Canadian Employment Law Today

Canadian HR Reporter, 2020 6 | | September 9, 2020 September 9, 2020 nor accounting for the finance division and es- calated enquiries from the contact centre. She had about 30 people reporting to her. The worker was good friends with two of the staff who reported to her, a team leader and a clerk who reported directly to the team leader. In January 2018, the worker was on vaca- tion in Mexico and became ill with pain from ulcerated colitis, a medical condition she had had for most of her adult life. She tried mul- tiple methods to help with the pain, but they didn't work so she tried smoking marijuana. She didn't like the way it felt and she didn't like to smoke, but it relieved her pain. When the worker returned to Winnipeg, she spoke to a nurse and other patients at a clinic where she received treatment and learned that marijuana was an effective treatment for pain. She also spoke to friends about it, including the team leader and clerk at work. Online ordering at work In the spring of 2018, the team leader told the worker about the availability of cannabis "edibles" online, suggesting they would work better for her since she didn't like to smoke. She knew he was going to place an order, so she asked him if she could order some edibles as part of his transaction. She was too nervous to place an order herself, as legalization of rec- reational cannabis in Canada was still several months away in October. When the team leader received the canna- bis order, she drove him home from work and he gave her the products she had ordered. The worker then tested them on the weekend, as she had never reported for work under the in- fluence of cannabis. Three months later, in August 2018, the team leader told the worker that he was plac- ing another cannabis order. The worker asked for more edibles and the team leader submit- ted the order that also included some products for the clerk who reported to him. They looked at the website on the team leader's work com- puter and the three of them discussed the order in the office before placing it. The order arrived in the middle of a work- day, so the team leader came to the worker's office with an envelope containing the can- nabis she had requested. The worker was in a meeting with two colleagues — with her office door open — and said he should put it by her purse. After the team leader left, she hinted about what was in the envelope by mentioning the possibility of an odour. It was the first time she had cannabis products in the workplace and hadn't expected the team leader to give the package to her at work. A few weeks later, one of the people in the meeting, an assistant manager, asked the team leader about the envelope and the team leader admitted it had contained cannabis. The team leader then warned the worker about the con- versation. The assistant manager told the HR depart- ment that the worker had asked her subor- dinate to illegally purchase drugs and those drugs had been brought into the workplace. MPIC launched an investigation the included interviews with the worker, the team leader and the clerk. The worker admitted her wrong- doing in an interview on Sept. 28, expressing remorse for her actions. Breach of policy and the law MPIC determined that all three employees had breached its criminal misconduct policy, which stated that if an employee admits to or is convicted of criminal misconduct while on duty, the employee will be subject to discipline up to and including dismissal. The corpora- tion also found they had breached its code of ethics and business conduct policy, which made clear that, as a Crown corporation, its employee had to demonstrate a high standard of personal conduct and integrity. In addition, MPIC's road safety department had an adver- tising campaign focused around not driving while "high" as the date of legalization in Can- ada approached and it felt that if word got out that employees were bringing cannabis to the workplace, it would damage its reputation and the campaign. MPIC terminated the employment of the worker on Oct. 3, 2018, along with that of the team leader and clerk, for breaching the policies and repeatedly failing to demonstrate good judgment, making it impossible to trust her with fulfilling her duties. The worker filed a claim for wrongful dis- missal, acknowledging her misconduct but arguing that summary dismissal was a dispro- portionate response. She pointed out that she had 18 years of service with no prior discipline on her record, she admitted her misconduct immediately, she didn't use cannabis at work and she acquired the cannabis for a legitimate medical reason. She also noted that the sub- ordinate wasn't just any employee but was a friend, and the law along with societal values regarding cannabis were changing. The court found that the worker was aware of MPIC's policies and she was too nervous to place her own cannabis order because it was an illegal substance. By asking the team leader to order for her twice and participating in an order with the clerk, she was condoning the il- legal activities of both subordinates — which was "completely inconsistent with her respon- sibilities as a manager" and demonstrating a lack of leadership, said the court, adding that she was also ready to place her subordinate employee in jeopardy both in terms of his job and legally for her own benefit — regardless of the fact that the employee was already pre- pared to do so without her order. The court also found that, in her manage- rial position, the worker was in a position of trust, was expected to defend MPIC's corporate values and follow its policies and was also ex- pected to ensure her employees did the same. Her failure to do so was serious misconduct deserving of dismissal, said the court. The court dismissed the worker's medical condition as a mitigating factor, as she received regular treatment from her doctors and, if she was desperately seeking pain relief through cannabis, she could have sought a medical au- thorization. In addition, the court placed little weight on the worker's acknowledgment and remorse, as this only came in the investigation interview more than one month after she received the cannabis package at work and two weeks after the team leader had admitted it to the assistant manager and then warned the worker. The fail- ure to come forward earlier demonstrated "a lack of leadership and placing her own inter- ests ahead of those of [MPIC] and of her subor- dinate," the court said. The court also found that it made little dif- ference that pending changes to the law less- ened the misconduct. At the time of the work- er's termination, the possession and use of cannabis products in Canada without medical authorization was illegal — which the worker knew and why she didn't want to place the order herself. Condoning and being involved with subordinate employees ordering the drug — and breaching MPIC policies — still pro- vided just cause for dismissal, said the court in dismissing the worker's claim. For more information, see: • Gaucher v. Manitoba Public Insurance Corpo- ration, 2020 MBQB 4 (Man. Q.B.). « from WEED ORDER on page 1 Employee brought envelope containing marijuana to office The manager was too nervous to place an order herself, as legalization in Canada was still several months away. Cases and Trends Cases and Trends

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