Northern Exposure

Alcohol Addiction Is Not a Blanket Defense for Theft

By Dominique Launay

There can be little doubt that dealing with employees suffering from the disease of addiction “whether to drugs, alcohol, or even gambling” is a challenge for employers. That challenge becomes greater when the employee raises the addiction as an excuse for engaging in misconduct.

In a recent case, the question arose whether the employer had the obligation to accommodate an employee who is guilty of theft because he suffered from alcohol dependency?

In this case, the British Columbia Court of Appeal dealt with this question. The court overturned the reinstatement ordered by the arbitrator. The court questioned the degree to which the employee’s disability played a role in his employer’s decision to terminate employment. The Supreme Court of Canada recently declined to hear an appeal from that decision.

Facts
The employee was a longtime employee and manager of a liquor store in British Columbia. Unbeknownst to his employer, he began to drink heavily. He also began to steal alcohol from the store he managed. Eventually, he was confronted about his thefts.

After being assured that no criminal charges would be filed, he admitted to the thefts and told his employer about his drinking problem. The employer suspended the employee pending investigation and advised him of the employee assistance program. His employment was later terminated on the grounds that he had willfully stolen from his employer.

Arbitrator’s decision
The union filed a grievance, alleging that the employer had a duty to accommodate the employee. The arbitrator heard the grievance and concluded that the employee’s dismissal for theft would have been warranted without a human rights analysis. He then turned to that human rights analysis and concluded that the employee’s termination for theft was on its face discriminatory because his disability (alcohol dependency) was a factor in the theft. The arbitrator accepted the medical evidence to the effect that an addict acts out of compulsion and therefore the employee’s alcoholism was a contributing factor.

The employer alleged that human rights law should not allow an employee to rely on his addiction as a legal defense to termination and as a shield to any form of discipline simply because there is some connection between the misconduct and the disability. But the grievance was upheld and the employee was reinstated to his employment and awarded back pay. By the time the arbitrator’s decision was issued the employee was owed seven years in back pay.

Court of Appeal’s decision
The Court of Appeal overturned the arbitrator’s decision and reasons. In doing so, the court began by considering the objective of British Columbia’s Human Rights Code. That objective is to ensure that people are judged as individuals rather than on the basis of preconceptions about groups to which they belong. The court questioned the degree to which the employee’s disability played a role in his employer’s decision to terminate his employment. The court stated the following:

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.

Lesson
This decision by British Columbia Court of Appeal changes the analysis in many cases where addiction is an issue. The court reiterates that addiction is not a blanket excuse for an employee’s misconduct. It emphasizes that what is relevant is whether the existence of the addiction was a factor in the decision to dismiss the employee. The court’s reasoning will have an impact on similar cases where other types of addiction are an issue.