IBEW appeals ruling to Supreme Court
A Newfoundland and Labrador worker who was fired for failing to disclose his use of medical marijuana is having his case sent back to arbitration for reconsideration on whether there was sufficient cause for dismissal.
Brandon Uprichard, 37, was hired by Valard Construction — a utility contractor based in Edmonton — in April 2015 to be a structural assembler for the transmission line of the Lower Churchill Project, also known as the Muskrat Falls Project, in Labrador. Uprichard had worked previously on transmission line projects for Valard in Alberta and British Columbia.
Uprichard suffered from chronic pain in his back, knees and hands. When prescribed pain medication caused stomach problems and made him concerned he would become addicted, he decided to start using marijuana. The drug provided Uprichard with relief from his pain symptoms without any side effects, so after using it illegally for six months, he went to see a doctor who prescribed it for him in December 2014.
The doctor instructed Uprichard to take two grams of marijuana per day and not to drive or use heavy machinery within four hours of using it. Otherwise, there would be no impairment of his ability to work, said the doctor.
Uprichard ordered the marijuana from a federally licensed dispensary in Ontario and purchased it online with his credit card. He told a friend about his medical marijuana prescription. The friend was a foreman for Valard and sometime later, he told Uprichard about a job opportunity on the Lower Churchill Project.
Uprichard applied for the job with Valard and the company required him to undergo a physical examination and a drug and alcohol test. Uprichard refrained from taking marijuana for a period of time before taking the test so it didn’t show up in his system. Once he was hired, he also didn’t disclose that he was a user of medical marijuana, as he felt it would have kept Valard from continuing his employment.
While Uprichard worked on the project, he brought his supply of medical marijuana with him when he reported to the worksite for each 21-day rotation. He didn’t bring it into the work camp but instead hid it in a ditch outside the gates. After his daily shift, he went outside the camp to smoke the amount prescribed by his doctor. He didn’t smoke the marijuana at the worksite or during working hours.
On Aug. 19, 2015, Valard managers on the worksite detected the smell of marijuana in a pickup truck used by Uprichard and other employees. Several employees were interviewed and Uprichard admitted that he had smoked marijuana outside the camp the night before. He explained about his prescription for medical marijuana and he was permitted to continue working while the company investigated.
Five days later, Valard revoked Uprichard’s site access and terminated his employment for violating various company policies by not disclosing his medical marijuana use when he was hired, being impaired by marijuana at work on Aug. 19, smoking marijuana at the worksite and possessing marijuana in the camp.
Uprichard’s union, the International Brotherhood of Electrical Workers, Local 1620 (IBEW), challenged the dismissal, arguing Uprichard had “all of the appropriate medical and legal authorizations” for medical marijuana and he took care to not use it while working or on the worksite. The union also said the legal landscape for marijuana use had changed and Valard’s zero tolerance for it discriminated against users of medical marijuana such as Uprichard.
The arbitrator upheld the termination, finding Uprichard took deliberate steps to conceal his use of medical marijuana and his failure to disclose it violated Valard’s standard and the Canadian model for providing a safe workplace —both of which required reporting if there was any risk of impairment by alcohol or drugs.
Though the arbitrator agreed that there was no evidence of impairment at work, Uprichard’s violation of the policy and standards raised “a generalized concern for safety with undetectable impacts from continued use” of the drug.
IBEW appealed to the Newfoundland and Labrador Supreme Court, claiming Valard discriminated against Uprichard based on a disability.
The court noted that a zero-tolerance policy must usually be rationally connected to the legitimate requirements of the workplace. Given Valard’s safety concerns on its construction worksite, it was reasonable for the arbitrator to determine disclosure of the marijuana use was required and Uprichard breached that requirement, said the court.
The court found that because of Uprichard’s breach of policy, the fact he deliberately concealed his medical marijuana use, and there were potential impacts of marijuana use on the worksite, Valard had cause for discipline.
However, the court also found that the arbitrator’s main justification for termination was that Uprichard violated the established reporting standards and there should have been more consideration of the mitigating circumstances.
The court noted that Uprichard followed his doctor’s advice with regards to the amount he took and when he took it, his work record had no problems, he worked safely on the project, and Valard had no safety concerns since it allowed him to continue working for another five days before the company terminated his employment.
“In these circumstances, it was reasonable for the arbitrator to have done a further assessment of the appropriateness of the sanction of termination, and to have considered whether a lesser penalty would have been appropriate,” said the court. “It may be that if he had done so, he would have arrived at the same conclusion. However, in the absence of this type of assessment means that, in my view, the endorsement of the termination decision of the employer was made without the appropriate justification.”
The court found that the arbitrator’s decision to uphold Uprichard’s termination was not reasonable based on the factors considered.
It remitted the case back to the original arbitrator for further consideration.
For more information see:
• IBEW, Local 1620 v. Lower Churchill Transmission Construction Employers’ Assn. Inc., 2016 CarswellNfld 461 (N.L. T.D.).
