Policy didn't indicate refusal was considered on par with positive test
A Nova Scotia company wrongfully dismissed an employee who refused to take a drug test after a supervisor smelled marijuana on him at work, the Nova Scotia Supreme Court has ruled.
On Dec. 2, 2011, a supervisor for the Halifax Streets Department came over to a city truck with two employees inside. The supervisor claimed he smelled marijuana, but both employees denied there was any smell. The supervisor allowed them to leave, telling them to drive safely.
About an hour later, the two employees were called into a meeting and asked to take a drug test. One employee — the one who had been in the passenger seat — refused, saying he was a recreational user of marijuana and the test would be positive because marijuana stayed in the system for a period of time, making it difficult to determine impairment. The employee was suspended with pay pending further investigation.
On Dec. 12, the employee who had refused the drug test was asked about his drug use and was non-co-operative. He refused to answer questions about his off-duty drug use, which he considered none of his employer’s business. Both employees were suspended without pay for two days and the refusing employee was referred to a substance abuse professional. After the consultant informed the city he couldn’t assess the risk without more information, the city terminated his employment for “lack of co-operation and direct violation of the Halifax Regional Municipality substance abuse prevention policy.”
An arbitrator found the supervisor didn’t observe any of the indications of likely impairment outlined in the policy and the policy didn’t say anything about a refusal to take the test being a deemed positive result or warranting dismissal. The city was ordered to reinstate the employee with full pay and benefits.
The city appealed the decision, seeking suspension without pay until the employee co-operated with an assessment of his drug use to determine his ability to safely operate vehicles at work.
The court noted the city’s drug testing policy applied to safety sensitive positions and stipulated “testing may be performed if a supervisor determines there is reasonable cause to suspect an employee of alcohol or other drug use.” This determination was to be based on “the supervisor’s specific observations” including erratic behaviour, unsteady walking, or changes in speech patterns.
The court also noted safety concerns must be considered legitimate unless clearly shown to be unfounded and efforts to create a safe workplace should be recognized. However, the court found nothing in the province’s Occupational Health and Safety Act that diminished the worker’s right not to be dismissed without just cause. The safety concerns the city had about the employee, based on thin evidence, did not constitute just cause, said the court.
