Can You Get Fired for Vaping in the Warehouse?

Just cause is a high standard. If an employer terminates an employee for just cause, the employee loses their right to notice or payment in lieu of notice. For this reason, British Columbia legislation and the common law have established clear and onerous requirements that must be met before an employee can be let go without any notice of pay.

In a recent Ontario case, 2020 ONSC 5512, an employee brought an action against his employer for firing him for cause for vaping on the premises in contravention of the employer’s no smoking policy. The employee argued that his actions were not sufficient to trigger a just cause termination.

Background Facts: The employee worked in the warehouse of the food production company for 4 years. During his employment, he received a number of written warnings for lateness, but never for smoking on the premises. The employee had reviewed, agreed to and acknowledged several workplace policies, one of which explicitly prohibited smoking inside the warehouse where the employee worked. There were a number of outdoor areas where employees were permitted to smoke. The employee maintained that he was not aware that using vaping products was considered a violation of the no-smoking policy.

Circumstances of the Incident: A colleague observed the employee vaping inside the warehouse and reported him to management. The colleague also reported seeing the employee vape indoors on other occasions and named two other employees who had been observed vaping with the employee previously. Management reviewed the surveillance video of the day in January and confirmed the report that the employee had been vaping inside.

Management did not seek out video of the other two employees, as the reporting employee could not provide specific dates. The two other employees were given warnings, however, the employee in question was treated differently.

At a meeting with the employee, he admitted to vaping inside and was presented with a letter of termination. The employee claimed he did not realize vaping was considered a restricted form of smoking akin to cigarettes but was too shocked at the meeting to defend his position.

WHAT DID THE COURT DECIDE ?

The court analyzed the employees conduct through the following lens:

• what was the nature and extent of the misconduct?
• what were the surrounding circumstances of the misconduct?
• was the dismissal warranted – was it a proportional response?

The court found that the employee had not sufficiently indicated that vaping was a prohibited activity under the no-smoking policy. Vaping was not specifically referred to in the policy or the signage.

Further, the court found that while the employees actions may have constituted a risk of harm, the proportionate response was not a just cause termination. The employees actions were not deceitful or intentional and ultimately, the Court found that the employee should have been provided with an opportunity to learn from the experience and change his behaviour, prior to termination.

The employer failed to establish that the employees actions were “flagrant, wilful or intentionally deceitful”.

Does the above sound similar? Have you been terminated for just cause for something you did that was not “flagrant, wilful, or intentionally deceitful”?

If you have been terminated for cause or subject to disciplinary action at work and you believe your rights have been violated, contact Zoe Arghandewal. We can guide you through the issues, help you understand your rights, and defend your legal position.