Was odour of pot a smoking gun?

Office found smelling of marijuana; employee was only one there

This instalment of You Make the Call features an employee who was accused of smoking marijuana on the job.

Keith Dale was a deep sea labourer primarily for Neptune Bulk Terminals, a cargo handling port company in Vancouver, and other companies in the British Columbia Maritime Employers Association. His duties included monitoring ship loading and fuelling in the dock office and keeping in contact with crews docked in the port.

On June 17, 2011, Dale was working in a dock office at one of Neptune’s berths in the port when a foreman entered the office. The foreman detected the “distinct and strong smell of marijuana” and reported that Dale didn’t respond to his initial greeting. After he did what he came to do in the office, the foreman called the head foreman for his opinion. When the head foreman arrived, he also smelled marijuana. Dale was alone in the office, so the head foreman asked Dale if he had been smoking marijuana in the office or anywhere else. Dale denied he had smoked any marijuana.

The head foreman told Dale to go home and Neptune would provide a cab for him, because they were concerned he was too intoxicated to drive. However, Dale didn’t wait for the cab and drove home, since he didn’t feel there was any reason he couldn’t drive.

Since Neptune was an industrial environment with potential dangers, the company had a zero tolerance policy for drugs and alcohol use by employees on duty. Dale was fired and reported to the association for suspected use of an intoxicant while on duty. The association also suspended Dale for 30 days and warned that any similar incidents in the future would result in “further disciplinary action, up to potential deregistration.”

The union filed a grievance, claiming there was no evidence Dale smoked marijuana while on duty. He continued to deny he smoked it on the day in question and showed no symptoms of being intoxicated. The only thing Neptune had to go on was the odour of what they thought was marijuana. It was also explained that the dock office sometimes stunk because of the presence of raccoons, skunks and geese onsite.

The association argued the foremen were confident they smelled marijuana and had no reason to lie. It also said Dale provided no plausible or reasonable explanation for the smell, which was easy to distinguish from the smells of animals. Given that smoking marijuana was serious misconduct in an industrial environment where “safety is paramount,” the association said it was appropriate to suspend Dale for 30 days.

You Make the Call

Was the suspension appropriate in such a safety-sensitive environment?

OR

Did the association need more to go on before issuing the suspension?

If you said the association needed more evidence to warrant a suspension, you’re right. The arbitrator found the foremen honestly believed they smelled marijuana in the dock office. However, they were not experts in identifying it, nor were they experts in determining if Dale was intoxicated. The arbitrator also found that Dale didn’t act suspicious, he simply denied smoking marijuana. There was no indication he tried to conceal anything or acted strangely, and he wasn’t asked to empty his pockets.

The arbitrator said it was possible the smell was not marijuana, or someone else nearby could have been smoking it, so there was no clear or cogent evidence that Dale in fact was guilty of the misconduct. As a result, there was insufficient evidence that Dale smoked marijuana on duty. The arbitrator ordered the association to rescind the suspension.

“The association’s evidence was circumstantial and there was simply insufficient corroborating evidence to support the foremen’s conclusion to the extent that the odour can be found to be of marijuana plus conclude that such odour can be attributed to (Dale) smoking marijuana in the dock office,” said the arbitrator. See British Columbia Maritime Employers Assn. v. I.L.W.U., 2012 CarswellBC 207 (B.C. Arb. Bd.).

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