By Gwendoline Allison
It is well-known that employers must not discriminate against an employee on the basis of an employee’s disability. It is equally well-known that alcoholism and drug addiction are disabilities. A challenge arises for employers when alcoholic or drug-dependent employees steal to feed their addictions: is it discrimination to terminate the employment?
In recent years, decisions of the British Columbia Courts have offered support to employers in handling this difficult issue. That trend has continued in a recent decision of the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. British Columbia Government and Service Employees Union, 2008 BCCA 357, where the majority of the Court of Appeal held that the employer did not discriminate when it fired an alcoholic employee who stole liquor from his employer. The key finding was that the alcoholism was not a factor in the decision to terminate the employment.
The employee in question was a manager of a liquor store. Unbeknownst to his employer, he developed an alcohol problem. Over an extended period of time, the employee began stealing alcohol from the store. Eventually, the employer confronted the employee about the thefts. After being assured no criminal charges would be laid, the employee admitted the thefts and advised his employer for the first time that he was an alcoholic. He then attended a rehabilitation programme at his own expense, and abstained from alcohol thereafter.
The employer terminated the employment, and the employee challenged the dismissal in a grievance procedure. After a lengthy arbitration and appeal process, the arbitrator found that the thefts were related to alcoholism, the dismissal was discriminatory and the employer was required to accommodate the disability, which in this case meant continuing the employment.
A majority of the Court of Appeal overturned the arbitrator’s decision. It remitted the decision back to the arbitrator to determine whether the decision to dismiss was excessive, under the Labour Relations Code, an analysis not related to the employee’s alcoholism.
The Court reaffirmed that to establish discrimination, a complainant must establish that he has a disability, the employer refused to continue his employment, and it is reasonable to infer from the evidence that his disability was a factor in that refusal.
The Court found that in the present case, there was no suggestion that the employee’s alcohol dependency played any role in the employer’s decision to terminate him or in its refusal to accede to his subsequent request for the imposition of a lesser penalty. Instead, the Court found that the employee was dismissed, “like any other employee would have been on the same facts, for theft”.
In reaching its decision, the Court stated:
The fact that alcohol dependent persons may demonstrate “deterioration in ethical or moral behaviour”, and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency.
In so commenting, the Court rejected the notion that theft by an alcoholic is automatically linked or even caused by the alcoholism.
The Court also drew an analogy between the criminal law context and the human rights context. The Court noted that the employer had the right to complain to the police. Had the employer done so, the employee’s alcoholism would not have been a defence to the charge. Indeed, the employee acknowledged that the facts were present to have led to a conviction and it was acknowledged by the arbitrator that but for the human rights issue, the conduct “clearly warrants discharge”.
If the employee had been convicted of theft, the employer could have dismissed the employee. In that scenario, the Court opined that the employer could have successfully argued that the dismissal was not discriminatory because it was based on a conviction that was related to employment. The Human Rights Code only prohibits discrimination on the basis of a conviction if the conviction is unrelated to the position.
In the result, the Court found that the decision to dismiss the employee was not arbitrary or based upon any preconceived ideas concerning his alcohol dependency. Instead, the decision was based on criminal misconduct. The fact that the theft was related to the alcoholism was irrelevant because it played no part in the decision to terminate, and the employee suffered no adverse impact as a result: he was treated the same as a non-disabled person who stole.
Finally, the Court commented that, on a policy basis, rendering dismissals discriminatory in such circumstances could lead to a backlash against addicted employees. Employers would be encouraged to lay criminal charges, addiction would be no defence, and then employers could lawfully terminate the employment. Employers could achieve the same result but now the employee would also have a criminal record.
The decision represents a significant clarification of how employers should approach theft by addicted employees. However, employers should still remain cautious. First, the evidence established that the alcoholism was not a factor in deciding to terminate the employment. Second, it was admitted that the level of misconduct was at a criminal level and could have resulted in a conviction. Third, it was admitted throughout that the employer did not know of the alcoholism until after it discovered the thefts.
Work Place Post is produced by the Labour & Employment Group at Clark Wilson. The information and links in this newsletter should not be treated by readers as legal advice and ought not be relied upon without further, detailed legal counsel being sought.