Bartender, fired for smoking marijuana at work, loses human rights complaint

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift.

The bartender also served as assistant manager of the restaurant.  The employer had a policy that prohibited consumption of drugs or alcohol while on shift.  The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated.

The bartender’s job was described, in the decision, as “serving alcohol to customers, monitoring their consumption of alcohol, their demeanor and their conduct to ensure that the employer abides by its legal obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations, the Occupiers’ Liability Act, and its common law duty of care to ensure that its employees and customers do not create harm to themselves or others.”

After being caught smoking marijuana, the employee claimed that he used it for a a”chronic pain condition”.  He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”.

The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability.  Therefore, the employee had not proven that there was a connection between his disability and his termination.  As such, his human rights complaint was dismissed.

Burton v. Tugboat Annie’s Pub and others, 2016 BCHRT 78 (CanLII)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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