December 23, 2019 – By Azadeh Taghizadeh, Lawrence Smith and Daniel Sorensen

It’s that time of the year to enjoy a few drinks and treats at work Christmas party! But can your conduct at such parties put you on the naughty list and get you terminated?

Lets start with what is considered to be just cause for termination. In the recent case of Smith v. Pacific Coast Terminals Co., 2016 BCSC 1876, the British Columbia Supreme Court provided an overview of the law on just cause for dismissal:

53      The basic test for just cause for dismissal appears in the Court of Appeal judgment in Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168, [2014] B.C.J. No. 776 (B.C. C.A.), at para. 17:

. . . the test for cause for dismissal: it is “behaviour that, viewed in all the circumstances, is seriously incompatible with the employee’s duties, conduct which goes to the root of the contract and fundamentally strikes at the employment relationship”: Panton v. Everywoman’s Health Centre Society (1988), 2000 BCCA 621 at para. 28.

54      In considering the allegations of cause it is important to bear in mind that the burden of proof is on the employer to prove cause on a balance of probabilities: Staley v. Squirrel Systems of Canada Ltd., 2013 BCCA 201 (B.C. C.A.) at para. 19:

It is common ground there is a heavy onus on the employer to show cause for dismissal. In Leung v. Doppler Industries Inc. (1995), 10 C.C.E.L. (2d) 147 (B.C.S.C.), aff’d (1997), 86 B.C.A.C. 137, Saunders J. (as she then was) said:

[26] Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide a second chance.

[27] The onus is upon the defendant to prove cause . . .

In determining whether an employee was validly terminated for just cause, the court will look at whether the employee’s behavior was such that the employment relationship could no longer continue. In light of the contextual approach endorsed by the Supreme Court of Canada in McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38, this means that whether a specific act or series of acts of misconduct would rise to the requisite threshold, depends upon the employee’s position, the nature of the employment relationship, and what it requires. Thus, what may amount to a relatively minor transgression in some cases may constitute just cause for dismissal in others.

Next, can intoxication be enough for termination? A court will generally consider the following criteria to determine whether an employer is justified in dismissing an intoxicated employee[1]:

  1. The potential for physical injury to the intoxicated employee and others;
  2. The injury, or potential injury, to the employer’s interest or reputation caused by the employee during his period of intoxication;
  3. The length and quality of the past service provided by the employee;
  4. Any circumstances personal to the employee which may have given rise to the inappropriate conduct; and
  5. The extent to which intoxication was accepted or condoned by the employer, particularly in those cases in which alcohol and entertaining are a normal part of the working day.

In determining whether just cause for dismissal exists the employer must weigh the actual or potential prejudice it has suffered against any mitigating circumstances which the employee may be able to prove in court.

It may be that an employee who is intoxicated after having a few drinks during an annual event may not get you terminated, as long as the employee is not intoxicated during their regular work duties, and it does not affect his or her abilities to perform their job functions.

However, this is not the same as an employee being intoxicated during regular work hours, and where warnings have been provided by their employer about their continual intoxication. In these circumstances, it is not enough for an employer to warn the employee to drink less or not at all, but instead, the employer must explicitly express that the employee will be discharged or terminated if they do not stop drinking.

If you are experiencing issues related to intoxication at the workplace, it is always best to obtain legal advice before acting. Contact us today to set up a consultation.

[1] Honorable Justice Sprout’s Wrongful Dismissal Handbook, (2015) 7th Ed. Thomson Reuters Canada Ltd at 4-94 to 4-95.