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The Question

I was fired from my job for a workplace health and safety violation. I had brought my travel bag with me to work, planning to head to the cottage directly from the office. Among my belongings was a small bag of marijuana. Unbeknownst to me, a co-worker must have smelled this because within minutes I was called in to speak to human resources.

The HR rep asked me if I had any marijuana with me that day. I admitted that I did. Since cannabis is now legal, I assumed this wouldn’t be an issue. The HR rep, however, informed me that I was in violation of the workplace health and safety policy and I was being fired for just cause.

Can they do this? I have never once been high at work. I have never been disciplined for anything in my seven years of employment with this company.

The First Answer

Andrew Goldberg, associate, Samfiru Tumarkin LLP, Toronto

Although recreational cannabis is now legal across Canada, it does not necessarily give you carte blanche to bring marijuana with you to the office – even if you are not consuming the cannabis during working hours.

It is well within an employer’s right to create and enforce a policy that prohibits employees from possessing recreational cannabis in the workplace. Based on the wording of the policy, you may indeed be disciplined for bringing prerolled joints to work even though you intended on smoking them at the cottage.

Although you may have contravened the company’s policy on possessing cannabis in the workplace, your immediate dismissal for just cause is certainly a disproportionate response given you have no disciplinary record and were not intoxicated. Furthermore, for this type of policy to be legally enforceable, an employer must bring it to the attention of all affected employees. If the cannabis policy was not brought to your attention or you did not sign a form acknowledging that you had read and understood the terms, it is unlikely your previous employer can rely on the policy to assert that your possession of marijuana is justifiable grounds for termination with just cause.

In light of the above, you are surely entitled to a fair severance package and it appears your employer has left you high and dry.

The Second Answer

Steven M. Boorne, lawyer, HHBG Employment Lawyers, Vancouver

This is becoming an increasingly common story with the legalization of recreational marijuana. The rules around how marijuana should be treated in the workplace are in flux. Many businesses are unsure of how to handle these changes, mistakenly treating recreational cannabis the same way as alcohol, or ignoring the situation altogether in the hopes for more clarity from the government. Regardless of a company’s action or lack thereof, employers still have certain legal obligations.

In order for a policy violation like cannabis possession to justify a dismissal for cause, an employer must have a policy that sets out the rules on the issue, as well as the consequences for violations. The policy must be communicated to all employees.

What is dictated in the policy must also be reasonable. A “zero-tolerance” approach toward the use or possession of cannabis does not necessarily mean dismissal will be appropriate in all cases. A reviewing court will still assess whether dismissal was a reasonable and appropriate response. The policy must also comply with human-rights requirements to accommodate medical marijuana users and those with substance dependencies.

In this case, the employee appears unaware about the consequences of bringing marijuana to work and the employer seems to have applied a zero-tolerance approach without consideration of the employee’s individual circumstances – a medium-service employee, with no previous discipline, who made an honest mistake. I would recommend the employee obtain legal advice to challenge the dismissal.

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