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EMPLOYMENT LAW
Mar 24, 2014

Getting burned with no evidence

Investigations into potential employee misconduct doesn’t mean just trying to prove suspicions
    

By Jeffrey R. Smith

The old adage “where there’s smoke, there’s fire” can have a ring of truth to it, but it’s not a basis to decide someone’s guilt or innocence — and in the case of employee misconduct, possibly a person’s livelihood.

 

Employers have an interest in making sure employees follow rules and policies, especially when those rules and policies relate to safety and productivity. So it’s important to find out when misconduct happens and to properly discipline that misconduct to both deter and correct such behaviour. But employers have to be careful that in their zest for maintaining rules and policies, they properly identify when misconduct actually happens.

 

CP Rail found itself in a situation with — potentially — some serious misconduct by an employee a year ago when an employee reported to management that a worker had shown up to an overtime call with the smell of alcohol on his breath, was “kind of fidgeting and looked to be in a rush.” The worker in question was responsible for operating a crane used to help lift a derailed freight car.

 

Two supervisors smelled the alcohol, though they didn’t see any other signs of intoxication. There was an attempt to have the worker take a substance test, but by the time arrangements could be made it was too late for the test to be effective. CP investigated and found the smell of alcohol and the one report of odd behaviour was enough to determine the worker reported for duty while impaired and fired him for breaching its alcohol policy, despite the worker’s claims he was fit for duty as he had only consumed two beers over the previous few hours — during which time he ate dinner — before being called in.

 

An arbitrator found CP simply didn’t have enough evidence to prove the worker was impaired. All it had was the smell of alcohol on his breath — which could correspond to the worker’s explanation of having only two beers over a period of time which wouldn’t result in impairment — and one report of odd behaviour, which didn’t show impairment, but more likely showed the worker was eager to get the overtime work finished so he could go home, said the arbitrator.

 

It’s understandable CP was concerned about the chance a worker would be impaired while on the job — especially in such a dangerous environment as operating a crane at a train derailment — and the smell of alcohol on the worker’s breath would raise warning bells. However, suspicions are only suspicions, and CP’s investigation didn’t uncover any further evidence that supported its apparently preconceived notion that the worker was impaired — which, if the worker’s story was true, was not the case: Canadian Pacific Railway and Unifor, Local 101R (Veldhoen), Re, 2014 CarswellNat 392 (Can. Arb.).

 

It’s important for employers to conduct fair and comprehensive investigations when it suspects employee misconduct. Smoke may sometimes mean there’s a fire, but it can also obscure vision.

For more information on this case, look for the April 7 issue of Canadian HR Reporter.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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COMMENTS
Re: what to do instead.
Friday, March 28, 2014 7:54:00 PM
1. Who did CP Rail call to do the substance test?
2. Where were the techs at the time for doing the testing?
3. If they were too far away, why wasn't the local city used for administering the test?
4. I have worked in the transportation industry for almost 25 years. Whenever someone is suspected of being impaired, the local city police or hospital have been used for doing these tests. And it has been done in a very short time period.
So, if the employee was willing to have local authorities do the test instead and CP Rail declined the offer. Then CP Rail failed to do their job.
Also was he around while dealing with derailments? If he had been in contact with something that also got on his clothing that could have caused a strong odour i.e. a grain car that had rolled over and the grain had started to ferment.
If CP Rail did not do their job properly, then they should be held accountable for their actions in this matter.
What to do instead
Thursday, March 27, 2014 10:08:00 PM by Hopkins
The employer seemed stuck in a lose-lose situation. Obviously could not let someone continue operating a crane while suspicious that they were intoxicated. No luck when they tried to get a breathalyzer. Really all they could do was send them home or have him do something else during his shift, that would not put anyone in danger. Maybe tell him not to do it again through some warning system, if they had that in place. Damned if you do, damned if you don't.