By Todd Humber
An arbitrator has reinstated two Ontario workers who were fired for trading marijuana at their workplace.
The workers – both in their 50s – were employed at THK Rhythm Automotive Canada, a manufacturer of automotive components for several major car companies with a production facility in St. Catharines, Ont.
The workers were subject to THK’s code of conduct, which stated “employees reporting ‘unfit’ for work, possession and/or consumption of alcoholic beverages or illegal substances (i.e. drugs) on company property or during scheduled working hours and break periods” would likely be terminated from employment due to the seriousness of their actions.
THK’s collective agreement also had a provision stipulating that reporting for work under the influence of alcohol or using alcohol at work would not be tolerated, and required employees to avoid conduct that was not acting in “good citizenship.”
On April 15, 2016, the two workers were working the afternoon shift at the production facility. Shortly before 9 p.m., they were seen leaving the building and going to the parking lot.
The workers went to a vehicle owned by one of them, and one removed a shopping bag containing two marijuana plants. He gave the bag to the other worker and both of them returned to the building, with one worker carrying the shopping bag.
Once inside, the workers split up and the one carrying the shopping bag proceeded to an area of the facility that wasn’t in use at the time and hid the bag.
A supervisor observed the latter worker’s trip to the unused section of the facility and, when the worker returned to his work station, the supervisor went into the empty section of the facility and found the bag with the marijuana plants inside.
The worker who had carried the marijuana plants inside was immediately suspended pending investigation.
THK management observed the security tapes on April 18 and interviewed both workers. Neither could explain themselves sufficiently to satisfy management — though they both acknowledged their wrongdoing — so on April 20, both workers were terminated from their employment at THK for violating the employee code of conduct.
In addition, THK was of the position that the possession or use of any mind-altering substance — with the exception of prescription drugs — by employees was an “extreme safety hazard to all employees” because of the presence of heavy equipment, presses, robotics and tow motors in the facility. It was a dangerous workplace that required strictly enforced restrictions on such substances, according to THK.
The union grieved the dismissal. It acknowledged that the workers were guilty of misconduct that failed the collective agreement’s “test of good citizenship,” but argued dismissal was too harsh.
The union pointed out that both workers had more than 20 years of good service with THK and neither had prior discipline on his record due to a sunset clause in the collective agreement. It argued that the federal government’s stated intention to legalize marijuana created a limbo for the drug and there was confusion as to its status as an illegal drug. In addition, the marijuana plants were young and not yet “consumable” and it was a “simple transfer without consequence to the employer or to anyone else.”
The arbitrator noted that THK’s rule prohibiting employees from reporting to work in an unfit condition and its severe consequences was reasonable, given the hazards in the workplace. The arbitrator also dismissed the union’s argument regarding legalization, since it hasn’t happened yet and there is no confusion that marijuana remains an illegal drug until a new law is passed.
Either way, marijuana is still a mind-altering substance and its legal status didn’t change the fact it was dangerous to have in such a dangerous workplace, said the arbitrator.
In addition, the distinction between consumable and non-consumable plants was irrelevant and it was reasonable for any employer to ban all forms of illegal or unwelcome drugs, said the arbitrator.
“An employee who violates a health and safety rule takes the risk that something unanticipated may occur, and cannot later be excused on the basis that he did not expect a result which was foreseeable,” said the arbitrator.
However, the two workers didn’t intend to consume the marijuana at the workplace. It was questionable whether their actions had no consequences to others at work, as not everything can be foreseen, but the arbitrator determined the workers deserved one more chance.
THK was ordered to reinstate the workers without compensation for the two months missed since their termination, with that time serving as a suspension. The arbitrator also implemented a last-chance agreement stipulating that if either worker violated any rule regarding the possession of mind-altering substances at work within a 24-month period following reinstatement, they would be automatically terminated.
See THK Rhythm Automotive Canada Ltd. and TPEA (Rodwell), Re, 2016 CarswellOnt 9433 (Ont. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
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