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Dismissal upheld for 2 employees caught smoking marijuana on break

Employers should be cautious when imposing discipline, even when there appears to be gross misconduct
Employment law
Use of marijuana and impairment at work will become even more significant issues to be addressed as we move toward legalization of recreational usage. REUTERS/Jason Redmond

By Stuart Rudner and Nadia Zaman 

Can an employer dismiss an employee who is caught smoking marijuana at work? Does it matter whether the employee smokes marijuana while working, while on a break, or before or after work? What factors would a decision-maker take into consideration to determine whether dismissal is appropriate or whether some form of lesser discipline should be imposed?

While the answers to these questions may seem straightforward, each decision is based on the particular facts of the case, the nature of the workplace and the circumstances of the employee.

In University of Windsor v Canadian Union of Public Employees, Local 1001, two custodians working the overnight shift on campus were found by campus police smoking marijuana in one of the grievor’s cars during their shift. They both initially denied that they had been smoking marijuana, however, when pressed by the officer, one of them admitted that they “had” been smoking marijuana and the other handed over a bag of marijuana.

They also admitted to their employer that they had smoked a joint prior to their shift but maintained that they had not smoked on campus. Upon investigation, the employer concluded  they were not telling the truth and dismissed both of them.

Both employees had substantial service with the university (about 17 years each at the time of their discharge) and a clean discipline record. However, the employer relied on the following:

  • their possession and consumption of an illegal substance on campus
  • the safety-sensitive nature of their position
  • their access to locked area of campus
  • their proximity to students
  • the fact that they were dishonest when confronted about smoking on campus
  • the employer’s loss of the trust necessary in light of the unsupervised nature of their position.

The union grieved and argued that discipline, if any, should have been progressive, and sought reinstatement with full compensation.

There was no dispute that both employees had engaged in inappropriate conduct. The issue was whether the arbitrator should substitute a lesser form of penalty than discharge.

Arbitrator Eli Gedalof analyzed the matter by first recognizing that each decision is fact-specific. The arbitrator then noted:

“What arbitrators have consistently found, though, is that the absence of candour by the grievor when confronted with respect to her or his drug use is a significant aggravating factor, since it undermines the trust relationship between employer and employee, and gives rise to a concern with respect to the employee’s rehabilitative capacity. The undermining of this trust becomes more significant where the position is either highly safety sensitive, or unsupervised.”

In order to highlight “the fact-specific nature of the inquiry, and the manner in which the specific nature of the workplace and the grievor’s circumstances inform the exercise of remedial discretion”, the arbitrator referred to another decision: Re Great Atlantic and Pacific Co. of Canada, Ltd. and UFCW, Loal 175 & 663.

In that decision, arbitrator Randall had found strong mitigating factors which warranted giving the grievor a second chance, including the fact that the job was not particularly safety-sensitive, the grievor was a long-term employee, had a clean record, was a good performer, and was a forthcoming and compliant witness.

In addition, there was expert medical evidence that linked his use of marijuana to post-traumatic stress disorder for which he had sought extensive and ongoing treatment post-termination.

The arbitrator thus substituted a two-month penalty with the remaining period off work to be characterized as a medical leave of absence, allowing the grievor to access his benefits, and the grievor was to remain off work until his doctors certified that he was fit to return.

In the University of Windsor matter, the arbitrator found that he could not give any significant weight to the grievors’ post-discharge participation in drug treatment programs since there was no medical evidence to support the conclusion that they suffered from an addiction, that their misconduct was causally related to that addiction, or that either grievor had addressed effectively such an addiction through treatment.

However, the arbitrator found the following to be strong mitigating factors:

  • both grievors had substantial service
  • neither had a significant history of discipline
  • they both appeared to have been good performers
  • the janitorial position could not be characterized as highly safety-sensitive.

Accordingly, “absent any significant aggravating factors, even in the absence of an underlying disability, these factors point strongly toward providing the grievors with a second chance and substituting a lesser penalty.”

But the arbitrator found the following to be significant aggravating factors:

  • the janitorial position was effectively unsupervised and thus required a significant degree of trust
  • the grievors were not candid, tried to mislead the employer, and rejected several opportunities throughout the discipline process and the hearing to be truthful with their employer.

Thus, the arbitrator found that the grievors conducted themselves in a manner that “fundamentally undermined the trust relationship necessary for the maintenance of the employment relationship.” As a result, the arbitrator dismissed the grievances, held that the employer had just cause for dismissal, and found that it would not be appropriate to substitute a lesser penalty.

While dismissal was upheld in this case, employers should be cautious when imposing discipline even when there appears to be gross misconduct. The arbitrator was very clear in highlighting the fact-specific nature of the inquiry, and the manner in which the specific nature of the workplace and the grievor’s circumstances inform the exercise of remedial discretion.

There are no absolute rules regarding when just cause will be found; even smoking marijuana while at work will not always be found to warrant summary dismissal. The context is key. Employers should address these issues in a proactive manner by assessing all relevant factors before deciding to dismiss for cause and should seek legal advice to help avoid unnecessary and significant liability.

Use of marijuana and impairment at work will become even more significant issues to be addressed as we move toward legalization of recreational usage. Employers should ensure that they have well-worded policies in place to address these issues.

Nadia Zaman is an associate at Rudner Law in Toronto.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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