Collective agreement stipulated testing after incident
After falling into a trench on top of another worker, Jamie Petraschuk was ordered by his employer to test for the presence of marijuana in his system.
He was found to have a higher level of the drug than was allowed in the collective agreement. A safety committee at Epcor Utilities in
Edmonton then ruled Petraschuk should be given a five-day suspension for a violation of the drug and alcohol policy.
But after an Epcor Utilities vice-president heard about the test results, he ordered Petraschuk to be terminated.
On May 21, 2012, Petraschuk was part of a three-person crew working above a trench eight- or nine-feet deep. Shane Moore was standing at the bottom of the trench when he passed a grinder guard up to Petraschuk to replace it, as Moore could not do so in the tight confines of the trench.
When attempting to dislodge the grinder guard, Petraschuk suddenly fell into the trench on top of Moore.
Both immediately left the trench to shake off the incident. An incident report was prepared and Petraschuk continued working for the rest of the day.
Moore sustained minor back and neck injuries as a result of the incident and was put on modified work duties.
At the end of the shift, Petraschuk was given a drug test and it came back indicating a positive result. He was advised to take a few days off and speak with a substance abuse professional about why he had been using marijuana recreationally.
On June 18, Petraschuk was terminated.
The union argued that a drug and alcohol policy was added to the collective agreement unilaterally in 2010 and it was not approved by the union. It said the vague wording calling for post-incident testing constituted a constant threat of random testing, which had been rejected by the Supreme Court of Canada.
As well, the union said because a full investigation as to possible causes of the incident was not completed, it was unfair of the employer to jump straight to a test. It said the test request was an assault on Petraschuk’s privacy rights.
And the fact Petraschuk finished the shift and operated a backhoe to fill in the trench meant that Epcor had no reason to believe he was intoxicated in any way.
In rejecting the union’s argument that the amended policy was not agreed to by the union, arbitrator David Tettensor said the collective agreement plainly states the employer and the union agreed to the amended memorandum.
“There was no evidence introduced to support an argument that the language is ambiguous,” said Tettensor .
Susan Ancel, director of water distribution and transmission at Epcor, was the supervisor who ordered the drug test to be administered. Tettensor ruled the circumstances of the incident constituted a reasonable assumption of possible intoxication.
“Ancel reasonably concluded that the act of the griever kneeling at the top of the trench and putting pressure on the equipment over the side of the trench was an act that contributed to the incident. In these circumstances, it was reasonable to conclude it was necessary to move to the next step and explore whether this incident was caused by the grievor’s impairment,” said Tettensor .
But the decision to terminate was too harsh. “While I accept the employer must foster, sustain and monitor a safe work environment, I am not satisfied that it is reasonable to apply a zero-tolerance approach to all cases involving recreational use, regardless of other circumstances,” h e said.
The grievance was upheld as Tettensor ruled the employer-employee relationship was not permanently damaged and Petraschuk was entitled to return to work for Epcor.
“I believe the grievor understands he made a serious mistake and like the substance abuse professional, I believe he understands what is necessary to work in a safety-sensitive position with the employer. I am also of the view that discipline short of termination could provide effective deterrence.”
Reference: Epcor Utilities and Canadian Union Of Public Employees, Local 30. David Tettensor — arbitrator. Craig Neuman for the employer. John Carpenter for the employee. Sept. 5, 2016
