Q:I run a small ag-oriented business in a smaller centre. I have an employee who has been drinking, has been short on cash-outs and has mistreated some of my best customers. I want to fire her, but my lawyer is saying I may not be able to. What gives?
A:This depends on which province you are in, but pretty much everywhere in Canada, you are under the “duty to accommodate.” This is a legal duty imposed on numerous people and entities, including employers.
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It pertains to the legal duty of an employer to take measures to eliminate disadvantages to employees and customers. This duty is not limited to employers, but in the past couple of decades in Canada, it has had an impact on employers.
In the workplace, the employer must institute things to allow the employees to work to the best of their ability. The duty to accommodate presupposes that treating people with equality means recognizing that different people have different needs and respecting them is a legal obligation.
These needs are quite varied and include age, race, religion, gender, sexual orientation, cultural practices and health issues or disabilities.
A traditional one is accessibility for the disabled. If you have customers or an employee in a wheelchair, and there are five steps to get into your business, you are in breach of your duty to accommodate both your employees and customers. This is true even if you hired a person who was not disabled, and that employee subsequently ended up in a wheelchair. You, as an employer, are legally obliged to deal with this situation to ensure that employee can still work in your business.
Over the past number of years, the duty has steadily been expanded. More and more situations that previously fell within an employer’s discretion now fall within the scope of the duty to accommodate.
For example, assume your employee is a parent with young children. The spouse leaves and this employee becomes a single parent. You will likely will have to set up flexible schedules and working hours to allow this employee to provide adequate child care arrangements.
Similarly, religious practices are also the subject of this duty. An employee whose religion dictates that they must wear certain articles of clothing cannot be fired, or not hired, solely on that basis.
Your situation apparently involves an alcoholic employee. That is recognized as a form of illness, and you are under a legal duty to do your best to accommodate such an illness to ensure your employee gets help and can continue to work.
There are some exceptions, and this may be something that offers you relief. There is an undue hardship limitation. If taking on an alcoholic or ill employee in a business that has a limited number of staff means there will be hardship in running the business and on the other staff, you may be relieved of your duty to accommodate. It is no longer “reasonable” for you to do this.
As well, if the disability or ground of discrimination results in harm to the business (such as stealing from you), you may be allowed to fire the person. Also, if there are safety issues in the job and drunkenness affects the safety of that employee (or others), you may not have to comply.
The bottom line is, employers in Canada are legally required to make every reasonable effort to accommodate an employee who falls within recognized grounds of potential discrimination. You may not like it, but that’s the law.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
