Ordering drug test OK; dismissal after positive test not

Test didn't prove worker was intoxicated at work

An arbitrator has determined the Canadian Pacific Railway (CP Rail) was entitled to order a substance test of a worker following an incident for which the worker wasn’t at fault, but shouldn’t have dismissed the worker after he tested positive for marijuana.

Ron Schotts, 50, was a locomotive engineer for CP Rail in Cranbrook, B.C. Through 29 years of service with CP Rail, Schotts had one instance of discipline on his record — a violation of one of the railway’s cardinal rules in December 2011.

On Dec. 4, 2013, Schotts and a conductor with whom he was crewed were assigned to a train in the morning. They attended a job briefing and took a cab to meet the train. After receiving a radio message as to what track the train was on, they boarded the train. However, their paperwork didn’t match the train and asked a clerk about the lead locomotive numbers. The clerk told them they had been issued the wrong locomotive numbers but they were on the right train.

Unfortunately, the clerk was wrong, but since both trains had the same amount of cars, Schotts and his conductor believed the clerk. Before they left, they checked again with the clerk, who once again mistakenly confirmed they were on the right train. They tried three times to contact a depot to clarify things, but they weren’t successful.

The crew contacted train control and advised of the new lead locomotive number, after which they received clearance to depart. However, the train they were on was carrying dangerous commodities for which they didn’t have the proper paperwork.

CP Rail eventually determined the crew was on the wrong train and they were removed and sent for substance testing. The basis for the testing was that Schotts and his conductor were transporting dangerous commodities without their knowledge or proper documentation.

CP Rail’s drug and alcohol procedures required testing after an incident or “any other significant work incident/accident or a near miss which indicated a serious lack of judgment or unexplained human response on the part of the employee involved that had significant potential for more serious consequences.” The procedures also stated testing is not justified if “the act or omission of the individual could not have been a contributing factor to the incident.”

Schotts’ test was negative for everything except a positive urine drug test. Schotts explained he had consumed “one inhalation of marijuana” the day before, about 20 hours before his shift.

CP Rail’s investigation determined that Schotts’ behaviour under the circumstances was not culpable and he had performed his duties in a professional manner. Therefore, he wasn’t disciplined for the incident. However, after the positive urine test for marijuana, the railway dismissed him effective Jan. 3, 2014, for “conduct unbecoming an employee of Canadian Pacific.”

The arbitrator found the situation could be considered a significant incident, since Schotts and his conductor were transporting dangerous commodities without proper documentation and without knowing it. At the time CP Rail discovered the mistake and removed the crew from the train, it could not have known Schotts’ conduct didn’t contribute to the situation — this was only established after the investigation. Since time is of utmost importance in substance testing, it was reasonable to send Schotts for immediate testing before he was excluded as a possible contributor to the incident, said the arbitrator.

The arbitrator also found Schotts worked in a safety sensitive position where it was essential he not be impaired while at work. However, it was well established that a positive drug test — particularly a urine test showing marijuana — does not establish impairment while on duty. Traces of marijuana can stay in the system for some time and can only show past use, not current impairment, and Schotts admitted to smoking marijuana the day before, which would explain the test result, said the arbitrator.

The arbitrator also gave credit to Schotts for saying after the investigation that he would not use marijuana again in any circumstances while working for CP Rail. He also attended an addiction services centre after his termination, which determined he had “a low probability of having a substance dependence disorder,” and Narcotics Anonymous meetings.

The arbitrator found there was no misconduct by Schotts and ordered CP Rail to reinstate him with compensation for lost wages and benefits. See Canadian Pacific Railway and Teamsters Canada Rail Conference (Schotts), Re, 2015 CarswellNat 750 (Can. R.O.A.).

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