Employer dismissed grievance due to missing time limits
After he was seen smoking a marijuana joint while on the job, a worker on the Hebron oil field project was terminated after he refused to submit to a drug test.
Rodney Mitchell worked as a blower operator at the Bull Arm site in Trinity Bay, N.L., when on July 19, 2015, he was seen smoking a cigarette inside a vehicle.
He was escorted off site for violating a site absolute.
Mitchell immediately informed his union shop steward Glenn Saunders that he had a medical marijuana prescription and he wanted to fight his dismissal.
After the employer, Kiewit-Kvaerner Contractors (KKC), conducted an investigation of the incident, the site contractor Exxon Mobil Canada sent a letter on July 19 that said: “Company will deny access to the Bull Arm fabrication site by Rodney Mitchell for the remaining duration of the Hebron Project.”
Mitchell was then terminated via a July 30 letter.
On Sept. 30, KKC requested the union, International Union of Operating Engineers Local 904, refer a blower operator for the site.
After Mitchell was rejected due to his previous violation of a site absolute (violation of the substance abuse policy), the union filed two grievances alleging the contractor denied his right to employment and that it was “discriminating against the grievor by denying him the opportunity for an accommodation of his medical condition.”
The company denied the grievance on Oct. 26 and said the time limit of five days to file the initial claim were not met, which was expressly written into the collective agreement.
Article 14.10 stated: “Time limits are mandatory but may be adjusted by mutual agreement of the parties, evidenced in writing.”
But the union argued that the company’s past practice of trying to work out such matters before proceeding to the arbitration process amounted to it taking a liberal approach to the time limits.
And by discussing the issue of medical marijuana, it was taking a “fresh step” which reopened the issue, effectively moving forward the time limits. Mitchell’s doctor eventually sent a note confirming his prescription and Mitchell felt this was an indication from the company that it was continuing to consider him for future employment, thus extending the time limits.
Arbitrator James Oakley dismissed the grievance.
“The RDTC (Resource Development Trades Council of Newfoundland and Labrador) did not file the grievances within the time limit in step 1 of article 14.01. The time limit is mandatory. The parties did not mutually agree in writing to adjust the time limits under article 14.10. The parties did not mutually agree in writing to waive any part of the grievance and arbitration process under article 14.11,” said Oakley.
Despite how the employer operated in the past, the agreement always takes precedent, according to Oakley. “The HPEA (Hebron Project Employers’ Association) is not prevented by past practice, or by its actions in relation to this case, from relying upon the time limit objection, by operation of waiver, estoppel or any other ground.
“Also, there was no evidence of a consistent past practice to disregard time limits. There was evidence that the HPEA has raised time limit objections to other grievances,” said Oakley.
Reference: Hebron Project Employers’ Association and Resource Development Trades Council of Newfoundland and Labrador. James Oakley — arbitrator. Darren Stratton for the employer. Timothy Morris and Harry Mugford for the employee. Feb. 27, 2017.
