We considered in my employment law class recently a hypothetical case in which a bartender was dismissed for drinking on the job (stealing product), but who then claimed he was an alcoholic and required accommodation for his disability. The theory of the employee’s case would be that alcoholism impairs judgement and compels the alcoholic to drink, especially if surrounded by alcohol.
Low and behold, along comes B.C. v. B.C.G.S.E.U., a recent decision of the B.C. Court of Appeal dealing with roughly the same fact scenario. The employee was a manager of a retail liquor store, and was caught stealing alcohol over a period of time. When confronted, he admitted the theft, but claimed he was an alcoholic and that the disease was a mitigating factor in the theft, since alcoholics experience overwhelming desire to drink alcohol.
In a 2-1 decision, the Court overruled the decision of a labour arbitrator, who had found in favour of the employee/union. Justice Huddart for the majority ruled:
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.
The majority relied on the fact that the B.C. Human Rights Code does not protect against discrimination on the basis that an employee has been convicted of a crime related to the employment. In the case, the employer had elected not to call the police, but the Court found the employee admitted to the facts necessary to establish the crime of theft. Therefore, the Court ruled that allowing the employee to win a discrimination complaint when the employer does not press charges would simply encourage employers to always press criminal charges. That would not help employees.
The minority judge (Kirkpatrick J.), on the other hand, found that the dismissal was related to the disability (alcoholism), and therefore a prima facie case of discrimination had been made out. The onus then shifted to the employer to show accommodation was not possible, and the employer had failed to do that.