Dismissal for cause never clear-cut
What seems like a no-brainer can be anything but, judging by a recent human rights case in Manitoba
Sep 21, 2015
By Stuart Rudner
Imagine you are the director of human resources at a health-care facility, and you find out one of your health-care aides — who had already been noted to be frequently absent — was intoxicated while at work. Imagine you then entered into a last chance agreement with this employee that involved her commitment not to consume alcohol, and you are were subsequently advised by staff that she had been observed drinking outside of work hours and, most disturbingly, she smelled of alcohol while at work.
Would you assume you had just cause to dismiss her? Bear mind that as an aide, part of the employee's duties involved working with vulnerable clients in your health-care institution.
This hypothetical is based on a true story, as they say. In a recent decision rendered by the Manitoba Human Rights Commission, this set of facts was considered. An important piece of information was that the employee in question was an alcoholic.
The decision provides further confirmation that the law of dismissal for cause, as well as the duty of accommodation of disability, is far more complex than some seem to believe. As I have explained on innumerable occasions — in presentations, articles, blog posts and my book, You’re Fired! Just Cause for Dismissal in Canada — the question of whether or not just cause for dismissal exists in a particular case is quite complex and is based not only on the misconduct in question, but on a contextual approach that considers all relevant factors. The relevant factors include mitigating circumstances such as addiction.
In this recent case, the human rights commission concluded the complainant had been dismissed due to the fact she consumed alcohol, and her consumption of alcohol was due to a disability — her alcoholism. As a result, there was a breach of her human rights.
The dismissal was overturned and she was ordered to be reinstated. The employer was also ordered to pay her salary for the three years of lost employment, along with damages of $10,000 for injury to personal dignity, feelings and self-respect.
Unfortunately, there are no “open and shut" cases when it comes to dismissal for cause. What may seem to be a “no-brainer" — such as a woman who is tasked with caring for the sick showing up at work while drunk — is obviously not as clear-cut as many would think.
The bottom line is the law is incredibly complex and every situation must be assessed based its own particular set of circumstances. Advice from a lawyer who specializes in employment law is not a luxury, it is necessary before any decisions are made that will expose an organization to potential liability, as the employer found out in this case.
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Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at email@example.com