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Is it discriminatory to dismiss an alcoholic for stealing alcohol?

by David Doorey November 18, 2008
written by David Doorey November 18, 2008

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.

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
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I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
13h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

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