Arbitrator Upholds Discharge Of Employee With Tobacco Addiction For Smoking At Work

• Published date: 16 February 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: Roper Greyell LLP ' Employment and Labour Lawyers
• Author: Mr James Kondopulos and Gabrielle Berron-Styan (Articling Student)

Previously printed in the LexisNexis Labour Notes Newsletter.

In a recent B.C. case, West Fraser Mills Ltd. v. Northern Interior Woodworkers' Assn. (Souter Grievance), [2020] B.C.C.A.A.A. No. 85 (Glass), an arbitrator upheld the discharge of an employee with a severe tobacco use disorder for smoking on site contrary to the employer's policies.

Facts

The grievor was a machine operator at the employer's lumber mill in Smithers, British Columbia. He was a long-service employee who commenced work at the mill in 1979 when he was 19 years old. The grievor's weight and related joint problems became such in 2012 that he suffered from limited mobility. The employer accommodated him by offering him an operator position where he did not have to walk or stand for long periods of time.

The grievor was caught smoking inside his operator booth while on shift on June 26, 2019. He denied that he had been smoking when he was confronted. He had, incidentally, been caught smoking in the same booth one year earlier and had received a five-day suspension and final warning for breaching the company's smoking and safety policies at the time.

The employer conducted an investigation and discharged the grievor from employment two days later. The union responded by filing a grievance alleging that termination of his employment was both excessive and discriminatory. It argued that the grievor had a severe nicotine addiction and his disability was a factor in the termination of employment. This, the union said, was in contravention of section 13 of the B.C. Human Rights Code (the "Code"). It also argued that there had been no attempt to accommodate the grievor's tobacco use disorder in spite of the fact that the disorder had caused an employment problem for the grievor when combined with his increased physical disability, which prevented him from accessing the designated smoking areas at the mill.

The employer stated its reasons for discharge included the grievor's repeated smoking on shift, which was a serious safety violation and contrary to the employer's policies. It also highlighted the grievor's dishonesty in the investigation of the matter. The decision to discharge the grievor, the employer argued, was not related in any way to the grievor's disability. With respect to accommodation, the employer said that the grievor did not inform the company of his disability, which made accommodation efforts impossible.

Arbitrator's Decision

In upholding the grievor's discharge from...