The BC Court of Appeal has concluded that the BC government's decision to fire one of its liquor store managers (Brian Gooding) for stealing liquor was not discriminatory under the BC Human Rights Code.
This particular case has a long and rather tortuous history, taking a good ten years to reach a conclusion from the time Mr. Gooding was fired and comes after the employee in question had decided to retire. The employee, Brian Gooding, was a member of the BC Government and Service Employees' Union ("the Union") and from 1984 to 1998, was the manager of a liquor store operated by the BC government on Salt Spring Island. Between 1996 and 1998, Mr. Gooding began to drink alcohol heavily and also began to steal alcohol from his workplace. After other employees caught on to Mr. Gooding's thievery and complained, an investigation ensued and on June 18, 1998, he was confronted about the thefts. Mr. Gooding admitted to stealing and immediately advised his employer that he was an alcoholic. On June 20, Mr. Gooding entered into an alcohol rehabilitation program and has remained sober ever since. Mr. Gooding was suspended without pay on June 24 and then was subsequently terminated on August 21 after the Government completed its investigation.
The Union grieved Mr. Gooding's termination and thus began the winding road of arbitration, appeals and reconsiderations. At the initial arbitration, the termination was upheld. The arbitrator found that while the employee's alcoholism was why he stole the alcohol, the evidence showed that the employee knew what he was doing and that what he was doing was wrong. As a result, the employee's addiction played no role in assessing responsibility for his conduct. The decision was appealed. The labour board appeal panel concluded that the arbitrator had applied an incorrect analysis of the employee's conduct. The appeal panel determined that when dealing with misconduct of an addicted employee, a "hybrid analysis" had to be used. This analysis recognized that addiction can play a factor in an employee's misconduct even if other aspects of the misconduct could be found to be voluntary. In this context, an employer (and an arbitrator upon review) has to determine what part of an employee's conduct is as a result of an addiction and triggers a duty to accommodate and what part of the employee's conduct was within his or her control and subject to discipline. The end result can be a mixture of accommodation (providing the employee with rehabilitative treatment) for the disability-related behaviour and discipline (such as removing an employee from a managerial position) for the non-disability related behaviour.
The matter returned to the arbitrator who first heard the grievance. This time, he concluded (at least implicitly) that the Government's firing of Mr. Gooding was prima facie discriminatory on the basis of disability (alcoholism) and that the Government could have accommodated Mr. Gooding short of terminating his employment. The arbitrator reinstated Mr. Gooding but to a non-supervisory position.
The Government appealed this latter decision of the arbitrator to the Court of Appeal. Madam Justice Huddart wrote the majority decision and she concluded that the arbitrator's decision was in error. In particular, she concluded that Mr. Gooding had not proven a prima faciecase of discrimination, a threshhold required to be met before an employer's duty to accommodate is even triggered. After reviewing a number of prior decisions which explained what is required of a person alleging discrimination in order to prove a prima faciecase, Madam Justice Huddart concluded as follows:
"I can find no suggestion in the evidence that Mr. Gooding's termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer's decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct."
Madam Justice Huddart pointed out that the BC Human Rights Code was "not designed to prevent employers from dismissing an employee who has committed a crime related to his or her employment."
She remitted the case back to the arbitrator to make a determination as to whether Mr. Gooding's dismissal was excessive when all of the circumstances were taken into account.
Discussion
This case demonstrates the difficult balancing act that arbitrators and courts often have to perform when enforcing provisions of a collective agreement relating to misconduct that is subject to discipline and ensuring protections accorded to employees with disabilities under human rights legislation are respected. This balancing act has lead to an inconsistent approach to cases of this nature across the country. And, it has lead to an inconsistent approach in this one case alone.
Here, the arbitrator initially concludes the presence of an addiction does not excuse the employee's criminal behaviour and termination was appropriate. Then an appeal panel finds that the presence of an addiction means that an employee's behaviour might be explainable due to a disability and an employer might have a duty to accommodate along with imposing discipline, as a result. Finally, the Court of Appeal appears to conclude (using a different approach than applied by the arbitrator at first instance but coming to the same result) that when an employee's conduct is criminal in nature the employer has the right to discipline regardless of the presence of an addiction and the addiction only comes into play in determining what discipline should be imposed. In other words, the employer's duty to accommodate an employee's disability in these particular circumstances is not engaged until the assessment of the disciplinary penalty.
See British Columbia (Public Service Agency) v. British Columbia Government and Service Employees' Union, 2008 BCCA 357.
