Can an employer dismiss an employee who is caught smoking
marijuana at work? Does it matter whether the employee smokes marijuana
while working, while on a break, or before or after work?
What factors would a decision-maker take into consideration to
determine whether dismissal is appropriate or whether some form of
lesser discipline should be imposed?
the answers to these questions may seem straightforward, each decision
is based on the particular facts of the case, the nature of the
workplace and the circumstances of the employee.
They also admitted to their employer
that they had smoked a joint prior to their shift but maintained that
they had not smoked on campus. Upon investigation, the employer
concluded they were not telling the truth and dismissed both of them.
employees had substantial service with the university (about 17 years
each at the time of their discharge) and a clean discipline record.
However, the employer relied on the following:
• their possession and consumption of an illegal substance on campus
• the safety-sensitive nature of their position
• their access to locked area of campus
• their proximity to students
• the fact that they were dishonest when confronted about smoking on campus
• the employer’s loss of the trust necessary in light of the unsupervised nature of their position.
union grieved and argued that discipline, if any, should have been
progressive, and sought reinstatement with full compensation.
was no dispute that both employees had engaged in inappropriate
conduct. The issue was whether the arbitrator should substitute a lesser
form of penalty than discharge.
Arbitrator Eli Gedalof analyzed the matter by first recognizing that each decision is fact-specific. The arbitrator then noted:
“What arbitrators have consistently found, though, is that the absence
of candour by the grievor when confronted with respect to her or his
drug use is a significant aggravating factor, since it undermines the
trust relationship between employer and employee, and gives rise to a
concern with respect to the employee’s rehabilitative capacity. The
undermining of this trust becomes more significant where the position is
either highly safety sensitive, or unsupervised.”
order to highlight “the fact-specific nature of the inquiry, and the
manner in which the specific nature of the workplace and the grievor’s
circumstances inform the exercise of remedial discretion”, the
arbitrator referred to another decision: Re Great Atlantic and Pacific Co. of Canada, Ltd. and UFCW, Loal 175 & 663.
In that decision, arbitrator
Randall had found strong mitigating factors which warranted giving the
grievor a second chance, including the fact that the job was not
particularly safety-sensitive, the grievor was a long-term employee, had
a clean record, was a good performer, and was a forthcoming and
In addition, there was expert medical evidence that linked his
use of marijuana to post-traumatic stress disorder for which he had
sought extensive and ongoing treatment post-termination.
arbitrator thus substituted a two-month penalty with the remaining
period off work to be characterized as a medical leave of absence,
allowing the grievor to access his benefits, and the grievor was to
remain off work until his doctors certified that he was fit to return.
the University of Windsor matter, the arbitrator found that he could
not give any significant weight to the grievors’ post-discharge
participation in drug treatment programs since there was no medical
evidence to support the conclusion that they suffered from an addiction,
that their misconduct was causally related to that addiction, or that
either grievor had addressed effectively such an addiction through
However, the arbitrator found the following to be strong mitigating factors:
• both grievors had substantial service
• neither had a significant history of discipline
• they both appeared to have been good performers
• the janitorial position could not be characterized as highly safety-sensitive.
“absent any significant aggravating factors, even in the absence of an
underlying disability, these factors point strongly toward providing the
grievors with a second chance and substituting a lesser penalty.”
But the arbitrator found the following to be significant aggravating factors:
• the janitorial position was effectively unsupervised and thus required a significant degree of trust
grievors were not candid, tried to mislead the employer, and rejected
several opportunities throughout the discipline process and the hearing
to be truthful with their employer.
the arbitrator found that the grievors conducted themselves in a manner
that “fundamentally undermined the trust relationship necessary for the
maintenance of the employment relationship.” As a result, the
arbitrator dismissed the grievances, held that the employer had just
cause for dismissal, and found that it would not be appropriate to
substitute a lesser penalty.
While dismissal was
upheld in this case, employers should be cautious when imposing
discipline even when there appears to be gross misconduct. The
arbitrator was very clear in highlighting the fact-specific nature of
the inquiry, and the manner in which the specific nature of the
workplace and the grievor’s circumstances inform the exercise of
There are no absolute rules
regarding when just cause will be found; even smoking marijuana while at
work will not always be found to warrant summary dismissal. The context
is key. Employers should address these issues in a
proactive manner by assessing all relevant factors before deciding to
dismiss for cause and should seek legal advice to help avoid unnecessary
and significant liability.
marijuana and impairment at work will become even more significant
issues to be addressed as we move toward legalization of recreational
usage. Employers should ensure that they have well-worded policies in
place to address these issues.
Nadia Zaman is an associate at Rudner Law in Toronto.