A recent Ontario Superior Court of Justice (“ONSC”) decision reinforces that employers may be able to rely on well-drafted and consistently enforced workplace policies to justify termination for cause, particularly in safety-sensitive workplaces.

In McCarthy v Bison Transport Inc. [McCarthy], the ONSC dismissed a wrongful dismissal claim brought by a long-haul truck driver who was terminated after failing a second random drug test. The Court found that the employer’s drug and alcohol policy was reasonable, that the employee was aware of the policy and its consequences, and that termination for cause was justified in the circumstances.

Background

The employee worked as a long-haul truck driver for the employer. As part of thher terms of his employment, the employee was subject to the employer’s Drug and Alcohol Policy, which permitted random drug testing and formed part of the employer’s broader workplace safety requirements.

In 2014, the employee failed a random drug test after testing positive for cannabis. Rather than terminating the employee’s employment, the employer suspended him and required that he participate in a return-to-work program. Following the completion of the program, the employee was assessed and cleared to return to work.

Approximately three years later, in 2017, the employee failed a second random drug test. Consistent with its practices, the employer discussed the positive test result with the employee to determine whether there was an addiction, dependency, or other circumstance that could require accommodation. The employee advised that the cannabis use was an isolated incident and did not disclose any addiction or dependency concerns.

The employer subsequently terminated the employee’s employment for cause, which led to the employee commencing an action for wrongful dismissal. The employee sought damages for wrongful termination, aggravated and punitive damages, and unpaid overtime while employed.

Decision

The Court dismissed the claim in its entirety. The Court noted that when an employer seeks to justify termination based on a breach of a workplace policy, it must generally establish that:

• the policy was known to the employee;
• the policy was consistently enforced; and
• the disciplinary consequences were proportionate to the nature of the breach.

The Court found that these requirements were satisfied. The employee had received training on the policy, acknowledged its requirements, and had previously been disciplined under the policy following his first positive drug test. The Court further found that the policy had been consistently enforced by the employer.

Importantly, the Court recognized the safety-sensitive nature of the employee’s role as a long-haul truck driver operating commercial vehicles. In these circumstances, the Court concluded that the employer’s decision to terminate the employee for cause was consistent with its policy and that the policy itself was reasonable given the nature of the employee’s duties.

The Court further found that the employer took steps to determine whether the employee suffered from an addiction or dependency before making its termination decision. The employee advised that the cannabis use was recreational and isolated and did not indicate that he suffered from any substance-use disorder. Based on that evidence, the Court concluded that there was no addiction or dependency issue requiring accommodation. As a result, the termination arose from a policy breach rather than disability-related conduct.

The Court rejected the employee’s claims for aggravated and punitive damages and found that the employer acted reasonably and responsibly throughout the process. The employer’s actions were motivated by legitimate public safety concerns and there was no evidence of deliberate misconduct, bad faith, or other reprehensible conduct.

With respect to the employee’s overtime claims, the Court held the employee failed to provide meaningful evidence establishing his remaining overtime claim. His calculations were primarily based on mileage records and were not considered a reliable method of determining actual overtime hours worked. The Court ultimately concluded that the evidence did not support the employee’s claim for unpaid overtime damages.

Takeaways for Employers

Clear and Consistently Enforced Policies Can Support Just Cause

McCarthy demonstrates that workplace policies can be relied upon to justify termination for cause, particularly in safety sensitive environments. Employers seeking to rely on workplace policies should ensure that the policies are clearly drafted, communicated to employees, and consistently enforced.

Employers Should Still Fulfill Their Duty to Inquire

Where employers are looking to implement decisions based on contraventions of drug and alcohol policies, it is important to remember that employers still have a duty to accommodate. As part of that duty, employers have a duty to inquire into whether the employee has an addiction or dependency that could trigger accommodation obligations.

Acting In Good Faith Throughout the Termination Process Remains Important An employer’s conduct throughout the termination process remains key for defending against any bad faith and aggravated/punitive damage claims. The Court in McCarthy notedthat even if the employee had been wrongfully dismissed, the employer’s reasonable conduct throughout the termination process would not support a claim for aggravated or punitive damages.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.