The grievor could prove that he was making serious efforts to break his marijuana dependency and the Arbitrator found he deserved reinstatement with conditions.
A worker was fired after he was discovered smoking marijuana during a work break. The union grieved.
A.W. worked as a Go Packer at an insulation manufacturing company. A.W. worked in close proximity to numerous industrial machines. His job was considered safety-sensitive. He had three and one-half years’ service when he was fired in February 2011.
At about 2 a.m. during the night shift on Feb. 3, 2001, A.W. was taking a break outside smoking. A supervisor approached and asked A.W. what he was doing. When A.W. replied that he was smoking a cigarette, the supervisor replied that it smelled like “weed.” A.W. offered no denial and said, “Do you think so?”
The supervisor told A.W. to go back inside.
A.W. returned to working. About 10 minutes later, the supervisor, and another supervisor, observed A.W. working for a few minutes. A few minutes after that a union official relieved A.W. of his duties.
At a meeting the next day, A.W. was informed he was being terminated for smoking marijuana on company premises. A.W. apologized. He admitted to smoking marijuana a few times in the parking lot. He said he used marijuana to combat stress and he had developed a dependency. He said if the company would reconsider his termination, he would take whatever steps necessary to change his behaviour.
Zero tolerance
A.W. was fired. The letter of termination said A.W.’s conduct was a serious breach of the company’s policy against drug use at the workplace. The letter said A.W. was aware of the policy and that the termination was final.
Before the Arbitrator, the company argued A.W.’s actions amounted to serious misconduct. He knew the policy and he ignored it. A.W. chose to get high and then return to work, endangering himself and his co-workers. A.W. worked in a safety-sensitive job. The termination must be upheld the employer said, for it to meet its obligations under the Occupational Health and Safety Act to provide a safe work environment and to provide a proper deterrent against drug use in the workplace.
The union acknowledged the seriousness of A.W.’s offence in an industrial setting. However, the union said, in such circumstances the degree of a worker’s impairment is often taken into account in determining the appropriate measure of discipline.
In this case there was no manifest evidence of impairment. In fact, the supervisor sent A. W. back to work after discovering him smoking a joint outside. Obviously, the company did not consider him to be a particular threat to safety at that moment, the union said.
Battling demons
The evidence showed A.W. had undergone treatment for his marijuana dependency beginning in 1999. A.W. had suffered a relapse but he was not presenting himself as someone who was cured of his dependency but, rather, as someone who is “battling his demons and wishes to continue battling his demons.”
The union acknowledged the company’s generous offer to A.W. that he be allowed to access the company’s Employee Assistance Program for a time after his termination. A.W. had used it.
A.W. was open and candid about his problems. He had taken ownership of his mistake and was truly contrite. A.W. was willing to submit to workplace drug testing in future to prove his abstinence. A.W. was motivated to rehabilitate himself and, as the father of eight children, his compelling economic and personal circumstances warranted giving him another chance.
The Arbitrator agreed.
The company’s concern that A.W. presented a safety threat was not apparent when the incident occurred, the Arbitrator said. The concern about the safety implications of A.W.’s actions only surfaced at the arbitration hearing.
The Arbitrator was sympathetic to the employer’s interest in upholding the termination in order to maintain a deterrent to drug use in the workplace. However, the company submitted no evidence to show drug use was a particular concern at the workplace and, in any event, there was evidence to show that lengthy suspensions serve equally well as a deterrent.
When confronted about his drug use, A.W. did not dissemble. “He admitted his misconduct, unequivocally,” the Arbitrator said.
Potential for rehabilitation
A.W. had apologized and his apology indicated a sincere recognition of the impropriety of his behaviour. “I am of the opinion that this goes a long way to illustrate his potential for rehabilitation,” the Arbitrator said.
The record showed A.W. suffered from a marijuana dependency and he had been undergoing treatment on and off for a number of years.
Since his termination, he had availed himself of all the treatment options he had access to and his last two drug tests showed he was clean, the Arbitrator said.
“[A.W.] made a commitment to himself and his family that he would never in the future jeopardize their well being or his ability to provide for them. It is my view that his willingness to subject himself to random drug testing confirms his commitment to refrain from drug use.
“[A.W.’s] personal circumstances invoke a considerable amount of sympathy. One could not listen to his story and be anything but touched by his state of affairs. That is not to say, that severe economic hardship alone would be enough to mitigate against a discharge for misconduct. However, when added to the mitigating factors set out before it does, in my view, tip the balance in favour of relieving against the penalty of discharge.”
The termination was set aside in favour of a four-month suspension. A.W. was returned to his job conditional on his submitting to a regime of random drug testing and continued treatment.
