Worker denied drug was his but his story was suspect
This instalment of You Make the Call features a bus driver who was fired for possessing marijuana on board a company bus.
Mark Richards, 57, was a motor coach driver for Great Canadian Coaches, a motor coach company based in Kitchener, Ont. Richards was hired in the summer of 2010 and in October 2011, began an assignment in which he drove on a “line run” — a route for a client in which he picked up passengers between Hamilton and Brantford and drove them to the client’s place of business. He also returned the passengers later, which usually required multiple runs to both cities over the course of a day.
On Oct. 19, 2011, Richards finished a run to the client’s business and, after the passengers left the bus, he claimed he noticed a bag on the floor. He picked up the bag and smelled it, realizing there was marijuana inside. Richards testified he put the bag in his pocket with the intention of disposing it along the side of the highway, the same way he disposed of alcohol he found on board.
Richards testified he didn’t tell Great Canadian about the marijuana because he was afraid of what might happen, such as losing his job. He figured it was easy to simply throw it away, particularly because it was a small amount and he claimed there were no trash cans available at the client’s business. Great Canadian didn’t have a procedure for employees who found drugs on a bus, but other drivers had contacted the company for instructions in similar situations.
However, Richards seemed to have forgotten the bag was in his pocket, as he didn’t dispose of it. He went into the client’s business to pass the time until his next run, and the bag fell out of his pocket. He didn’t notice but when others saw it the police were called. Richards wasn’t charged because the amount was of marijuana was very small.
A little later, passengers were boarding the bus to go back to their point of origin and a manager of the client company told everyone to disembark from the bus. He told Richards to stay in the lobby to wait for someone from Great Canadian to arrive. Richards didn’t know what was going on and, according to the manager, Richards followed him, asking questions. Richards denied this and testified he remained in the lobby. The client also told Great Canadian it didn’t want Richards driving its customers.
Great Canadian’s operations manager arrived with another bus driver and told Richards in a loud and angry voice, in the presence of the other driver, that Richards was fired because of drugs. They got off the bus and the other driver took over the run. Richards testified he tried to “tell everyone” why he had marijuana but no-one would listen.
The operations manager drove Richards home and there was no discussion in the car. When they arrived, the operations manager told Richards he would contact him later. However, there was no further contact and Richards’ employment was terminated. The company had a zero-tolerance policy regarding illegal drugs in the workplace, particularly since drivers worked without direct supervision and were responsible for the safety of passengers.
Richards was unable to pay his bills and lost his apartment without the income from his job. His employment insurance was delayed because Great Canadian sent his record of employment (ROE) to his previous address. Richards eventually was admitted to a psychiatric facility with post-traumatic stress disorder, though he had suffered from depression before his dismissal.
You Make the Call
Did the employer have just cause for dismissal?
Was Richards wrongfully dismissed?
IF YOU SAID Richards was wrongfully dismissed, you’re right. Though Great Canadian had a zero-tolerance policy on drugs in the workplace, Richards wasn’t asked for an explanation, the operations manager humiliated Richards in front of another driver, and he told Richards he would contact him but he didn’t, said the adjudicator.
The adjudicator found Richards’ account lacked credibility as Richards didn’t seem to feel any urgency to get rid of the marijuana and kept it in his pocket. It was difficult to believe there were no trash cans or other receptacles nearby and he was waiting to throw it away on the highway. In addition, Richards claimed to not know what was going on but then said he tried to tell everyone what had happened.
However, the adjudicator found that whether the marijuana was really Richards’ or not, it was unlikely he intended to bring it to work, particularly since it was a small amount. Possession of marijuana while on duty in a safety sensitive position was grounds for discipline, but the adjudicator determined Great Canadian did not have just cause for dismissal. Even though the client didn’t want Richards driving its passengers, Great Canadian had other runs Richards could drive, said the adjudicator. Also, Great Canadian didn’t provide its drivers with guidance on dealing with drugs and alcohol on a bus.The adjudicator found a suspension of two weeks to one month would have been appropriate. With Richards’ relatively short term of employment, Great Canadian was ordered to pay him the minimum compensation provided for in the Canada Labour Code — two weeks’ pay and five days of severance pay. The company was also ordered to pay $1,000 for its bad faith in the manner of dismissal, due to its lack of follow-up communication and failure to allow Richards to give his side of the story. See Richards and Great Canadian Coaches Inc., Re, 2014 CarswellNat 6433 (Can. Labour Code Adj.).