The grevor was terminated when he was found at work with drugs. At arbitration, he claimed he was addicted. The arbitrator could not find sufficient evidence to support the claim, despite the diagnosis of the grievor's physician.
Arrested while at work and charged with marijuana possession, a municipal worker was fired for violating the employer’s Code of Conduct.
The union grieved the termination. The union said the worker was suffering from an addiction and the employer’s actions discriminated against the worker on the basis of a disability contrary to the Human Rights Code.
C.L. began working for a municipality in 1987. On Oct. 9, 2008 he was arrested at work and charged with two counts of possession of cannabis resin for the purpose of trafficking and one count of simple possession.
C.L. was immediately placed on investigatory leave. Two weeks later, accompanied by his union representative, C.L. met with the representatives of the employer. C.L. claimed he had an addiction to marijuana and he intended to go into drug rehab.
C.L. was fired.
By his actions, he had placed himself, his coworkers, the public and the City at considerable risk of harm. He had caused an irreparable breach of the employment relationship, the employer said.
Evidence of addiction required
Unless C.L. could establish evidence of his addiction, the termination would stand, the Arbitrator said. The Arbitrator acknowledged C.L.’s long service but said the recklessness of his actions overrode any other consideration that could be brought to bear to mitigate the penalty of discharge in the circumstances.
The onus of proving his addiction was on C.L.
A mental health counselor testified on C.L.’s behalf. However, the value of her testimony was limited in view of her role as an advocate for C.L. and the fact she lacked the medical qualifications to diagnose addiction. Nevertheless, based on her observations and on tests C.L. completed, it was her conclusion that C.L. was addicted to marijuana.
A medical doctor with a practice focused on the treatment of addiction testified as an expert witness. He too said that C.L. was addicted. Based on tests C.L. took and his self-reporting, the doctor concluded C.L. met the criteria for a DSM-IV diagnosis for alcohol and marijuana dependence.
A forensic psychiatrist testified as an expert witness on behalf of the employer. The psychiatrist did not question the diagnosis of the medical doctor per se, however, questions were raised about the process used to arrive at the diagnosis.
In particular, the absence of “validating indices” in the tests administered to C.L. meant there was no way to independently assess the truth of his self-reported claims about his drug use.
Story changed
It is possible to conduct after-the-fact assessments to determine the veracity of self-reported claims about substance use. However, to do so it is necessary to corroborate such claims with peers, friends, coworkers and family members. This was not done.
The main source of information about C.L.’s drug use came from C.L. himself — and his story changed. Initially, C.L. told the employer no one at work was aware of his drug use. He told the employer he went in secret to the woods when he needed to smoke. Later, C.L. testified he smoked joints at work the way others smoked cigarettes. He said he always had a “big hunk of weed or hash” in his lunch pail and he would roll his joints in front of everyone.
“Which story is to be believed? In making that determination, one of the factors that has to be considered is that the version given at the [initial] interview would not be helpful to the grievor’s claim of a drug addiction. His evidence at the hearing, on the other hand, would obviously bolster his claim,” the arbitrator said.
No employees were called to testify on C.L.’s behalf to support his claims about his drug use at work. The one employee who did testify said when he once confronted C.L. about leaving marijuana traces in a truck, C.L. said the lapse was a fluke and he only smoked on weekends.
Unusual situation
There was a similar lack of corroborating testimony from anyone in C.L.’s network from outside of work to support his claims of ubiquitous drug use.
“I acknowledge that this is an unusual situation. The evidence of [the medical doctor] based on the self-reporting of the grievor is that the grievor was suffering from a drug addiction. I have no reason to quarrel with the diagnosis of [the doctor] who appropriately based his diagnosis on what the grievor told him. However, I have facts and evidence before me that [the doctor] did not,” the arbitrator said.
C.L. told the employer he had made an appointment at an addiction treatment facility but he did not keep that appointment, the arbitrator said.
“Had he attended, and had he given the Employer medical evidence of an addiction, even if he had already been discharged, it is reasonable to believe that the outcome of this matter could have turned out differently. Unfortunately, at no time prior to the hearing was any expert medical evidence tendered.”
The evidence did not support C.L.’s claims of addiction, the arbitrator said.
The grievance was dismissed
