By Robert Smithson 

Complying with human rights obligations relating to employees suffering the disease of addiction is a challenge for human resources professionals.  The challenge increases when the employee engages in misconduct which is driven by that addiction.

Courts, tribunals, and arbitrators have swayed back and forth on the question of whether addiction-related misconduct can amount to just cause for summary dismissal.  Recent examples include an alcoholic employee who stole alcohol from his employer, another who used a company car in the course of buying cocaine during working hours, and another who stole from another employee to feed her gambling addiction.

Employers have been left in the very difficult position of not knowing whether summary dismissal in these circumstances is an appropriate response.

In 2008, the B.C. Court of Appeal dealt with the case of an alcoholic who was fired for theft.  His union raised the existence of the addiction, and its alleged relationship to the theft, as a basis for claiming the employer had a duty to accommodate.

He was a supervisor in a liquor store owned by B.C.’s Liquor Distribution Branch.  He had been stealing stock for as much as two years but when confronted by his employer he admitted his alcoholism.

He was fired from his job and his union grieved the dismissal.  Ultimately, the matter landed before the B.C. Court of appeal, which began by considering the objective of B.C.’s Human Rights Code.  That objective is to ensure that people are judged as individuals rather than on the basis of preconceptions about groups to which they belong. 

The Court questioned the degree to which the employee’s disability played a role in the employer’s decision to terminate his employment.  It found no suggestion that his alcohol dependency played any role in the employer’s decision to terminate – he was terminated, like any other employee would have been on the same facts, for theft.

The Court upheld the dismissal, stating that the fact “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…”.  Score one for the employer.

In another recent decision, an Ontario arbitrator reinstated an employee who had been dismissed for using a company car, during working hours, to purchase cocaine.

The employee was a known drug user and, after a relapse, confessed to the employer his drug-related misconduct.  He was fired for having purchased illegal drugs while on company time.

The arbitrator found that there was just cause for dismissal based on the employee’s unauthorized leave from work for the purpose of purchasing illegal drugs while in company uniform and wearing a company uniform.  However, the arbitrator found the employee’s judgment was impaired by his addiction to cocaine and, as a result, he was reinstated to his employment.  Score one for the employee.

A recent Nova Scotia decision involved a gambling addict who stole a debit card from another employee and used the proceeds for gambling on video lottery terminals.  The employee attributed her actions to a severe gambling addiction which impaired her judgment.

The employee was fired for having compromised the confidence and trust the employer had in her.  The arbitrator upheld the dismissal on the basis that her addiction was not proven to render the theft so beyond her control as to be non-culpable. 

In the course of his decision, the arbitrator asked, whether people who have an uncontrollable impulse to gamble are any less responsible for theft.  He put it this way, “Does stealing to buy drugs or liquor or to gamble carry less responsibility than stealing to buy expensive cars or clothes, or sex?”  Score another for the employer.

Cases such as these demonstrate that adjudicators are still searching for answers to determine the level of culpability when an employee has engaged in serious misconduct driven by an addiction.  In the meantime, employers are searching for certainty in order to know how to appropriately react to these difficult situations.

Robert Smithson is 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 smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.