Employee claimed chronic pain condition was a disability for which he smoked marijuana, but employer wasn't aware of condition
A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift.
The bartender also served as assistant manager of the restaurant. The employer had a policy that prohibited consumption of drugs or alcohol while on shift. The policy was meant to ensure that employees — including bartenders, who monitored customers’ consumption of alcohol — did not themselves become intoxicated.
The bartender’s job was described, in the decision, as "serving alcohol to customers, monitoring their consumption of alcohol, their demeanor and their conduct to ensure that the employer abides by its legal obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations,the Occupiers’ Liability Act, and its common law duty of care to ensure that its employees and customers do not create harm to themselves or others."
After being caught smoking marijuana, the employee claimed that he used it for a "chronic pain condition." He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his "disability."
The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability. Therefore, the employee had not proven that there was a connection between his disability and his termination. As such, his human rights complaint was dismissed.
For more information see:
• Burton v. Tugboat Annie’s Pub, 2016 CarswellBC 1791 (B.C. Human Rights Trib.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
