Can I get fired for smoking at work?

By Matt Lalande in Employment Law on March 05, 2020

Can I get fired for smoking at work?

The answer it that…it depends. Section 9(1) of the Smoke-Free Ontario Act prohibits smoking “in any enclosed public place or enclosed workplace”.

Generally, “for the breach of an employer’s rule to constitute cause for termination, the employee must be aware of the rule, the rule must be reasonable and the consequences of its breach must be so severe as to fundamentally breach the employment contract”. Furthermore, a Court may not uphold the validity of a dismissal for purported cause if it considers the employer’s rule to be unreasonable.

Penalty for a breach must be reasonable and objectively proportionate to the seriousness of the conduct. An employee’s previous good (or bad) work history is also relevant. Generally, a single incident of smoking – or bad judgment –  is not certainly not cause for dismissal where there is no intention to be dishonest. There is a good argument to be made that this one act of breaching the employer’s policy does not constitute just cause.

All About Ontario’s Smoke Free Laws

The applicable legislation is the Smoke-Free Ontario Act generally, S.O. 1994, c. 10 (“SFOA”), which came into force on May 31, 2006. It is enforced by the Ministry of Health and Long-Term Care.

Section 9(1) of the SFOA prohibits smoking “in any enclosed public place or enclosed workplace”. Section 1 defines 1(1)“enclosed workplace” as follows:

“enclosed workplace” means,

(a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them,
(i) that is covered by a roof,
(ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and
(iii) that is not primarily a private dwelling, or
(b) a prescribed place; (“lieu de travail clos”)

There is one regulation enacted under the SFOA generally, General generally, O. Reg. 48/06.

Section 12 of the Regulation prescribes further areas where smoking is not permitted, and that includes “an area within a nine meter radius surrounding any entrance or exit of any of the following places …”: hospitals (public and private), psychiatric facilities, long term care homes, and independent health facilities.

Nowhere in the Regulation generally, is the definition of 1(1)“enclosed workplace” further described to include the parking lot of a workplace, or a certain distance from an entrance or exit of a workplace.

Section 12 of the SFOA indicates that where there are conflicts with other laws, the law which is the most restrictive on smoking prevails. The Ministry of Health website, frequently asked questions regarding smoking in the workplace, describes “enclosed workplaces” in the following way:

The Act Protects Employees in an “enclosed workplace”

The Act seeks to protect employees from exposure to second-hand smoke in an enclosed workplace. An enclosed workplace means the inside of a building, structure or vehicle that an employee works in or frequents during the course of their employment (whether or not they are acting in the course of their employment at the time), and includes common areas such as washrooms, lobbies and parking garages. Examples of an enclosed workplace include the inside of a trailer office on a construction site, the inside of a loading dock, or the inside of a delivery truck.

The ban on smoking in an enclosed workplace is in effect at all times, even during off-hours when people are not working.

As to the maximum fines and penalties for violation of the SFOA generally, the fines are determined by the number of convictions. The maximum fine for a first time offence by a corporation is $100,000 and the maximum fine for a corporation with more than one conviction is $300,000.

Does one single breach of a smoking policy justify a just cause termination?

Probably not. There are many labour law cases where violation of employer’s policy was at issue. Generally, “for the breach of an employer’s rule to constitute cause for summary dismissal, the employee must be aware of the rule, the rule must be reasonable and the consequences of its breach must be so severe as to fundamentally breach the employment contract”.

Furthermore, the Court may not uphold the validity of a dismissal for purported cause if it considers the employer’s rule to be unreasonable.

Penalty for a breach must be reasonable and objectively proportionate to the seriousness of the conduct. An employee’s previous good (or bad) work history is also relevant.

Case examples of being terminated for cause – fired for ordering $84.00 ice packs without approval.

In a case called Hill v. Dow Chemical Canada Inc. the 48-year-old plaintiff was the superintendent of security for the employer for seven years. He supervised 40 employees and a budget of $4 million. He received satisfactory performance evaluations, merit increases and bonuses throughout that period.

A local hockey team had made an unsuccessful application for a monetary donation from the employer, and the plaintiff asked the coach if there was anything else the company might be able to provide. The coach indicated that the team needed ice packs. The plaintiff ordered the ice packs, which cost $84. The plaintiff did not conceal his purpose, but did not seek any approval from the employer. The requisite form was never completed. However, under the employer’s policy, the plaintiff could have completed the form and authorized the donation himself from his departmental budget without any further approval being required by the employer.

One year later, as a result of an anonymous complaint about his job performance, the plaintiff was reprimanded by his supervisor in writing and warned that he would be terminated if there was no improvement. That was contrary to the company policy, which required that a verbal warning be given first and the employee be afforded an opportunity to demonstrate his or her improvement before written reprimand.

Within days of the warning, the supervisor learned of the donation of the ice packs.

The termination

As a result, the supervisor met with the plaintiff, and on failing to receive a satisfactory explanation, gave the plaintiff the option of resigning or being terminated. The plaintiff made more than 30 unsuccessful job applications. He eventually sold a property to invest in a business which subsequently failed. He ultimately obtained employment. The plaintiff sued for damages for wrongful dismissal. Action was allowed.

The standard of proof for cause for dismissal is very high where the cause involves an allegation of breach of trust. The failure of the plaintiff to prepare the proper form demonstrated poor judgment, but it was not dishonest. While the plaintiff, as superintendent of security, should have appreciated the need to comply with company security policy, there was no personal gain involved, the employer was not significantly prejudiced, and there was evidence that the policy had not been consistently enforced in the past. In the circumstances, the action of the plaintiff was not so dreadful as to destroy an employer’s trust. Moreover, the decision to terminate was tainted by wrongful assumptions and concerns about the plaintiff’s performance, which he was given no opportunity to redress.

What did the Court say?

There was evidence that AOS forms were not always administered in accordance with the company policy. Some, including some destined for donations in which the plaintiff was not involved, were not signed at the plant gate as required. There was also evidence that AOS forms could be authorized and signed by the same staff person. It therefore would have been permissible for the plaintiff to have authorized the removal of the ice packs and signed them out himself, without seeking any other approval. He also had authority, according to the company Contributions Policy, to make the donation. It appears therefore, that the only wrongful act involved was the failure to complete the required form, in accordance with a policy he was charged to enforce.

The onus is on the defendant to show cause for dismissal which must be misconduct of the most serious kind. The standard of proof is higher where the cause involves an allegation of breach of trust.

I agree with the submission of the plaintiff that generally a single incident of bad judgment is not cause for dismissal where there is no intention to be dishonest, but that a single incident of dishonesty may be. However, even in the absence of dishonesty, the whole of the circumstances must be examined to determine whether the incident was so dreadful or damaging to the defendant, or whether the level of responsibility required such exceptional judgment, that it could not be excused.

Here, the failure of the plaintiff to prepare the proper form demonstrated poor judgment, but it was not dishonest. One would expect the superintendent of security to appreciate the need for and comply with company security policy, but there was no personal gain involved, the defendant was not significantly prejudiced, and the policy had not been consistently enforced in the past. …

Another Example – Drinking at work

In a case called Volchoff v. Wright Auto Sales Inc.  the employee, a manager at a car dealership, was terminated for just cause due to being under the influence of alcohol at work on a number of occasions and because he drove dealership vehicles while impaired. The employee denied there was any just cause for his termination and brought an action for damages for wrongful termination. The action was allowed. The vague acts of misconduct by consumption of alcohol during work hours by the employee were not serious enough to warrant his dismissal. The employee was never told that his job was in jeopardy or that his employment could or would be terminated if he continued to consume alcohol during working hours. A suspension and a warning would have been more appropriate. The employer’s zero tolerance policy was not included in the employee handbook until after the employee was terminated and it was not term of the employment contract. Thus, the employer breached its contract with the employee by terminating his employment without notice.

Have you been fired for Smoking on company property…or for cause?

Remember – The onus is on the employer to prove cause for dismissal, “which must be misconduct of the most serious kind”. The sufficiency of the justification depends upon the extent of misconduct.

Termination for cause if the “capital punishment” of employment law. Just cause for dismissal now turns on an assessment by a jury or Judge of the particular circumstances of the case, including, but not limited to, the character and consequences of the impugned conduct, your prior disciplinary responses (if any), the nature of the business, your duties, as well as your length of service, past performance and service record.

In short, a single bad decision or short periods of alleged poor performance should not outweigh years of effective contribution to the employer.

If you’ve been terminated for cause, contact us online, or call us at 905-333-8888 for your free phone consultation. We would be happy to speak to you about your particular situtaion – and hel you if we can.