Causal connection required for termination to constitute discrimination

November 3rd, 2015 by

By Michelle Stephenson

In Unifor Local 199 v. Complex Services Inc., an employee’s union grieved his dismissal on the basis that the theft precipitating it was due to his addiction to narcotics.

The employee, Mr. Hennessy, had been employed as a security guard at a casino for approximately 10 years. In April 2014 he stole $60 from a wallet in the casino’s lost and found, and changed the amount of money recorded in the log book to cover it up. When the theft was discovered by his employer, he was dismissed pursuant to the collective agreement which specified dismissal as the penalty for theft.

The Union grieved the dismissal, leading evidence that Mr. Hennessy had suffered from narcotics addiction intermittently over the last several years, and had relapsed the day before the theft, allegedly stealing the $60 to pay for cocaine. For these reasons, it argued that the employer had discriminated against him on the prohibited ground of disability, contrary to the Human Rights Code.

The problem with the Union’s evidence, however, was that no medical evidence was presented suggesting that Mr. Hennessy was suffering from his addiction at the time of the theft, nor that the theft had anything to do with this addiction. The only evidence to this effect, was that given by Mr. Hennessy himself, which was lacking in credibility.

The Court emphasized that the specified penalty for theft being dismissal in the collective agreement is not sufficient to shield an employer from the protections required by the Code, but the onus is on the employee to establish the presence of a disability and a causal connection between that disability and their misconduct.

The fact that Mr. Hennessy had been free from substance abuse for a significant period of time until the day before the theft, and that there was no medical evidence as to his state at the time of the theft or its connection to drug addiction, led the Court to find that the theft was more likely related to his general financial difficulties at the time.

As a result, no causal connection was established between the theft and any addiction suffered by Mr. Hennessy, and the grievance was dismissed.

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