Generally speaking, courts have been more sympathetic towards employees dismissed for intoxication; this is due to human rights tribunals viewing drug and alcohol addiction as a disability protected by prohibited grounds of discrimination under human rights law. When dealing with employees, therefore, that have been intoxicated at work, there are 2 major things to consider.
Firstly, there should be consideration of whether the intoxication is linked to a health problem such as depression, addiction, chronic alcoholism or drug use, and so forth. Being aware of the indicators are important, as human rights tribunals will award a wrongfully dismissed employee remedial damages if the intoxication is linked to a disability. In such an instance, an employer would have to show there was an attempt to accommodate the employee up to the point of undue hardship. Employers also should be prepared to offer the employee assistance in attending rehabilitation programs, as failing to do so would be looked negatively upon by human rights tribunals.
Secondly, for dismissal to be justified, it must be clear that intoxication is affecting the employees’s ability to perform his/her job with prior warnings. This was the case in Johnston vs. Algoma Steel (Ont. 1989). Although Johnson arrived intoxicated to his workplace and damaged a parking lot traffic sign, the dismissal was ruled unjust because Johnson’s work performance was not shown to have been negatively impacted. In such circumstance, the employer must examine how the intoxication relates to the job. For instance, if an employee is required to operate heavy machinery, being intoxicated would be incompatible with the safety sensitive environment heavy machinery creates. Dismissal in such an instance would be easier to justify.
When dealing with human rights law and dismissal, there is no simple answer as to whether a dismissal would be justified. This requires a holistic examination that only an employment law expert would be able to do effectively. If you are faced with a similar scenario, Whitten and Lublin have a team capable of providing expert advice for both employers and employees.