Flimsy evidence not enough to knock CP mechanic off track (Legal View)

Smell of alcohol did not prove worker was unfit for duty, violated agreement
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 04/07/2014

Canadian Pacific Railway has been ordered by an arbitrator to reinstate a worker dismissed for showing up for work under the influence of alcohol.

The 55-year-old worker was a journeyman railcar mechanic and senior crane operator for CP Rail in Alberta. He also held a supplementary service position that entitled him to be called on emergency calls and wrecking service work, which provided a significant amount of overtime.

The mechanic had worked for the railway his entire adult life, putting in 36 years of service, and was to become eligible for a full pension at the end of 2013.

On March 19, 2013, the mechanic put in a long day dealing with a derailment, working more than 12 hours. The next day, he reported for his regular shift at 7 a.m. When he completed his shift at 3 p.m., he went home, drank a beer and had a nap. He then had dinner with his wife at 5:15 p.m. and had another beer.

Later that evening, at about 7:45 p.m., the mechanic’s supervisor called and asked him to come in and re-rail a derailed freight car at the yard. The mechanic lived nearby so he accepted the call and arrived at the garage shortly after 8 p.m. and began to configure the crane.

Lingering odour of alcohol

Two co-workers arrived in the garage and discussed with the mechanic how to proceed with the crane. During the discussion, one of the co-workers smelled alcohol on the mechanic’s breath and thought he was “kind of fidgeting and looked to be in a rush.”

After the mechanic and the other worker left to do the job, the co-worker called the supervisor and told him what he had observed.

When the mechanic arrived at the railyard, the supervisor was there to meet him. The supervisor could smell alcohol on the mechanic’s breath and asked him if he had consumed any alcohol before reporting to work.

The mechanic replied that he had two beers several hours ago. The supervisor told him he was being held out of service and would be taken for a substance test.

The mechanic felt he was capable of performing his duties, so he consented to the test, confident it would exonerate him. In fact, no one other than the one co-worker observed any signs of impairment. Another supervisor took the mechanic to a testing facility but it was closed because it was 10:30 p.m. A tester was sought out but no qualified technician could be found.

Shortly after midnight, the CP police were contacted — but they said because of the delay, a
substance test would no longer be accurate. The second supervisor also reported smelling alcohol but saw no other indications of impairment.

Rules of engagement

The mechanic was held out of service while CP investigated the incident. The collective agreement required supplementary service employees, such as the mechanic, be fit for duty and able to report within one hour of being called. CP also had a policy for drug and alcohol procedures that prohibited the consumption of alcohol while “on call or on scheduled call” for employees in critical and safety-sensitive positions or while “in control of a CP vehicle or moving equipment.”

CP interviewed the mechanic during the investigation.

On April 11, 2013, CP determined the mechanic had breached both the collective agreement and its drug and alcohol policy, so it terminated his employment.

Arbitrator disagrees

The arbitrator noted a co-worker and two supervisors smelled alcohol on the mechanic’s breath but the only abnormal behaviour observed was by the co-worker, who felt fidgeting and being in a rush were suspect.

However, this was not evidence of intoxication, particularly since the mechanic had worked overtime the day before, making it “reasonable to conclude that he was in a rush to finish the work and go home to bed,” said the arbitrator.

The others present felt the mechanic was acting normal. And the smell of alcohol and the observation of one person out of five did not satisfy CP’s obligation to prove the mechanic was unfit for duty and violated the collective agreement, said the arbitrator.

In addition, the railway’s drug and alcohol policy created a higher standard than the collective agreement, which was a unilateral rule imposed by the railway and was not agreed to by the union.

“It is not clear that supplementary service employees would be covered by the policy as there appears to be a distinction between being ‘on call’ or ‘on scheduled call’ and being ‘available for call,’ said the arbitrator. “However, if they must comply, it is doubtful that they could ever consume a product that contains alcohol and must abstain from alcohol at all times. This is a higher standard than (the collective agreement), which only requires supplementary service employees to be available for call and fit for duty within one hour of being called.”

CP was ordered to reinstate the mechanic without loss of seniority and compensation for lost wages and benefits.

In addition, CP did not act in “good faith and fair dealing” in both its investigation and quick dismissal of a long-serving employee with a mostly clean record who was nine months away from retiring with a full pension, found the arbitrator. The company was ordered to pay an additional $5,000 in damages for its bad-faith conduct.

For more information see:

Canadian Pacific Railway and Unifor, Local 101R (Veldhoen), Re, 2014 CarswellNat 392 (Can. Arb.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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