No one saw worker smoking but he was the only one in room where drug was detected
An arbitrator has upheld a Manitoba worker’s dismissal for smoking marijuana on the job, despite the fact the worker was not actually seen using the drug.
The worker, Mark Panagabko, worked in the maintenance department for the Flin Flon, Man., school division with seven years of service. He and other employees were made aware of the school district’s zero-tolerance code of conduct that stated certain behaviour — including using, possessing, or being under the influence of alcohol or illicit drugs —wouldn’t be tolerated.
On the morning of Dec. 17, 2013, two other maintenance workers arrived at a Flin Flon school to do some repairs and set up for a Christmas event. They encountered Panagabko a couple of times over the course of the morning and had short chats with him.
Late in the morning, the two workers went into the boiler room to check the pumps and pressure on the boilers. There was a strong smell in the room which they identified as marijuana. Both had been around marijuana before and recognized it immediately.
One of the workers spotted Panagabko near a vent in the storage area and he ducked under it as they entered the room. They asked Panagabko how it was going and Panagabko replied “good” with what they described as “a big, goofy grin.” Panagabko left the room and the two workers noticed a desk by the vent that had a small pile of smoked butts — or “roaches” — on it. One worker smelled the roaches and was confident they contained marijuana.
The two workers discussed what they should do and one of them said he would speak to Panagabko and tell him not to bring drugs to work. They were reluctant to report it because they didn’t want to get Panagabko in trouble. However, after one worker went home, he was asked to come back in the afternoon to fill in for Panagabko, who had gone home sick. When he arrived back at the school, the worker checked the desk in the boiler room and the pile of roaches was gone. The smell of marijuana was gone but there appeared to be crumbs on the desk. Panagabko had been the only person in the room other than the two workers.
Co-workers reported marijuana in the workplace
Frustrated at having to cover for Panagabko, the two workers decided to call the supervisor because they felt marijuana use was affecting Panagabko’s work. When the supervisor arrived, they took him to the boiler room and told him what they had seen. The supervisor detected a faint smell that got stronger around the desk.
The supervisor took a photograph of the crumbs on the desk and brought them back to the administration office. Panagabko’s record was examined and it was discovered he had issues with attendance in the past, including an instance of filling out his timesheet for an entire day’s work when he had only worked a few hours.
The school board sent a letter to Panagabko asking him to attend a meeting with the superintendent on Dec. 20.
At the meeting, Panagabko said he was a recovering alcohol addict but denied smoking marijuana at the school, claiming he hadn’t used it for several months. Panagabko added marijuana had affected his job seven years earlier and it would be “unrealistic” for him to do it again. He did admit he used to smoke cigarettes in the boiler room but also had not done so for several months as it was against school policy.
Panagabko suggested the smell in the boiler room may have been from gas from his stomach or his co-workers might have smelled cigarette smoke on him from his break earlier in the morning.
Panagabko said he woke up feeling sick on Dec. 17, but went to work anyway because of the Christmas event that needed to be set up. He said he had been checking the fan in the boiler room because it had been malfunctioning and there was nothing on the desk, nor did he smell anything. The co-workers didn’t mention anything to him about a smell, either. Panagabko said he started feeling worse, so he called the supervisor and went home.
He also mentioned one of the co-workers might have wanted to get back at him because of a few incidents, but it was mostly “petty stuff” and they usually got along.
The superintendent suggested Panagabko take a drug test to disprove the allegations, but Panagabko said he only would if he entire maintenance crew underwent testing. The supervisor said he had no right to require such a test, so Panagabko refused, saying he couldn’t afford it and he was worried the effects of second-hand smoke would affect the test results.
The union reviewed with Panagabko the possibility of being accommodated, but Panagabko denied having an addiction.
The superintendent interviewed the two co-workers to clear up a few inconsistencies in the supervisor’s report and their story was consistent. With no reason to believe they were fabricating anything, the superintendent felt the evidence pointed to Panagabko having smoked marijuana in the school. Given the school district’s code of conduct, it was decided to terminate Panagabko’s employment.
Evidence was circumstantial but hard to dispute
The arbitrator found the school district’s case for dismissal was based on circumstantial evidence with no direct proof Panagabko was in possession of or smoked marijuana on school property. However, the circumstances pointed to the allegations being true and “any other conclusion is improbable,” said the arbitrator.
The arbitrator found the two co-workers were credible witnesses with consistent stories. They had no reason to fabricate the story, and they even hesitated to report the situation as they didn’t want to get Panagabko in trouble. The incident Panagabko mentioned with the one co-worker was not an indication of a history of ill will between them and there were no other indications of problems with either co-worker.
Panagabko was the only person in the boiler room when the smell of marijuana was in the room and the roaches were on the desk, and he was the only person who had been in the room when the co-workers returned to find the roaches removed. In addition, his conduct was unusual and he appeared to be high, and his simple denial that any of it happened was “obviously of a self-serving nature,” said the arbitrator.
The arbitrator noted Panagabko had an opportunity to establish his innocence through a drug test, but he refused. His explanation about being exposed to second-hand smoke “does not ring true.”
The arbitrator found there was just cause for discipline in the circumstances. Because Panagabko worked in close
proximity to children and on school equipment, his misconduct created a risk. In addition, he was aware of the code of conduct and the consequences of breaching it. The arbitrator determined dismissal was an appropriate response to the misconduct.
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