Recently, a Mr. Lube employee tweeted a request for some marijuana to help him get through his shift. This may have gone unnoticed by the media, but it came to the attention of the York Regional Police, who used their Twitter account to respond by asking, “Can we come too?” Presumably, his employers were asking a different question: “Can we fire him?”
I have spent a good portion of my career researching, writing about and advising clients with respect to just cause for dismissal. It is an extremely complicated issue (hence the size of the two volume text I wrote: You’re Fired! Just Cause for Dismissal in Canada). Throw in a potential disability, and the need for accommodation, and it becomes even more so.
I always begin by explaining that there are no hard and fast rules regarding what constitutes just cause for dismissal. Canadian courts have confirmed over and over again that, in assessing whether just cause for dismissal exists, an employer must not only consider the misconduct or poor performance in question, but also adopt a contextual approach and consider all of the relevant circumstances.
In the leading case of McKinley v. B.C. Tel., 2001 , the Supreme Court of Canada wrote:
More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer.
In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal.
While this case dealt with alleged dishonesty on the part of an employee, the principle has been extended to all forms of misconduct.
Assessing whether just cause for dismissal exists is a two step process:
- Did the employee engage in misconduct?
- If so, has the employment relationship been irreparably harmed, to the point that summary dismissal is warranted?
Just because an employee is guilty of misconduct, that does not mean that dismissal must follow. In many circumstances, a lesser form of discipline will be appropriate. The courts will require that the severity of any discipline imposed be proportionate to the egregiousness of the misconduct. In other words, the punishment must fit the crime, bearing in mind all circumstances. That is fitting, since summary dismissal is often referred to as the “capital punishment of employment law”.
A “contextual approach” must be used that takes into account all relevant circumstances. This will require consideration of, effectively, the entire relationship, including:
- length of employment
- prior misconduct
- prior discipline
- the nature of the employee’s position
- the level of trust required
- the employer response to similar misconduct in the past
- the egregiousness of the offence and the need for proportionality
- the individual’s conduct when confronted with the allegations
- any other relevant circumstances
Where applicable, the employee’s disability would certainly be a relevant factor. While the request for a “spliff” seems to be the act of a recreational drug user, it might be the plea of an addict. Addiction is recognized as a disability that is protected by human rights legislation. Dismissing an employee for an act attributable to their disability could be a failure to accommodate and a breach of that legislation; this would depend on a number of factors.
Just because an employee suffers from an addiction, this does not necessarily mean that nothing can be done. The duty to accommodate is to the point of undue hardship, and is always subject to limitation where there are bona fide occupational requirements. For example, a truck driver that routinely comes to work drunk is not “entitled” to continue driving trucks just because their intoxication is caused by an addiction. However, the employee’s disability does have to be taken into account when assessing any discipline to be imposed.
Stuart E. Rudner
Rudner MacDonald LLP
Canadian Employment Law