The grievor was terminated for having drugs at work. He was not impaired. The arbitrator found that the grievor's 21 years of service had created a "trust equity" and reinstated him with a long, unpaid suspension.
A hotel restaurant worker was fired for violations of the employer’s “Drug Free Workplace Policy” following an undercover investigation.
C.P. worked as a server in a hotel restaurant. He had 21 years’ service when he was fired, along with a number of other workers, on April 10, 2010.
Evidence gathered during the investigation documented three instances where C.P. was in possession of drugs while at work.
On Jan. 28, 2009, C.P. signed off on the company’s Drug Free Workplace Policy. The policy prohibited employees from possessing, using, distributing, buying or selling illegal drugs, inhalants or other controlled substances on hotel property.
On April 10, 2010, C.P. was removed from the workplace and taken to a sub-basement room in the hotel along with a number of other employees. A police officer was present.
C.P. was fired. The union grieved.
Trust equity
The union argued termination for a policy violation was not reasonable in this case. The union acknowledged there were instances where C.P. was in possession of marijuana and hashish while on company property. However, he did not either smoke it or sell it while on duty. He was forthright and candid when confronted. He was contrite in the aftermath. He had 21 years’ service and, therefore, had built up considerable “trust equity.” The union appreciated the seriousness C.P.’s offence but said a suspension was a more appropriate penalty.
The employer said the termination was warranted. C.P. had engaged in a pattern of serious misconduct. He had a sense of entitlement and the nature of his offence signaled a casual attitude towards the goal of a drug-free workplace. This attitude, the employer said, undermined the potential for rehabilitation. The employer also said the union’s pitch for the value of C.P.’s “trust equity” was oversold. It was true C.P. had 21 years’ service. However, in view of the collective agreement’s two-year sunset clause on discipline, all that could be said was C.P. had not been disciplined within the last two years, the employer said.
Serious misconduct
C.P. repeatedly violated the company’s rule against being in possession of drugs while in the workplace, the Arbitrator said. This was serious misconduct and an offence that indicated a cavalier attitude towards the company’s drug-free workplace policy. A significant penalty was warranted, the Arbitrator said.
“However, possessing drugs in the workplace is not usually as serious an offence as consuming them because there will be no effect on the grievor’s performance nor any health and safety consequences. It is also not as serious as selling them. Nevertheless, repeatedly possessing drugs in the workplace is a very serious breach of company policy.”
There were mitigating factors to consider, the Arbitrator said, most notably, C.P.’s long service. C.P. could count some trust equity — even if he could not lay claim to a 21-year discipline-free record.
It was also true C.P.’s failure to apologize until the arbitration somewhat diminished the mitigating value of his contrition.
Nevertheless, the Arbitrator said the employment relationship had not been irretrievably damaged.
“The grievor appears to have learned from his mistakes and is unlikely to commit a further offence. He should be given another chance. However, the grievor is not entitled to any back pay and the time he has been off work since the discharge will be recorded as a suspension to reflect the seriousness of the misconduct. The suspension will remain on his record unless and until it is removed under the sunset clause. A suspension of that magnitude on the grievor’s record demonstrates that he is being given a ‘last chance’ and any further misconduct is likely to lead to a termination from which he would not be reinstated. The length of that suspension and the loss of two years’ pay is also a significant deterrent to any other employee who may be tempted to violate the company’s drug free workplace policy.”
The employer was ordered to reinstate C.P. to his former position.
