B.C. arbitrator awards pot-smoking miner his job back

Company had zero-tolerance policy, but arbitrator said company can take steps to accommodate worker

The British Columbia Arbitration Board has reinstated a worker fired for smoking marijuana at his job site and set the conditions under which he can return to work.

In August, 2004 Mark Gardiner was fired from his job at the Kemess copper and gold mine in northern British Columbia. He had been smoking marijuana in his room at the mine, contrary to the company’s zero-tolerance policy for possessing and consuming drugs or alcohol on site.

Gardiner’s union filed a grievance. It claimed the dismissal violated s. 13 of the province’s Human Rights Code, which prohibits an employer from firing a worker because of a disability — in this case a marijuana dependency.

The company argued this was a simple case of culpable misconduct — Gardiner was fired for violating the drug policy. The company was extremely safety-sensitive and the open-pit mine was governed by the Mines Safety Code, which prohibits the possession of intoxicating substances in or about a mine. To comply with the law, and deter other workers, the company must be able to terminate an employee who violates the drug policy.

Kemess claimed it satisfied its duty to accommodate employees by making its drug policy as narrow and unintrusive as possible. It only applied at the mine site and there was a counselling program available to workers with drug and alcohol abuse problems.

The mine is in a remote part of the province. Workers are flown in and out in two week cycles, living in trailers on the site while at work.

The company had repeatedly told employees that violation of its drug and alcohol policy would result in dismissal.

Gardiner, 37, testified he started smoking marijuana at age 12. He said he smoked three or four times every day and had been doing it for all six years of his work at Kemess.

He said smoking pot had become part of his life and he couldn’t function normally without it. Gardiner said he was aware of the company’s zero-tolerance policy and its counselling program but he didn’t think he would ever get caught.

The board accepted a doctor’s testimony that Gardiner was addicted to marijuana. There was a dispute, however, on how compulsive Gardiner’s marijuana usage was and to what extent it rendered him unable to make choices as to its usage.

This was a vital issue, as employment law has evolved to the current view that discipline is inappropriate when there is no blameworthy conduct on the part of the worker.

The board ruled Gardiner was not in a state of utterly irresistible compulsion, but that his choices were influenced by his addiction. As such his misconduct had culpable and non-culpable elements.

The board acknowledged the company’s requirement for safety and its argument that it needs to deter others from violating its drug policy. But ultimately it ruled the company’s legitimate interests could be accommodated without firing Gardiner.

The board reinstated Gardiner and suspended him for 10 months instead, subject to the following conditions. He must:

•complete a minimum four-week stay at a facility which treats chemical dependency;

•attend at least three Narcotics Anonymous meetings per week until he returns to active service, and then for 24 months afterward;

•completely abstain from marijuana, any alcohol or mood-altering drugs (unless prescribed by a physician);

•consent to the company’s conducting random searches of his room for 12 months after resuming active service.

The board ruled, furthermore, that the period between date of dismissal and return to active service was to be considered a disciplinary suspension. Gardiner would not receive pay or benefits, but there was to be no loss of seniority.

For more information see:

Kemess Mines Ltd. v. I.U.O.E., Local 115, 2005 CarswellBC 2368, 139 L.A.C. (4th) 305 (B.C. Arb. Bd.)

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