'I don't really fault the employer for taking such a hard stance on an employee safety issue': lawyer
A New Brunswick employer has been ordered to reinstate a worker who was fired after testing positive for marijuana.
However, the employer’s decision to dismiss the worker may not necessarily have been the wrong one, according to Jessica Bungay, an employment lawyer and partner at Cox and Palmer in Fredericton.
“Having people come into the safety-sensitive workplace under the potential influence of drugs and alcohol is a serious issue and should be treated seriously, so it's tough for employers in these situations,” says Bungay. “They do tend to take a bit of a tough approach and let the chips fall where they may during arbitration – because otherwise, they're potentially putting their workplace at risk.”
The 46-year-old worker was employed with the Port of Saint John Employers Association, a group of companies that operate in Saint John, NB. As work in the port was safety-sensitive, the employers’ association had a drug and alcohol policy that permitted an employer to request a drug test where there was reasonable cause, such as reasonable suspicion of drug or alcohol use or a workplace incident. A positive test was a violation of the policy warranting discipline or termination “when justified by the circumstances.”
The policy was developed in concert with the union, which put it in a strong position for enforceability, says Bungay.
“It was a joint policy that the union and the employer had both agreed to, which is always ideal, but it doesn’t exist in every situation,” she says. “It eliminates the union’s ability to challenge the policy as unreasonable and it limits them just to the application of the policy - that's really the only thing they can challenge.”
Educate employees and provide copy of policy
The policy stipulated that the employer had the responsibility to implement and apply the policy, educate employees on the use and effects of drugs and alcohol, provide employees with a copy of the policy, and “ensure there is a complete investigation into any policy violation.” It was posted in the employers’ lunchrooms and in the union hiring hall where workers put in for job opportunities.
In 2022 and 2023, three employees were disciplined for violating the policy – one who tested positive for marijuana was suspended for two weeks with random testing; another tested positive for alcohol and disclosed an addiction so he was suspended and given a conditional return to work after completing a rehabilitation program with random testing; and a third tested positive for cocaine after an accident and was suspended pending completion of a drug rehabilitation program with random testing.
The worker started working for the employers’ association in August 2022. On Jan. 13, 2023, she had a position training for the “SEMAT,” a special-purpose truck used to convey freight containers.
A short period into the shift, the worker was driving her truck alongside a rail car with the intention of turning right at the end of the rail car. As she reached the spot to turn, a truck passed her on left, taking away the space to swing left for a wide right-turn. The worker made a tight turn and struck the end of the railcar with the truck, causing $5,000 in damage.
The worker contacted the trainer, who summoned the health, safety, and security advisor. They all went to the lunchroom, where the worker gave a statement. She was told she would have to take a post-incident drug test. The worker consented, saying that it shouldn’t be a problem since she had only smoked a joint five days earlier. She mentioned that she was a “very casual user” of marijuana.
Management didn’t observe any signs of impairment and, after the worker took tests – a breathalyzer test for alcohol and a liquid swab test for drugs - they allowed her to drive home.
Positive test result
The test results came back positive for marijuana – nine times the allowable limit.
The company considered that the worker had a short tenure and was in training, and she violated the policy with the potential of injuring someone. Without any mitigating factors such as an addiction, the company felt that a two-week suspension wasn’t enough and terminated her employment on Jan. 25 for violating the policy and reporting for work unfit for duty.
The union grieved, arguing that dismissal was too harsh for a first offence given the lesser discipline given to other employees. According to the union, there had never been a termination for a first offence going back to 1982. It also pointed out that the company had not observed any signs of impairment, allowed the worker to drive home, and violated its own policy by not providing a copy of the policy to the worker.
“The biggest challenge to the employer was that they chose to terminate this employee for a single violation of the drug and alcohol policy and it was the first time it had ever done that,” says Bungay. “I think that the arbitrator was struggling with that – the history is that [the employer] would put suspensions or other conditions in place if somebody was found to violate the policy and here, it jumped straight to termination.”
“The policy contemplated that termination could be a result, but it didn’t say any violation will result in termination,” she adds. “Nor do I think [termination] would necessarily be appropriate because you've always got to look at the individual factual circumstances.”
Worker hadn’t seen policy
The worker claimed that she didn’t feel impaired and she had never consumed marijuana before going to work, adding that if she had known how long it could stay in her system, she wouldn’t have consumed it at all. She also claimed that she had never seen the policy posted in the hiring hall.
The arbitrator noted that drugs and alcohol was a problem in the port industry and the policy was clear that dismissal was a possible result of violating it. Although two-week suspensions had been issued for other first offences, the policy allowed for termination “when justified,” the arbitrator said.
The arbitrator found that, although the worker tried to explain why she had marijuana in her system, the fact remained that she had more than the allowable limit in her system – a potentially impairing amount – when she reported for work. This was a violation of the policy that would normally warrant discipline, said the arbitrator.
However, the worker’s failure to understand how marijuana can stay in the system emphasized the need for the employer to educate employees on the use and effects of drugs as required in the policy, but the employer failed in meeting its responsibility that was “part of the bargain and agreement” between it and the union in developing the policy, the arbitrator said.
As a result of the employer’s failure to apply the policy properly, it couldn’t rely on the argument that the worker should reasonably have known that reporting for work with drugs in her system could lead to termination, said the arbitrator, adding that he would have upheld the dismissal if the employer had carried out its responsibility under the policy.
Policy applied improperly
“It was really the application of the policy – the arbitrator looked at, ‘Well, what have you done in the past?” says Bungay. “There was, under the policy, some responsibility for the employer to provide some education and training on the use and effects of illicit drugs, and I don't believe there was evidence that that duty had been fulfilled by the employer.”
Despite the arbitrator’s comment that there would have been just cause had the employer followed the policy, Bungay is skeptical.
“I don't know if, had the education happened, the termination would be upheld, because it's difficult to get a termination for a single offense,” she says. “Unless you've got more egregious facts, like maybe there were obvious signs of impairment or a significant injury that it was attributed to the conduct of the employee, you might be able to dismiss, but with the underlying facts of this case, I don't know that they still would have gone all the way to termination.”
The employers’ association was ordered to return the worker to the union’s referral list and apply the policy’s return-to-work provisions, including conditional and follow-up testing. The association was also instructed to make the worker aware of the policy and her responsibilities under it.
Although the employer was ordered to reinstate the worker, it doesn’t necessarily mean that it acted inappropriately in the circumstances, according to Bungay.
“Employers are left in a in a tough spot because this is an issue of employee safety, so even though the termination was ultimately challenged and not upheld, I don't really fault the employer for taking such a hard stance on an employee safety issue,” she says. “It would be more concerning if they took more of a lackadaisical approach.”
See ILA, Local 273 and Port of Saint John Employers Assn. (Thompson), Re, 2023 CarswellNat 3342.
