use of alcohol or drugs to seek assistance voluntarily but provided for the possibility of discipline where an employee tested positive for drug use after an accident or other significant incident. Though Mr. Stewart had argued that, prior to the accident, he had been in denial about his drug use; the majority rejected the assertion that this excused him from his duty to seek assistance or accommodation, particularly at a safety-sensitive worksite. It is not clear to what extent, if any, the same reasoning would apply in a non-safety-sensitive worksite.
On June 15, 2017, the majority of the Supreme Court of Canada affirmed the Alberta Court of Appeal decision.
Parts of this article have been provided by Robert Smithson, a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at firstname.lastname@example.org. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.
Additional information provided by Ryan Anderson and Natasha Jategaonkar, employment lawyers with Mathews Dinsdale & Clark LLP (March 2017). The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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