Previously printed in the LexisNexis Labour Notes Newsletter.
In a recent B.C. case, West Fraser Mills Ltd. v. Northern Interior Woodworkers' Assn. (Souter Grievance),  B.C.C.A.A.A. No. 85 (Glass), an arbitrator upheld the discharge of an employee with a severe tobacco use disorder for smoking on site contrary to the employer's policies.
The grievor was a machine operator at the employer's lumber mill in Smithers, British Columbia. He was a long-service employee who commenced work at the mill in 1979 when he was 19 years old. The grievor's weight and related joint problems became such in 2012 that he suffered from limited mobility. The employer accommodated him by offering him an operator position where he did not have to walk or stand for long periods of time.
The grievor was caught smoking inside his operator booth while on shift on June 26, 2019. He denied that he had been smoking when he was confronted. He had, incidentally, been caught smoking in the same booth one year earlier and had received a five-day suspension and final warning for breaching the company's smoking and safety policies at the time.
The employer conducted an investigation and discharged the grievor from employment two days later. The union responded by filing a grievance alleging that termination of his employment was both excessive and discriminatory. It argued that the grievor had a severe nicotine addiction and his disability was a factor in the termination of employment. This, the union said, was in contravention of section 13 of the B.C. Human Rights Code (the "Code"). It also argued that there had been no attempt to accommodate the grievor's tobacco use disorder in spite of the fact that the disorder had caused an employment problem for the grievor when combined with his increased physical disability, which prevented him from accessing the designated smoking areas at the mill.
The employer stated its reasons for discharge included the grievor's repeated smoking on shift, which was a serious safety violation and contrary to the employer's policies. It also highlighted the grievor's dishonesty in the investigation of the matter. The decision to discharge the grievor, the employer argued, was not related in any way to the grievor's disability. With respect to accommodation, the employer said that the grievor did not inform the company of his disability, which made accommodation efforts impossible.
In upholding the grievor's discharge from employment, the arbitrator confirmed the principles set out in Stewart v. Elk Valley Coal, 2017 SCC 30 and British Columbia (Public Service Agency) v. BCGEU, 2008 BCCA 357 (also known as the Gooding case).
The arbitrator held that an employer should not be found to have discriminated for enforcing a no-smoking ban just because the employee in question has a nicotine addiction and his non-compliance with the ban is related to addiction. The disciplinary consequence arises from the defying of the ban itself and not the disability.
On the evidence submitted, the arbitrator concluded that the employer dismissed the grievor solely for breach of the smoking and safety policies and his dishonesty in the investigation. This, the arbitrator made clear, did not constitute prohibited discrimination in employment under the Code.
The arbitrator added that an employer must be aware of an employee's disability, or should reasonably be aware of it, before the duty to accommodate can be triggered. In this case, the grievor failed to put the employer on notice about his nicotine addiction, and indeed went so far as to positively conceal and lie about the addiction. There was thus no failure to accommodate.
The arbitrator then went on to consider whether termination of the grievor's employment was excessive in all of the circumstances. He held that a hybrid analysis was required in the case because the grievor's misconduct was likely a mix of addiction-driven conduct (non-culpable or non-blameworthy conduct) and voluntary conduct (culpable or blameworthy conduct).
The arbitrator concluded that mitigating circumstances operating in the grievor's favour were outweighed by factors including the following: (a) the safety impact that the grievor's conduct had on others; (b) his unwillingness to recognize the legitimate safety concerns addressed in the workplace rules around smoking; (c) the grievor's concealment and denial of his problem, the revelation of which might have led to rehabilitative efforts; and (d) his repeated dishonesty in the investigation. Specifically, the grievor's lengthy service and any compulsion arising out of his nicotine addiction were not sufficient to overcome the combination of these factors.
The arbitrator concluded that the employer had just and reasonable cause for the dismissal of the grievor.
This case confirms that even when an employee may suffer from a disability, in the right circumstances, an employer may impose sanctions for breach of safety and similar policies because to do otherwise would undermine the objectives and deterrent effects of those policies.
In addition, the case reaffirms the obligations which an employee has in the accommodation process. The employer is not required to inquire into whether the employee's disability is impacting performance unless it knows, or should reasonably know, of the connection, link or nexus between the employee's disability and his or her misconduct.
Finally, where there is the opportunity for an employee to voluntarily disclose his or her addiction and seek and receive treatment, the employee who hides the addiction and violates the employer's safety and similar policies can be held accountable for putting himself or herself and his or her co-workers at risk.
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