Union argued search in worker's jacket breached privacy
Rebecca Haines was fired after being seen accepting a pill container filled with marijuana from a co-worker, while on duty at the Hartland, N.B., Old Dutch potato chip factory.
Linda Sarchfield, lead hand, was asked to search out workers who were willing to work overtime on Feb. 1, 2016. She went to the lunchroom to discuss it with whomever was on break at the time.
She noticed a worker, identified as “X,” sitting with Haines, and X handed over a white pill bottle, which Haines quickly pocketed.
Because she suspected the container may have contained marijuana or some other illicit substance, Sarchfield informed production supervisor Paul Grant of what she saw.
Sarchfield and Grant returned to the lunchroom and found it empty. Haines’ coat remained, so they searched it trying to find the white container.
Sarchfield found a Motrin pill bottl, containing a bag of marijuana.
It was confiscated and taken to Grant’s office.
On Feb. 9, human resources manager Sheila Broad called the Woodstock, N.B., RCMP detachment and reported the finding. A constable arrived and he appropriated the drugs, but no employee name was provided because Broad believed it was too small an amount to report.
The police officer later testified the drug’s chain of custody was compromised so it would be difficult to charge someone on hearsay and he was also concerned about the legality of how the drugs were discovered.
Broad then began an investigation by first speaking with X, who maintained the white object was a phone number written on a piece of paper.
When Haines was questioned, she denied the drugs in the pill bottle was hers but later said she had a medical marijuana authorization.
A document was produced as evidence but, according to the arbitrator, it was out of date.
On Feb. 10, Haines was presented with a letter of termination that said, “You were found to be in possession of illegal substance in the lunchroom. Please be advised your employment has been terminated as per the collective agreement.”
The employer argued Haines’ coat was in a public area and because it was suspected of containing illegal drugs, management had a reasonable right to search the coat.
In rejecting the argument, arbitrator Michel Doucet said there was no compelling issue that would necessitate a search of Haines personal property.
“I cannot conclude that this failure and the fact that she left her coat on a chair in the lunchroom constitute consent to search without prior notice. I believe that all employees retain a reasonable expectation of privacy and that in the absence of prior notice or of an established past practice or the existence of a provision in the collective agreement, the employer’s actions in doing so can be challenged.”
If the employer believed there were drugs present, it should have advised Haines before a search could happen, said Doucet.
And if she refused to allow a search, the RCMP should have been contacted at that point.
“The actions taken by the employer on the evening of Feb. 1, 2016, were in breach of the grievor’s privacy rights. In the future, the employer should be more careful in the manner in which they conduct such searches.”
But some of the blame for the incident was shifted to Haines, he said.
“Her evidence at the hearing was not convincing and in many regards was not forthright and lacked credibility. For example, she started off by alleging that the bottle of Motrin had been planted in her coat pocket, but latter on changed her argument and alleged instead that she was medically authorized to possess marijuana.”
The employer was ordered to reinstate Haines because it unwarrantedly conducted a search that breached her right to privacy.
But her behaviour during the investigation was cited when Doucet refused to order a recompense of any lost pay, benefits or seniority.
Reference: Old Dutch Foods and Unifor Local 2001. Michel Doucet — arbitrator. James LeMesurier for the employer.
Mike MacMullin for the employee. June 27, 2016.
