'Leaving work was specifically an attempt to avoid an unfavourable substance test'
An arbitrator has upheld the firing of a railway worker who fled from work after being told to submit to a post-incident drug and alcohol test.
“Employees should have great policies and be purposeful in using them, and this case really shows that that works sometimes,” says Dylan Snowdon, a labour and employment lawyer at Carbert Waite in Calgary.
The worker was a conductor and yard service employee for Canadian Pacific Kansas City Railway (CPR) in Calgary, hired in 2003. Her position was considered “safety-critical.” She had a 30-day suspension and other instances of discipline on her record.
On Nov. 10, 2021, the worker was acting as a foreman and was operating a remote-control locomotive service unit. This unit allowed her to operate a locomotive from the ground with a beltpack.
The worker was trying to make a joint between two railway cars, but she was having difficulty aligning the connecting knuckles. She had to “stretch” the movement by moving the rail cars, creating about one-half of a car length – about 25 feet - between the equipment. To adjust the slack, the worker leaned in towards the equipment and stepped back quickly as the slack adjusted. When the movement stopped, the worker stepped between the equipment to get to the other side.
The assistant superintendent and the superintendent observed the worker’s activities. They were concerned because CPR’s safety rules required at least one car-length, or 50 feet, between equipment before someone could cross between it.
Breach of workplace safety rule
The assistant superintendent confirmed with the superintendent that the distance between the cars was only a half car-length, meaning that the worker had violated the safety rule twice – when she leaned in and when she crossed between the equipment.
They called the worker into the general yard office to discuss the incident. The worker was described as casual and relaxed as they reviewed footage from two different surveillance cameras. The worker said that she thought there was 50 feet between the cars, but the footage confirmed that it was significantly less.
The assistant superintendent told the worker that she would have to submit to a post-incident drug test under CPR’s alcohol and drug policy. The policy provided for testing after a “significant work-related incident,” a “safety-related incident,” or a “near miss.”
They confirmed this meant a urine test and the worker grew upset. She asked for a moment to herself, to which the managers agreed and stepped out of the room.
However, once they left, the worker left the room, exited the building, went to her car, and drove away. After several minutes, the superintendent checked the room and then searched the property for her. They checked camera footage and saw that she had fled.
CPR tried to contact the worker by phone and text messages, but she didn’t respond.
Termination after drug test incident
The worker immediately went on a three-month medical leave. She provided medical information indicating she had seen her doctor because she was “stressed and overwhelmed.” Her doctor diagnosed her with an “acute reaction to stress.”
When the worker returned on Feb. 23, 2022, CPR investigated the safety incident and the worker’s departure without submitting to a post-incident drug test.
CPR issued a 20-day suspension for not maintaining 50 feet between railway equipment when she placed her body between the cars twice. It then terminated her employment for breaching the drug and alcohol policy by departing without authorization from company property and failing to participate in a post-incident test.
CPR’s steps appeared to be well-thought out and methodical, says Snowdon.
“There was no rushing to an uninformed decision - every step appeared to be considered and well-reasoned,” he says. “They conducted an investigation and they gave the worker an opportunity to provide an explanation for each of the incidents.”
Testing not justified: union
The union grieved the termination, arguing that testing wasn’t justified as it wasn’t a significant incident – the equipment was stationary and the worker wasn’t in danger when she crossed in front of it. It also argued that testing was highly intrusive, the decision to test was made automatically instead of considering the circumstances, and there was no indication that the worker was impaired.
The arbitrator noted that the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 established that an employee’s involvement in a “workplace accident” or “significant incident” was a basis for testing.
In addition, arbitral jurisprudence established that an incident must have “some potential for injury” to support substance testing and discretion must be exercised in the decision to test, said the arbitrator. There must also be a link between the incident and the worker’s conduct, the arbitrator added.
The arbitrator accepted that not maintaining appropriate distance between railway equipment carried a significant potential for injury. Given the nature of the equipment and that injury potential, the incident was a significant event that supported post-incident testing, said the arbitrator.
“CPR’s policies were drafted specifically in line with the law, particularly as set out in Irving Pulp & Paper, which is to look at that balancing of interests between whether there are reasonable grounds to test and the employee's right to privacy,” says Snowdon. “Just applying that law of whether it’s a serious incident tips the balance in favour of post-incident testing and whether was there a link between the behavior and any type of conduct.”
Discretion used in decision to do drug test
The arbitrator also found that the decision to test the worker wasn’t made mechanically, as the distance between the rail cars wasn’t even close to the 50-foot minimum and the assistant superintendent confirmed the distance with the superintendent before acting. They also both listened to the worker’s explanation and reviewed video footage of the incident before making the decision to test her, the arbitrator said.
In addition, the arbitrator found that the change in the worker’s demeanour when she learned about the test and her leaving work led to a reasonable inference that she believed that if she was tested, the result would be positive.
Although the worker provided medical information of an acute reaction to stress following the incident, there was no evidence that she had any stress or other medical condition when she reported to work that day, said the arbitrator. While substance abuse testing can be a stressful situation, the arbitrator found no reason to believe that the worker was “so overwhelmed from a medical disability” that she couldn’t stay long enough to submit to testing.
The arbitrator found that the worker’s refusal to submit to a post-incident drug test and leaving work without authorization were deserving of discipline, particularly since it was likely she feared the result would be positive. If she disagreed with CPR’s decision, she should have followed the “work now, grieve later” procedure, said the arbitrator.
Discipline after safety incident
As for the level of discipline, the arbitrator found that leaving work without authorization was a serious offence, particularly when doing it secretly to avoid an unfavourable substance test. Adding in the worker’s failure to respond to CPR’s attempts to contact her when it didn’t know where she was and her disciplinary history, the arbitrator determined that dismissal was a reasonable response to the worker’s misconduct.
“The arbitrator found that leaving work was specifically an attempt to avoid an unfavorable substance test, and that type of action should absolutely attract significant discipline,” says Snowdon. “It wasn't just a snap decision, there was a series of considered actions that the employee took along with her performance management history.”
“Is this an employee that is likely to adhere to more performance management or have we reached the point where the employer has no reasonable expectation that any form of discipline less than termination is going to result in the safety required, especially in a safety critical position?” he adds.
A key takeaway for employers is that this employer had good policies on drug and alcohol use and investigations, and it followed them, according to Snowdon.
“I frequently see employers either don’t have good policies - which is something all employers can look to improve on if they don't have good policies – or there’s a good policy in place but it doesn't get used or isn’t used the way it was drafted,” he says. “This is an excellent case to show that we can get to outcomes that are defensible by staying on the straight and narrow path described by policy documents, because I think that's really why [CPR’s] decisions were found to be reasonable and were upheld - they had a methodical approach and did it exactly in the way that the policies described.”
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Murray), Re, 2023 CarswellNat 5652.
