“Zero tolerance policies are never absolute," Lorenzo Lisi, a partner with Aird & Berlis LLP, told HRM. "If there was a reason for that conduct, especially considering the disability, the termination would not be upheld.”
The Toronto-based lawyer among those HR professionals scratching their heads after a cashier at a California Walgreens store was fired for eating food off the store shelf to stave off a diabetic attack -- but before she had actually paid for it.
The 18-year employee, who reported her Type II diabetes to her employer more than a decade ago, was restocking shelves when she started shaking and sweating from low blood sugar. She opened and ate a $1.39 bag of potato chips that was in the cart. It was her attempt to pay for the food after her shift that ultimately attracted her supervisor's censure and her dismissal.
The case is now before a human rights tribunal in California, but has key lessons to offer employers across Canada, said Lisi.
Canadian courts have found that zero tolerance policies are never watertight. The employer's knowledge of an existing disability and the accommodations offered to employees because of it should have been taken into consideration.
“This is a good example of a manager not being trained well enough to deal with this,” Lisi said.
The manager has testified that he was confident in his decision because the no grazing rule had “no grey area.”
Still, had he been better trained in how to assess the facts of a situation, argued Lisi, he may have found some middle ground.
At least there should have been a process to follow so HR was involved in the investigation and final decision, the employment law
yer told HRM. “A little training could have gone a long way and saved them a lot of money.”
A leading legal expert is suggesting the kind of zero-tolerance policy that saw a cashier fired for "grazing" food from the shelf is unenforceable and points to overzealous supervision.