The grievor had purchased drugs on company property but not used them there. When confronted, he refused to sign a last chance agreement to save his job. He was fired. The arbitrator found termination to be an excessive penalty.
A warehouse worker was first suspended and then fired after he refused to sign a Last Chance Agreement following allegations that he had violated the employer’s workplace drug and alcohol policy.
The worker denied the allegations. The union grieved the termination.
P.H. worked at a warehouse/distribution centre operated by a national food retail chain. P.H. had six years’ service as a general warehouse worker when he was fired in February 2012.
The employer viewed P.H. as being in a position of trust and working in a safety-sensitive job. P.H.’s disciplinary record contained only a few written and oral warnings.
In 2011, the employer began to speculate that its workplace attendance problems were related to drug use.
The employer undertook an investigation beginning in August 2011. The police staked out the employee parking lot in January 2012.
Two workers were arrested on Jan. 24 and charged with possession and trafficking of cannabis and oxycontin.
Following the arrests, the employer suspended a number of employees — including P.H. — pending further investigation.
Employer refused to show evidence
Pursuant to its investigation, the employer interviewed P.H. on Jan. 24. The employer said that it was in possession of video evidence showing P.H. sitting in his car with one of the workers who had been arrested.
P.H. asked to see the footage. The employer declined.
P.H. denied that he had been using drugs on or near company property contrary to the employer’s Drug and Alcohol Policy.
P.H. also denied any knowledge about any trafficking activities engaged in by J.B. — one of the employees who had been arrested. J.B. was also an acquaintance of P.H.
On Feb. 7, 2012, the employer presented P.H. and the other employees who had been suspended with a Last Chance Agreement (LCA).
The employees who signed the LCA were permitted to return to work. P.H. refused to sign. On Feb. 15, he was fired for allegedly abandoning his employment.
J.B. was also fired. However, during the course of his stage-three grievance meeting, J.B. was induced to name names in exchange for a more favourable characterization of the terms of his dismissal on his Record of Employment.
J.B. implicated P.H. J.B. said that he sold P.H. three grams of marijuana on one occasion and that P.H. had said that he was buying the drugs for a friend. J.B.’s testimony was the only evidence against P.H.
The employer argued that P.H.’s termination was justified. It was established that P.H. was in a safety-sensitive job and that he was in a position of trust. The employer said that J.B.’s testimony was credible and that it established that P.H. had violated the employer’s workplace Drug and Alcohol Policy. The employer said that P.H.’s denials were not believable.
“Blackmailed”
The union said there was no clear evidence that P.H. had engaged in any misconduct at all. The fact that P.H. refused to sign the LCA meant nothing. He was within his rights to do so. The terms of the agreement were onerous and he was offended by the employer’s presumption. P.H. felt that he was being “blackmailed.” Moreover, the union said, the testimony against P.H. was clearly compromised by J.B.’s deal with the employer.
The Arbitrator accepted J.B.’s testimony. J.B. relentlessly stuck to his story and he betrayed no obvious malice towards P.H., the Arbitrator said.
The Arbitrator said that the employer had sufficiently made out its case that P.H. had violated its workplace Drug and Alcohol Policy.
However, the Arbitrator said that termination was excessive in the circumstances.
P.H. was a satisfactory employee with a reasonable amount of seniority.
In the circumstances, the Arbitrator was not prepared to conclude that P.H. “should be deprived of the opportunity to attempt to regain the trust of this employer… While nothing in this decision should be taken as conflicting with the employer’s desire to rid itself of drug dealing or to diminish what has occurred, the scale of the grievor’s participation was at the very low end and did not involve using drugs of any kind in the workplace.”
P.H. was ordered reinstated without loss of seniority. He was to be compensated for lost wages since Jan. 24, 2012 less wages representing a 60-day suspension.
