Dismissal for possessing marijuana at work had been overturned because he didn’t know he had drug, but appeal court found he should have known
A Newfoundland and Labrador oil rig company has won its appeal upholding the dismissal of a worker for possessing marijuana at work that was originally overturned because the worker didn’t intend to bring the drug to work.
The worker worked for Magna Services Limited, an oil well equipment and supplies company based in St. John’s, N.L. He worked on an on-call basis and his job involved travelling to offshore oil production installations upon which Magna provided its products and services.
Because the working environment on offshore oil rigs was hazardous, Magna — like other companies in the industry — prohibited illegal drugs or alcohol in offshore locations. It had a zero-tolerance drug and alcohol policy that stated “the use, possession, or distribution of an illegal drug, or drug paraphernalia by an employee while on company facility or while performing company business is strictly prohibited.” This included “any detectable amount” of drugs.
The policy also stated that Magna Services would “invoke immediate disciplinary action leading up to and including dismissal” if any employee was found to have violated the policy.
The worker was called into work at an offshore oil rig on Jan. 27, 2014. However, security for the oil rig found a piece of aluminum foil in his jeans pocket that contained a small amount of marijuana. The worker said he didn’t know the drug was in his pocket, but admitted he occasionally used it recreationally. A mandatory drug test followed with a positive result.
Magna Services investigated and terminated the worker’s employment on March 26, 2014, for non-compliance with its drug and alcohol policy. The union grieved the dismissal, but an arbitrator found that the worker probably was aware that he had the marijuana and had simply forgotten it was in his pocket. So while he didn’t knowingly bring the marijuana to work, he was still “in possession” of it, which was a violation of the policy.
The union appealed and the Newfoundland and Labrador Supreme Court — as reported in the April 12, 2017, issue of Canadian Employment Law Today — determined that the arbitrator’s — and Magna Services’ — decision that the worker violated the drug and alcohol policy despite not being aware he had a small amount of marijuana on him was unreasonable. Though the worker had physical possession of marijuana while engaged in company business, he didn’t know he did until he was scanned by security. Since he didn’t know he had the marijuana with him, he didn’t intend to violate the policy, said the court in overturning the arbitrator’s decision.
Magna Services, through the Terra Nova Employers’ Organization, appealed the court’s decision.
The Newfoundland and Labrador Court of Appeal noted that the arbitrator initially took the view that Magna Services’ drug and alcohol policy warranted a strict liability approach — “doing of the prohibited act is sufficient to establish non-compliance with the policy.” The worker’s intent wasn’t important to the fact of whether the policy had been violated or not. On the appeal, the provincial Supreme Court adopted a different perspective and found intent must be incorporated into the interpretation of the policy, the Court of Appeal said.
However, the Court of Appeal found that in adopting a different perspective, the lower court didn’t assess the reasonableness of the arbitrator’s initial approach to the policy before doing so. This, the appeal court said, was an error, and the arbitrator’s interpretation of the policy — using a strict liability approach – was within the realm of reasonableness.
With the arbitrator’s approach in finding the worker strictly liable for violating the policy considered to be reasonable, the Court of Appeal found that the worker was required to establish that he had taken all reasonable care to ensure he didn’t breach the policy. Since the arbitrator found that the worker probably knew he had marijuana in his jeans pocket before and just forgot, it led to the conclusion that the worker should have realized there was a chance the drug was in his pocket due to his past use and posession of the drug on his person. Knowing Magna Services’ drug policy, the worker should have carefully checked his pockets before going to work, the Court of Appeal said.
Since the worker didn’t check his pockets even though he used marijuana recreationally, the Court of Appeal determined the worker didn’t take all reasonable care to ensure he didn’t breach his employer’s drug policy and therefore didn’t meet the standard of a reasonable person in similar circumstances. The appeal court overturned the lower court’s decision and restored the arbitrator’s decision that Magna Services had grounds to terminate the worker’s employment. See Terra Nova Employers’ Organization v. Communications, Energy and Paperworkers Union, Local 2121, 2018 CarswellNfld 17 (N.L. C.A.).
