Arbitrator Stan Lanyon recently upheld the dismissal of an alcoholic employee for stealing alcohol from the liquor store at which he was employed. The matter had been remitted back to the Arbitrator by the BC Court of Appeal, which overturned the Arbitrator’s previous decision wherein he had concluded the employer failed to accommodate the employee’s alcoholism to the point of undue hardship.
The Arbitrator’s latest ruling is the most recent 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. Arbitrator Lanyon concluded that despite the influence of alcoholism on his behaviour, Mr. Gooding knew it was wrong for him to steal. Therefore, the Arbitrator applied a traditional discipline analysis and dismissed the grievance. The Arbitrator’s decision was the subject of a review by the Labour Relations Board. That review decision was then reconsidered by the Board.
The Board ultimately developed the “hybrid” analysis, which addresses the extent to which discipline of otherwise culpable behaviour should be mitigated by reference to the non-culpable nature of actions taken as the result of a disability such as addiction. The Board remitted the case back to the Arbitrator for consideration on this basis. Applying the hybrid analysis, Arbitrator Lanyon 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 Court of Appeal ruled there was no prima facie discrimination and therefore no requirement for accommodation, regardless of any connection between Mr. Gooding’s alcoholism and impaired moral judgment. The majority of the Court held that it is not discriminatory to dismiss an employee for misconduct amounting to a crime related to his employment, provided the alcoholism itself plays 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.
Arbitrator Lanyon concluded that Mr. Gooding’s alcohol addition, and his subsequent recovery, were not sufficient factors to mitigate his dismissal, given the seriousness of his employment offence. Accordingly, the grievance was dismissed.
The long history associated with this case illustrates the challenges for employers in addressing misconduct in the context of addiction given the ongoing evolution in the law regarding the proper legal tests to be applied.
(Click here for copy of Decision)