Bartender Claims his Termination for Smoking Marijuana at Work was Discriminatory

September 2016

Article by: Danielle Scorda

Darin Burton alleged that his employer, Tugboat Annie’s Pub (the “Employer”), discriminated against him on the ground of physical disability when he was discharged for smoking marijuana at the workplace. Burton claimed that the Employer had been aware since the outset of his employment that he used medical marijuana to deal with chronic pain from degenerative disk disease.  The Employer denied that it had any knowledge of either his disability or that his marijuana use was related to any medical condition.

The Facts

Burton was employed by the Employer as an assistant manager and bartender from April of 2012 until his termination on January 9, 2015. His job duties included serving alcohol to customers and monitoring customer alcohol consumption and conduct to ensure the Employer abided by its common law and statutory obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations, and the Occupier’s Liability Act.

The Employer had a written workplace policy that clearly stated employees must not consume, or be under the influence of, drugs or alcohol while working. The policy stated that a failure to comply would result in immediate dismissal.  Burton acknowledged he was familiar with the policy.

Burton was caught smoking marijuana on shift on January 8, 2015 and was terminated the next day.

Following his dismissal, Burton filed a human rights complaint alleging that his termination was discriminatory, as he used medical marijuana to deal with chronic pain from degenerative disc disease. Burton submitted that the Employer was aware of both his use of marijuana and of his diagnosis of degenerative disc disease from the beginning of his employment in April of 2012.

The Employer stated its reasons for termination included his smoking marijuana on shift, as well as other culminating workplace issues including Burton’s poor work performance and attitude. The Employer said that Burton had never advised that his marijuana use was related to degenerative disc disease or other physical disability, and the Employer was not aware of Burton’s physical disability until after his termination.

Tribunal Decision

The Employer applied to dismiss the complaint under s. 27(1)(c) of the BC Human Rights Code on the basis that it had no reasonable prospect of success.

On the evidence submitted, the Tribunal concluded that Burton had failed to make any link between his physical disability and his termination, and dismissed his complaint. The Tribunal accepted that while the Employer was aware Burton smoked marijuana outside of work for recreational purposes, it was not aware of Burton’s physical disability during his employment. The Tribunal stated that an employer must be aware of an employee’s disability, or ought reasonably to be aware, before the duty to accommodate will be triggered.

In this case, the Tribunal noted there was no evidence that the Employer was aware that Burton’s marijuana consumption was related to his physical disability.  The only documentary evidence Burton provided the Tribunal was a diagnosis for degenerative disc disease, which was made following his termination. Hence, Burton was unable to establish the required nexus between his disability and his termination, and his complaint was dismissed.

Advice for Employers

This case reiterates the obligations that employees have in the accommodation process. As the Supreme Court of Canada has recognized, accommodation is a multi-party process and employees have an obligation to co-operate in the accommodation process.  This includes being forthcoming with medical information when seeking accommodation in the workplace.  There is no duty to accommodate a disability that the employer did not know about – and could not have reasonably known about – until after an employee is dismissed.

Moreover, this case serves as a reminder that as the use of medical marijuana continues to increase across Canada, employers must be aware of the duty to accommodate disabled employees who have been prescribed medical marijuana. Accommodations will involve navigating the challenges of fulfilling human rights obligations, while also ensuring a safe workplace.  Employers may also need to revisit their workplace drug and alcohol policies to ensure they are broad enough to encompass marijuana use and possible impairment at the workplace.