In a recent Ontario case, a court had to determine whether an employee should have been fired for vaping at work. Vaping is the inhaling of a vapor created by an electronic cigarette (e-cigarette) or other vaping device.

Employee Caught Vaping at Work

The employee worked as a warehouse attendant at the employer’s distribution center in Vaughan. He had begun his part-time employment on March 6, 2015 and became a full-time employee on June 18, 2018.

On January 30, 2019, the then 31 year old employee was caught vaping inside the warehouse. Another employee reported seeing the employee vaping and it was confirmed on video surveillance.

One of the employer’s warehouse policies expressly prohibited smoking inside the facility. The terms of the employer’s smoking policy (that smoking was prohibited inside the facility and permitted only in designated areas outside) had been communicated as part of the employee’s initial training and during crew talks that he attended in the ordinary course of his employment.

The employee was terminated without warning on February 4, 2019 on allegations of cause, for vaping on the premises.

The employee acknowledged that he was aware of the no smoking policy, that there were designated smoking areas outside, and that there were signs prohibiting smoking inside. However, the employee claimed that he did not understand that vaping was a prohibited act of smoking.

The employee began an action seeking a declaration that his conduct did not meet the threshold for dismissal for cause and that a lesser sanction and some form of progressive discipline or a warning would have been a more appropriate sanction. The employee claimed to be entitled to six months’ pay and benefits in lieu of notice in the amount of $30,000, minus any income he earned by way of mitigation during the notice period. Alternatively, the employee sought the minimum notice of four weeks’ pay in lieu of notice under the Employment Standards Act.

In response, the employer maintained that its termination of the employee for cause was justified because he was caught on video vaping inside its milk and dairy product storage facility. The employer maintained that this conduct was in contravention of the company’s policies and procedures and contrary to the Safe Food for Canadians Regulations under the Food and Drugs Act and contrary to the Smoke Free Ontario Act, 2017 that came into force in October of 2018. The employer argued in the alternative that, even if there was not just cause for its dismissal of the employee, he would only be entitled to four – rather than six – months’ pay and benefits in lieu of notice, or three weeks minimum pay under the Employment Standards Act.

Court Finds in Favour of Employee

The court began by setting out the analytical framework to be applied in such cases. This consists of:

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

The court summarized its findings as follows:

“I agree with the [employee] that, in the circumstances of this case, there was not just cause for his termination without notice. It has not been established that [the employee] wilfully or persistently disregarded the company’s policies or applicable legislation. A more appropriate sanction would have been a warning perhaps coupled with a brief suspension or some other form of progressive discipline. [The employee] was in a different position than the two other employees who also had been reported by the same confidential source to have been vaping on the premises on earlier occasions, because they were not captured on video surveillance and denied having done so. That difference could justify a more extreme sanction for [the employee], but did not warrant his immediate termination and dismissal. This was not a proportionate response by the [employer] in the circumstances.”

The court further found that the appropriate period of pay and benefits in lieu of notice was four months, minus any earnings the employee had made during the notice period.

As a result, the court found in favour of the employee and awarded damages in the amount of $14,397.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.