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due diligence.pdf  [184.61K]

drugpolicy.pdf  [46.32K]

 

Addiction Is Not A Blanket Excuse For Misconduct

Tue, 2008-10-14 07:55 - Robert SmithsonThere can be little doubt that dealing with employees suffering the disease of addiction is a challenge for human resources professionals. That challenge becomes greater when the employee raises the addiction as an excuse for engaging in misconduct. The B.C. Court of Appeal has recently 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 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 Gooding's disability played a role in his employer's decision to terminate his employment. It 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 commented that "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." 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..." Employers will applaud this decision by B.C.'s Court of Appeal because it gives voice to their view that the existence of an addiction isn't always a relevant fact. It emphasizes that what is relevant is whether the existence of the addiction was a factor in the employer's decision to dismiss the employee. While, on its face, the outcome (in taking into account whether the employer intended to discriminate) may be desirable, opponents would say it just opens the door to all employers to claim their actions weren't motivated by the employee's disability. By focusing on the intentions of the employer, the Court seems to have disregarded the extent to which the disability may have motivated Gooding's misconduct. It is questionable whether the Court of Appeal's reasoning will stand up to the scrutiny of the Supreme Court of Canada. Whether the union will pursue an appeal to our highest court remains to be seen. For the moment, this decision represents the law of the land - as it relates to addiction in the workplace - in British Columbia.  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 on to http://www.pushormitchell.com/.