Vaping at Work Not Sufficient Cause for Termination: Court

Written on behalf of Peter McSherry

Terminating an employee for cause is the only way for an employer to be relieved of its obligation to provide the employee with reasonable notice, or pay in lieu. Employees who suddenly find themselves without a steady source of income rely on these payments (in addition to severance pay in some cases) to bridge the gap between termination and finding reasonable employment elsewhere.

Without the laws setting out what can be considered justifiable reasons to terminate with cause, many employers would attempt to escape their compensation obligations by using small indiscretions as a reason to let an employee go without pay. For this reason, Ontario employment legislation and the common law have established clear and onerous requirements that must be met before an employee can be let go without pay.

Employee Terminated for Vaping In Warehouse

In a recent Ontario case, an employee brought an action against his former employer for letting him go ‘for cause’ after an incident in which he was found to be ‘vaping’ on the premises in contravention of the employer’s no smoking policy. The employee brought an action claiming that his behaviour had not been sufficient to trigger termination for cause.

The employee had been working at a warehouse for his employer, a food production company, for four years. In his time with the company, the employee had 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. However, the employee maintained that he was not aware that using vaping products was considered a violation of the no-smoking policy.

One day in January 2019, 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 to 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.

Vaping Was Not Explicitly Prohibited; Employee Not Provided with Opportunity to Correct Behaviour

The court analyzed the situation in light of the established test for wrongful conduct justifying termination, which has been previously established at the common law as follows:

1. Determine the nature and extent of the misconduct;
2. Consider the surrounding circumstances; and
3. Decide whether dismissal is warranted (i.e. whether dismissal is a proportional response).

The Court found that the employer had not sufficiently indicated that vaping was a prohibited activity under the no-smoking policy. There was no mention of vaping in any of the policies or signage presented to employees. Further, while it would normally be sufficient to establish that the employee’s actions had constituted a risk of harm (as opposed to demonstrating actual harm), the proportionality of the situation in question was insufficient to justify termination.

The Court held that while the actions violated Ontario smoking legislation and workplace policies, the employee’s actions were not deceitful or intentional. 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 employee’s] dismissal was said to be justified on the basis that he was flagrantly violating company policies by vaping inside, but having failed to establish that his conduct was flagrant, wilful or intentionally deceitful, I find that his termination was not proportionate even though vaping was prohibited by the Smoke Free Ontario Act, 2017 at the time.

This case clearly demonstrates an employer’s obligation to give employees an opportunity to correct misbehaviour, especially in cases where they may not be aware they were in violation of the rules. Termination for cause is a serious consequence with an immediate and severe financial impact and should be used only as a last resort option, or in the most serious cases of wrongdoing.

If you have been terminated for cause or been subjected to disciplinary action at work and believe your rights have been violated, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.