In the recent case of Lenting v Huron Tire, the Ontario Superior Court of Justice was called upon to decide whether an employee was discriminated against on the basis of his drug addiction, in contravention of the Ontario Human Rights Code (Code). The employee claimed that he was wrongfully dismissed, while the employer argued that it was entitled to terminate the employee for cause, for reasons unrelated to his addiction.
Plaintiff was treated for drug addiction and returned to work
The 22-year-old plaintiff worked for the defendant’s employer for two years as a tire technician. During the course of his employment, he developed a drug addiction. The defendant testified that the plaintiff exhibited strange behaviour and he received a warning letter for insubordination.
He attended a rehabilitation program and notified the defendant that he had completed the residential part of the program, but that outpatient aftercare sessions would be required. The defendant agreed to rescind previous warnings. It also provided information about its employee assistance program and a copy of its substance abuse policy. The plaintiff returned to work.
Plaintiff was terminated following workplace incidents
The plaintiff’s father attended the workplace and told a member of staff that he had found drugs in the plaintiff’s coat pocket and that he had kicked him out of the house. The plaintiff was searched but no drugs were found. The plaintiff received some verbal warnings, including for missing a shift and allegedly harassing a female co-worker.
He was terminated following an altercation between two other co-workers. The defendant took the position that he failed to assist in the investigation of this altercation by not providing a witness statement, thereby demonstrating insubordination. He crumpled up his statement and tossed it in the trash.
The defendant believed there was just cause to terminate the plaintiff, but instead proceeded with a without cause termination and paid the plaintiff two weeks in lieu of notice. The plaintiff commenced a claim for wrongful dismissal, arguing that the defendant breached the Code.
Did the defendant violate the provisions of the Ontario Human Rights Code?
The plaintiff argued that he was discriminated against for having an addiction.
Justice George explained that drug addiction is a disability for the purposes of the Code, but that an employee can be terminated so long as there is no nexus between their disability and the termination. His Honour found that the defendant accommodated the plaintiff by allowing him to pursue treatment while maintaining his employment.
His Honour was critical of the plaintiff’s failure to disclose his addiction to the defendant in a timely way, noting that an employee seeking accommodation does not have “a licence…to behave as he pleased” and “is responsible for requesting accommodation and must facilitate the search for accommodation”. The defendant understood addiction and the personal toll it can take, agreeing to rescind previous warnings. It allowed the plaintiff to pursue rehabilitation and was understanding of his predicament. This was in stark contrast with the plaintiff’s unwillingness to assist in the accommodation process. His Honour found that the plaintiff engaged in blatant insubordination by missing work when leave was not granted and that he admitted engaging in harassing behaviour.
Justice George said:
The Defendant provided information about its Employee Assistance Program, and a copy of its Substance Abuse Policy; it promised that he would not be terminated because of his addiction and would have his job when done treatment; it agreed to speak with and coordinate matters with his father (which the Defendant did until the Plaintiff revoked his consent); and committed to not rely on the warnings issued before disclosure. This is exactly what the right to accommodate contemplates. There is absolutely nothing else it could have done to accommodate the Plaintiff.
The plaintiff’s disability was not a factor in the decision to terminate the plaintiff
His Honour held that the plaintiff’s disability was not a factor in the decision to terminate the plaintiff. The defendant “supported and wanted the plaintiff to succeed”. The final incident was not “an excuse [the defendant] needed to rid itself of the plaintiff once and for all”, but needed to be viewed in the context of prior incidents. Tossing the statement in the trash was “the height of childish behaviour and a display of utter disrespect” and makes clear that the event, together with the preceding incidents, had nothing to do with the plaintiff’s addiction.
Justice George concluded that the defendant did not violate the Code.
Was the plaintiff terminated without just cause?
The plaintiff claimed that he was wrongfully dismissed and that 2.5 months of notice would be reasonable. The defendant argued that it had just cause to terminate the plaintiff but chose not to. It considered two weeks’ notice as required by the Employment Standards Act sufficient, or in the alternative, that common law entitlement to notice should be limited to 1 to 1.5 months and then clawed back to nothing because of a failure to mitigate.
The plaintiff was entitled to additional notice under the common law
Justice George said that “an employer’s stated grounds for termination must crystallize at the time of termination”. His Honour said that the final incident would not have warranted a dismissal for cause and that the plaintiff was entitled to more than the minimum two weeks’ notice period. His Honour sided with the plaintiff, finding based on the plaintiff’s age, length of employment, and nature of his duties, reasonable notice would typically be anywhere from 2 to 3 months.
A plaintiff, in every case, has a duty to mitigate against losses suffered. In an employment context, this means that the terminated employee must make reasonable efforts to find a new job. Justice George held that the defendant had not established the availability of similar employment opportunities having regard to the plaintiff’s experience, training and qualifications. Furthermore, the plaintiff enrolled in school which was an acceptable mitigation approach.
Contact Haynes Law Firm in Toronto for Advice on Discrimination
Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. The team at Haynes Law Firm helps employees who have experienced discrimination in the workplace ensure employers are held liable. We also work with employers to identify and implement accommodations for employees and mitigate legal and financial exposure. Contact us online or call us at 416.593.2731.