B.C. driver’s firing upheld after failed blood-alcohol examination

An Ontario arbitrator has upheld the dismissal of a propane truck driver who showed up for work after too much imbibing the night before.

The worker drove a propane truck for Superior Propane, a propane gas supplier based in Mississauga, Ont., out of the company’s Invermere, B.C., location. The position was safety-sensitive — there was a risk of fire and explosion from the propane gas — and Superior trained the worker on its fit-for-duty policy, which required him to regulate his alcohol consumption so there was no risk of impairment at work.

The worker had three instances of discipline in 2018 — a 40-hour suspension in February for deceit and falsifying records, a written reprimand in September for failing to comply with accident reporting and safety procedures, and a three-shift suspension with a final warning in November for using a cellphone while driving.

On Sept. 13, 2019, the worker started his shift at 7 a.m. One hour later, the market manager convened the daily safety meeting and noticed that the worker’s eyes were bloodshot and he appeared disheveled.

After the meeting, she asked another driver if the worker smelled of alcohol and the driver replied in the affirmative, also mentioning that the worker had told coworkers that he had “shut down the local pub the night before and walked home.”

The manager informed the HR department, which advised her to obtain a blood-alcohol test. The manager told the worker that she had reasonable grounds to believe he was in violation of the fit-for-duty policy and the worker explained that he had consumed five or six beers the night before but was in bed by 10 p.m. He claimed to have woken up feeling normal and said that if he had felt intoxicated or hungover, he would have called in sick.

The contractor who performed the testing was two hours away, so the manager requested assistance from the police. The worker voluntarily submitted a breath sample at around 9:15 a.m. and his blood-alcohol count was 43 mg per 100 ml of blood — more than double the policy’s limit of 20 mg for employees in safety-sensitive jobs. It also exceeded the threshold of 40 mg for non-safety-sensitive positions.

The contractor administered another test at 10:44 a.m. that showed the worker’s blood alcohol at 18 mg. The worker was placed on paid suspension pending an investigation. Superior invited the worker to provide a statement about the incident, but the worker failed to do so.

On Sept. 25, Superior terminated the worker’s employment for a “violation of the company’s fit-for-duty policy and other disciplinary events over the last 24 months.” The union argued that the worker honestly but mistakenly believed he went to work with a blood-alcohol level below the policy’s threshold and he cooperated with the investigation, so dismissal was excessive.

The arbitrator found that the worker knew or should have known that there was a risk that his blood-alcohol level was too high when he went to work. Since the level dropped by 25 mg in the 90 minutes between the first and second test, it was reasonable to assume that the worker had had enough drinks to put his blood-alcohol level at about 150 mg when he went to bed at 10 p.m. This was supported by the fact that others noticed that he smelled of alcohol, which also provided reasonable cause to conduct the test, said the arbitrator.

The arbitrator found that the worker committed a “serious employment offence given the safety-sensitive nature of his job and the associated risk of harm to others.” Although it wasn’t premediated, the worker knew he needed to monitor his alcohol consumption and “acted with reckless disregard.” In addition, the worker had previous discipline for safety infractions including a final warning, said the arbitrator in upholding the dismissal.