The BC Court of Appeal has ruled there was no prima facie discrimination and therefore no requirement for accommodation when an employer dismissed an alcoholic employee for stealing alcohol from his liquor store workplace, regardless of any connection between his alcoholism and impaired moral judgment.
The Court’s ruling is the latest development in a series of cases evolving from the 1998 dismissal of Brian Gooding, a Liquor Distribution Branch employee. Mr. Gooding’s dismissal was originally upheld at arbitration. The arbitrator concluded that despite the influence of alcoholism on his behaviour, Mr. Gooding knew it was wrong for him to steal. The arbitrator therefore considered the case based on a traditional discipline analysis. The arbitrator’s decision was the subject of a review by the Labour Relations Board. The review decision was then reconsidered by the Board.
The Labour Relations Board ultimately remitted the case back to the arbitrator for consideration of its “hybrid” analysis, combining a review of disability accommodation under human rights principles with the traditional discipline analysis. Applying the hybrid analysis, the arbitrator concluded that the employer had not met the test of undue hardship in accommodating Mr. Gooding’s alcoholism, and awarded him approximately 7 years of back pay. That decision was appealed to the Court of Appeal.
The majority of the Court held that it is not discriminatory to dismiss an employee for misconduct amounting to a crime related to the employment, provided the alcoholism itself has played no part in the employer’s decision to dismiss. The Court remitted the case to the arbitrator for a decision on whether the dismissal was otherwise justified in light of all the circumstances of the case, under Section 89 of the Labour Relations Code.
The majority of the Court stressed that Mr. Gooding was dismissed like any other employee would have been in the circumstances:
I can find no suggestion that Mr. Gooding’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. He was terminated, like any other employee would have been on the same facts, for theft. 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 majority also relied on the fact the Human Rights Code prohibits discrimination on the basis of criminal convictions only if they are unrelated to employment. In this case, although the employer did not pursue charges against Mr. Gooding, his theft amounted to a crime and was directly related to his employment.
This decision of the Court of Appeal constitutes a significant move away from prior case law concerning misconduct that may be connected to an employee’s addiction. The Court of Appeal has clarified that, at least in the case of misconduct amounting to a crime, there is no prima facie discrimination if the addiction itself plays no part in the decision to discipline or dismiss. Absent prima faciediscrimination, no accommodation is required.