Can an employee who comes to work intoxicated, be terminated for cause? Except where the employee is suffering from alcoholism, the answer may be “yes”. The rationale for terminating an employee for cause in such circumstances has been summarized as follows:
“If an employee is intoxicated while at work, this is a serious breach of the employment contract. Not only is the employee unfit to perform the duties of the employment contract, the employee is often a disruptive or demoralizing influence in the workplace, and an embarrassment to the employer if in contact with the public. There are a number of cases upholding terminations for just cause based upon the intoxication of the employee, although the facts of each case must be carefully scrutinized to assess the magnitude of the breach or the particular contract of employment.
An employer may be justified in terminating an employee without notice based upon a single incident of intoxication. This will likely be the case where the individual is employed in a position where the safety of co-workers and/or the public at large depend upon his decisions and his actions.
The mere fact that an employee exhibits signs of alcohol consumption, while at work, will not in and of itself likely justify dismissal unless it can be shown that the consumption of alcohol negatively impacted upon the employee’s ability to perform his job.
In one case, where safety considerations were not involved, and where a long-term employee had been suffering emotional or personal problems which led to a bout of drunkenness and a brief period of unsatisfactory performance, the Court found that just cause did not exist.
In determining whether the circumstances of the case justify dismissal for cause, the Courts have considered some or all of the following factors:
1. the potential of physical injury to the intoxicated employee and to others;
2. the injury, or potential injury to the employer’s interest or reputation caused by the intoxicated employee;
3. the length and quality of the past service provided by the employee;
4. any personal circumstances which have given rise to the inappropriate conduct; and
5. the extent to which the intoxication was accepted by the employer, particularly where alcohol and entertaining are a normal part of the business day.
The Courts, however, will take a different approach to the issue of intoxication or impairment in the workplace if it is found that the employee is suffering from an underlying illness giving rise to his condition; namely, alcoholism. The distinction between drinking on occasion to excess and alcoholism is of course a medical, and not a legal one. Alcoholism is recognized as a disease marked not by the level of alcohol consumption per se, but by its chronic, uncontrollable use. In such circumstances, it has been observed that the employer’s legal obligation in dealing with an employee who is an alcoholic may be quite onerous:
“The nature of these illnesses is such that there may not be a clear path to a cure and the employer may have to suffer through several relapses of the employee before it can be said that the illness is permanent in nature, thereby ending the contract of employment.”
Alcoholism has been found to be a “disability” and therefore one is protected from discrimination as a result of such disease under the Ontario Human Rights Code. Termination of an employee for alcoholism will likely constitute a violation of an individual’s rights under the Code. Termination in such circumstances will therefore be unlawful and the employer will not be able to rely on the employee’s disability as cause for termination.
An employee who is terminated for cause because of intoxication or substance abuse, may have a case for wrongful dismissal, and may be able to bring a Human Rights Complaint against the employer. In such circumstances, that individual is well advised to seek legal counsel.