What to do if an employee shows up drunk at the worksite

If a worker shows up drunk at the worksite, what should an employer do?

Stuart Rudner
Question: If a worker shows up drunk at the worksite, what should an employer do?

Answer: Short-term answer: Don’t let him go to work. Send him home in a cab if need be.

Long-term answer: Clearly, attending at work is an offence that should be subject to discipline. Being intoxicated while at work is a serious offence and a breach of the employee’s obligations pursuant to his contract of employment. An employee is supposed to be fit to perform his duties when he is at work; if intoxicated, he is not. In addition, an intoxicated employee is more likely to be a disruptive force in the workplace.

Before considering disciplinary action, however, the employer should ensure the employee is truly intoxicated. Merely exhibiting signs of having consumed alcohol is not a breach of the employment contract unless the contract states otherwise.

The other issue to address before considering the imposition of discipline is whether there is a human rights issue. If the employee in question takes the position the intoxication was due to an addiction, or if there are other circumstances that suggest the existence of an addiction, regard must be had to the application human rights legislation. Addiction to alcohol is generally considered to be a disability and the employee will be entitled to accommodation.

Assuming the employee was truly intoxicated, and that addiction is not a factor, the employer should then proceed to consider what the appropriate form of discipline will be. If the employee is unionized, then reference should be made to the applicable collective agreement. Otherwise the applicable agreement, and the common law, will govern.

Termination for cause may be an option. Like any situation where just cause is considered, one must take a contextual approach, considering all relevant factors of the situation and the employment relationship. The length of the relationship and the employee’s disciplinary history must be considered. Another important factor in the intoxication context is the type of position held by the employee. If it is safety-sensitive, and the employee’s intoxication might pose a safety risk to him, his co-workers or the public, the offence will be viewed more seriously.

Other factors courts will consider in determining the degree of discipline necessary include the potential damage to the reputation or interests of the employer and any acceptance or condonation of this type of behaviour on the part of the employer.

If the circumstances do not justify termination for cause, then a warning should be given. If the company has a disciplinary program in place, it should be followed. If the employment agreement allows for suspension, either explicitly or by implication, then an unpaid suspension might be appropriate. Whatever the penalty that is ultimately meted out, the employer should make it clear that further instances of such behaviour can result in termination of the employment relationship.

The bottom line: Like any disciplinary decision, this is one where the employer should proceed with caution. It is important to protect the company’s interests but it is also important to avoid trampling the rights of the employee and, as a result, creating exposure to a subsequent claim.

Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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