Vaping allowed but not before operating machines
During a trip in Saskatchewan from Kindersley to Humboldt, a labourer for the town vaped medical marijuana multiple times while seated behind the wheel.
Jesse Desjarlais had worked at the Town of Kindersley recreation department as a labourer since September 2013, when on April 1, 2016, he and two colleagues, Victor Constantino and Jerson Pacis, signed out a town SUV and headed out to Humboldt for a week of training courses.
Because he was most familiar with the route, Desjarlais drove. But within five minutes, Pacis noticed the smell of marijuana inside the vehicle. Constantino testified he heard the vaping machine’s distinctive beeping sound.
Desjarlais had been prescribed medical marijuana for headaches and this was known by his employer. But, “he is not to operate the Zamboni, forklift or lawn mower for a 20- to 30-minute time after vaporization,” said a July 15, 2015, letter provided by his doctor.
Desjarlais testified that he didn’t smoke marijuana as many times as Constantino and Pacis claimed. He said he tried to do so during a stop in Saskatoon, but he wasn’t feeling well so he didn’t continue.
For the rest of the week, Desjarlais continued to vape marijuana while driving to the course location in Humboldt from their hotel, according to Constantino and Pacis. Desjarlais also vaped on the return trip home to Kindersley on Friday, they said.
During the week in Humboldt, Desjarlais made a post on Facebook, that highlighted his loneliness: “Thought it would be a good week but they stick together and I’m left eating all meals alone and just sitting (in) my room.”
However, he removed the post after about 20 minutes and said he didn’t mean to cause any harm.
Some of Constantino’s friends alerted him to the post, which caused him to tell management about the vaping during the trip.
On April 29, 2016, management held a meeting to discuss what allegedly took place in Humboldt, and Desjarlais was subsequently terminated during a meeting on May 10.
“Your actions were a serious, willful contravention of the Criminal Code of Canada whereby your deliberate actions put yourself and others at increased risk of death or serious injury. For these reasons, it is our position that immediate dismissal is the appropriate disciplinary measure to take for these violations,” said the letter of dismissal.
The union, Canadian Union of Public Employees (CUPE), Local 2740, grieved the firing on May 12 and argued the charges were “without just cause and proof of their allegations.”
Arbitrator William Hood (and employer-nominee board member Kevin Wilson) dismissed the grievance. “(Desjarlais) brought the marijuana on the Humboldt trip to use it in the manner he did. This does not mean he should be deprived of using marijuana for the medical purpose intended. There is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving and having the care and control of the town vehicle, or riding in the town vehicle.”
Desjarlais’ actions constituted a “serious misconduct,” said Hood, and the employer did not infringe upon his accommodation rights. “The accommodation required (Desjarlais) not to mix marijuana with operating motorized equipment. It is the mixing of the use of marijuana with the operation of the town vehicle that is the misconduct leading to termination.”
But Andrew Huculak, nominee for the union, disagreed and found inconsistencies with the testimony of Constantino and Pacis. “One co-worker, who occupied the passenger seat most of the time while the grievor was driving, said he never saw the single-use vaporizer being loaded in the vehicle. He then admitted he never saw it being loaded at all. The other co-worker also said he never saw it being loaded.”
And the reasoning for their disclosure to management was dubious, said Huculak.
“They retaliated against the author for his Facebook post, exaggerating or, at best, misunderstanding what they saw of his medical marijuana use during the trip to Humboldt.”
Reference: The Town of Kindersley and Canadian Union of Public Employees, Local 2740. William Hood — arbitrator. Heather MacMillan-Brown for the employer. Janice Janzen for the employee. April 18, 2018.
