Employee's desire to wait for union representation to be present wasn't allowed under agreement
An Ontario employee breached his last-chance agreement by refusing to take an alcohol test until he had a union representative present, an arbitrator has ruled.
Scott Heath was an employee of the City of Cornwall, Ont., for 29 years. On Oct. 29, 2013, Heath’s employment became contingent on a memorandum of agreement that was the result of alcohol-related misconduct including being impaired at work and operating a vehicle while impaired. Under the memorandum of agreement, Heath was required to undergo random alcohol testing whenever requested by the city, for a period of 24 months. If such a test was ordered and Heath either failed or refused to take the test, the city would consider it a breach of the memorandum and terminate Heath’s employment.
On Aug. 25, 2014, another city employee contacted city management and suggested Heath may have been drinking while at a worksite. Heath’s supervisor called him and asked him to come to his office.
When Heath arrived at the supervisor’s office, the supervisor asked to smell his breath and he complied. The supervisor asked him to wait outside and called the city’s human resources manager and the division manager. Heath was brought back in to join them and declined their offer of having a union representative present after he was told they were “just having a discussion.”
The HR manager advised Heath that another city employee had suggested he had been drinking, so the city was exercising its right under the memorandum of agreement to order an alcohol test. Heath consented and chose to go to the hospital rather than a police station, and the HR manager and his supervisor went with him.
Heath registered at the hospital’s emergency department and spoke privately with a nurse before the nurse told the HR manager and supervisor that they shouldn’t have come there for that type of test as there were more appropriate places to do it. The nurse, thinking Heath appeared stressed and unsure of his rights, said she would do the test if Heath consented but he shouldn’t without a union representative. Heath indicated he didn’t want to proceed without a union representative there. He later testified that he put up his hands and said “This is more than a chat like I was told it was going to be; I’d like to speak to my union.” However, he wasn’t able to reach anyone and could only leave a message.
It became apparent they weren’t going to get the test done anytime soon, so the HR manager and supervisor decided to suspend Heath with pay pending an investigation — meaning when they could discuss it with the city’s chief administrative officer.
On Aug. 27, the HR manager called Heath into her office and informed him he was being terminated for failing to undergo an alcohol test as required under the memorandum of agreement. The union grieved the dismissal, arguing Heath never refused the test, he was just exercising his right to have union representation present.
The arbitrator found that Heath signed the memorandum of agreement acknowledging past misconduct and accepting the terms. Health said he had only signed the agreement to avoid being fired, which the arbitrator found meant he either was guilty of the misconduct or had no problem making false statements to save his job. Either, way it didn’t help his credibility, said the arbitrator.
The arbitrator found that when Heath said he wanted to speak to his union, he was placing a condition on his consent to take the test. Heath raised his hands in a gesture meaning “stop” and it was reasonable for the HR manager and supervisor to think he was refusing without union representation. Heath knew no-one was available and that refusing to take the test at that point would mean he wouldn’t be able to take it within a reasonable amount of time, said the arbitrator.
“The greater the amount of time between alcohol consumption and an alcohol test, the less likely there will be a positive result,” said the arbitrator. “In other words, any delay in taking the test could only be to (Heath’s) advantage, which would be a reason for him to be less agreeable.”
