British Columbia (Public Service Agency) v. British Columbia Government and Service Employee’s Union – British Columbia Court of Appeal – September 18, 2008
An employer is permitted to terminate a disabled employee provided the employee’s disability played no part in the employer’s decision to terminate.
The September 18, 2008 decision of British Columbia (Public Service Agency) v. British Columbia Government and Service Employees’ Union [2008] B.C.J. No. 1760 (“British Columbia”) by the British Columbia Court of Appeal provides insight on an employer’s ability to terminate an employee who suffers from a disability. Specifically, an employer is able to terminate a disabled employee as long as the employee’s disability played no part in the employer’s decision to terminate.
In British Columbia the employer confronted the employee with allegations that the employee committed a theft in the workplace. The employee admitted to the theft after he was assured by the employer that there would be no criminal charges laid. At the same time as admitting to the theft, the employee informed the employer for the first time that he was an alcoholic. The employer terminated the employee due to the theft he committed. In response to his termination, the employee filed a claim of discrimination on the basis of disability – specifically, that the theft he committed was due to his disability of alcohol dependency.
The arbitrator concluded that “the employee’s termination for theft was prima facie discriminatory because a disability (alcohol dependency) was a factor in that theft.” On appeal, the Court disagreed with the arbitrator’s decision. The Court stated “I can find no suggestion that [the employee’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…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.” As a result, the Court remitted the matter to the arbitrator “so that he can complete his determination under section 89 of the Labour Relations Code of whether [the employee’s] dismissal was excessive in all of the circumstances.”
This decision demonstrates that it may be possible for an employer to terminate an employee who suffers from a disability without such an action being discriminatory. Although an employee may be disabled, their disability does not bar an employer from being able to terminate that employee as long as the employee’s disability played no part in the employer’s decision to terminate. However, if the employee’s disability was a factor in the decision to terminate the employee, then the employer will have discriminated against the employee. Both employers and employees should be mindful of this decision in order to be able to recognize whether or not a termination is discriminative.