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Did you really mean it?

​Employee’s intent an important consideration when disciplining misconduct
Employment law
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By Jeffrey R. Smith

The road to hell is paved with good intentions.

That’s a well-known proverb. There are somewhat different perceptions of what exactly that means, but essentially it means the end result means more than what was intended. Or, considering the best way to approach something is better than rushing into it. However, when it comes to employee discipline, the opposite may be true — intention may be more important than the misconduct itself.

It’s a concept that has been addressed in arbitrations and court cases dealing with discipline for employee misconduct. Employees and unions have contested dismissals or other forms of discipline on the basis that the employee didn’t mean to do what she did, or at least didn’t mean for the effects to be as serious. And, in many cases, that argument has been successful.

A Newfoundland and Labrador oil rig worker found out the importance of intentions recently when he was caught with a small amount of marijuana in his pocket when he arrived at a facility where he was to take a helicopter to an offshore oil rig. The drug was inside a small piece of aluminum foil in the pocket of his jeans, which he claimed not to have been aware of.

The worker acknowledged that he had consumed marijuana on a hunting trip in the recent past, and he must have put it in his jeans pocket and forgotten about it. He insisted he wasn’t aware it was in his pocket when he left for work, as he was familiar with the employer’s policy banning consumption or possession of illegal drugs at a company facility or on company business.

The employer fired the worker, citing its zero tolerance policy for possession and the reality was the worker possessed marijuana while on company business. An arbitrator upheld the dismissal when the union grieved it. The arbitrator found that the worker was unaware he had brought the marijuana to work, but agreed with the employer that the fact of his possession was enough to violate the policy.

However, an appeal court took a different perspective, placing more emphasis on the worker’s intentions. The worker denied intending to bring marijuana to work and knew that he should follow the policy. Since the arbitrator agreed that the worker wasn’t aware that he had the drug in his pocket, he didn’t intend to violate the policy. Violating the policy unknowingly wasn’t really violating it at all, said the appeal court in overturning the arbitrator’s decision and reinstating the worker.

In the above case, the employer had an extremely safety sensitive workplace with significant dangers, so it was important to prevent drugs and alcohol from being present so any risk of intoxicated employees would be avoided. However, it makes sense that an employee who accidentally brings a drug like marijuana into the workplace because he forgot it was in his pocket is not going to use it — especially if he doesn’t even realize he has it.

On the other hand, the presence alone of the drug in the workplace would create a certain level of risk — the employee could find it and decide to use it, or someone else could find it and take it, increasing the risk of an intoxicated person in a dangerous situation. One could argue it’s the employee’s responsibility to check the pockets of the clothes he’s wearing to work to make sure there is nothing in them that he shouldn’t be bringing to work.

How important are employee intentions when it comes to misconduct? Should culpability be tied more to intention or the risk/effects of their misconduct?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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