Imagine it is 2018, weed is still illegal, and you are afraid of placing your own order. Your subordinate – who is also your friend – is placing an order for weed and you ask them to place an order for you as well.
While you are in a work meeting with two colleagues, your friend/coworker casually drops by to deliver your package.
Inevitably, your employer finds out and you both get fired. Does your employer have just cause to dismiss you?
Believe it or not, this scenario played out in an actual case: Gaucher v Manitoba Public Insurance. The manager was an employee of the organization for 18 years and suffered from colitis. She asked her direct report and friend, who was a team leader at the organization, to buy cannabis edibles for her, as he was placing an order for himself and she was scared of placing her own order. Since she did not have a medical authorization permitting the possession and use of cannabis, it was illegal to do so.
Three months later, her direct report placed an order for her again, and this time, his subordinate was also involved; the manager was aware of this.
What she did not know is that others would find out.
Her direct report delivered the weed package to her while she was at a work meeting with other managers. Another employee complained to the human resources department and the organization conducted an investigation. Shortly thereafter, the manager was dismissed for cause. She pursued a claim alleging wrongful dismissal.
After engaging in a contextual analysis, the Court found that although her employment record (18+ years of service, lack of disciplinary history, numerous promotions and good performance) weighed against dismissal, the employer had just cause to dismiss her for the following reasons:
- She committed a serious breach of the employer’s policies, involving a subordinate in these breaches. In particular, the employer’s Criminal Misconduct Policy noted: “If an employee admits to, or is convicted of criminal misconduct while on duty, or otherwise involving the Corporation or another employee, he/she will be subject to disciplinary action which may include dismissal”. The employer’s policy regarding cannabis was clear: its possession and use in the workplace is strictly prohibited unless there is a medical authorization. The employer also had a policy noting its expectations from managers: even off duty, managers should demonstrate a high level of personal integrity in their conduct. Here, the manager failed to demonstrate good judgment, and involving a subordinate “particularly aggravated the situation”.
- The manager engaged in this conduct twice, about three months apart, while knowing it was illegal, which undermined her mitigation arguments about this being a mistake. She also did not come forward and admit her actions, although she knew the employer was questioning her direct report.
- Her medical condition was given little weight because she could have sought a medical authorization from her doctor.
- Deterrence was also a factor, since another employee had brought this to the employer’s attention and other employees knew what had happened.
On the whole, the manager’s misconduct “violated essential and fundamental terms of her employment contract” and “breached the trust and faith inherent in the employment relationship”.
Takeaways
Weed is now legal and this case may have been decided differently if the events had occurred after the legalization. However, and this should go without saying, employees should not ask their coworkers to buy drugs for them or do anything else that is unlawful, particularly while they are at work, no matter how close they are. They should also refrain from searching online for illegal products using their work phones/computers, or bringing any illegal products to work.
Employees should be mindful of the policies in the workplace and ensure they are not engaging in acts that would violate such policies. Employees, especially those in leadership or managerial roles, should be mindful of how their actions would affect their subordinates, other employees and the organization as a whole.
Employers should note that the threshold for just cause for dismissal is high, but as Stuart Rudner, author of ‘You’re Fired! Just Cause for Dismissal in Canada’ says: just cause is not a lost cause. Conducting an investigation before dismissal is a critical step. Employers should also ensure they have carefully drafted policies in the workplace to protect the organization. The employees should be trained on the policies, the policies should be applied consistently, and violators should be disciplined as appropriate.
If you are an employee concerned about your rights and obligations, feel free to contact us. Similarly, if you are an employer looking to maximize your rights and minimize your liabilities, we can assist you as well.
