The Alberta Court of King’s Bench has confirmed in Quong v. Lafarge Canada Inc., 2024 ABKB 340, that an employee’s “wilful refusal to abide by a policy critical to ensuring a safe workplace” constituted a repudiation of his employment agreement and upheld his termination for cause.
Background
At the time of termination, the employee was a site supervisor on a construction project where large machinery and other workplace hazards were present. His responsibilities included overall job site safety for workers and visitors and ensuring compliance with the employer’s safety policies.
Upon testing positive for THC in breach of the employer’s Drug and Alcohol Policy (the Policy), the employer informed the employee that he was required to undergo a substance abuse assessment and participate in the employer’s substance abuse program (SAP). Further, to return to work the employee would be required to sign a “Return to Work Last Chance Agreement” which obligated the employee to submit to random testing for a period of 24 months. The employee refused to engage in this process, citing that it was an unjustified invasion of his privacy and unreasonable in the circumstances. As a result, the employer terminated the employee’s employment and, in turn, the employee filed a wrongful dismissal lawsuit.
Despite the employee’s long tenure and otherwise exemplary record, the court upheld his termination for just cause for the following reasons:
- The Policy was reasonable, unambiguous, well published, and consistently enforced.
- The employee was informed of and understood the Policy. In particular:
- The employee testified that he was aware of and had read the Policy;
- The employee received annual training on the Policy; and
- The employee was responsible for training other workers on the Policy, including as part of the site orientation process.
- While the employee alleged that his use of cannabis was for medical reasons, he did not disclose his cannabis use to the employer prior to testing positive, nor was his use authorized by a health practitioner.
- The employee would not have been terminated but for his refusal to undergo a substance abuse assessment and participate in the SAP.
In addition, the court noted that while the employer had a duty to accommodate employees with disabilities, which includes substance use disorders, the employee’s refusal to undergo an assessment as part of the SAP prevented his employer from meeting its human rights law obligations.
Conclusion and takeaways
Employers have a legal obligation to maintain a safe workplace pursuant to occupational health and safety legislation and the Criminal Code. Employees similarly have legal and moral duties, to both their employer and fellow employees, to maintain a safe workplace. While these obligations need to be balanced with the employee’s right to privacy, the employee must cooperate with reasonable steps implemented by the employer to ensure the health and safety of the workplace. However, termination for just cause is a high bar to meet and the reasonableness of such a decision will be fact specific.
Recently, Dentons successfully represented a client facing a similar issue, where its employee breached the Drug and Alcohol Policy, refused to comply with reasonable directives and, upon not being returned to work, filed a complaint with the Alberta Human Rights Tribunal. For more information on that decision, please see our post: The Court of King’s Bench of Alberta provides guidance to employers on accommodation for substance abuse treatment.
If you have any questions about implementing and enforcing your policy in the workplace, or any other employment and labour questions, please reach out to Cristina Wendel and Jenny Wang or any member of Dentons’ Employment and Labour group.
