Inadequate sample treated as drug test refusal

Greyhound bus driver fired for refusing to follow process set out by alcohol and drug policy

Firing a bus driver with 17 years of service for refusing to comply with an alcohol and drug policy was too harsh, the Canada Arbitration Board has ruled.

Hugh Nicholls was a bus driver for the Edmonton branch of Greyhound Canada. He was a spareboard operator, a driver who would be called in on a shift-by-shift basis rather than regular scheduled shifts.

Because Greyhound operated routes to the United States, it was required to meet U.S. legislation in order to keep its operating license in that country. This included having an alcohol and drug program which featured random testing of employees in safety sensitive positions. If Greyhound didn’t meet this requirement, its license to operate cross-border runs would be jeopardized.

On Oct. 31, 2005, Nicholls was assigned to drive the Edmonton-to-Jasper, Alta., run, which would have him leave Edmonton at 8 p.m. and arrive back at 8 a.m. the next morning. When he arrived back in Edmonton, Greyhound informed him he had been selected for a random drug test under the policy and he was to report to the testing laboratory at 9:30 am. Nicholls did so and provided a 30 ml urine sample. However, U.S. regulations require a 45 ml sample. When a larger sample was requested, Nicholls said he couldn’t provide one and didn’t want to stay as he was tired from his shift and wanted to go home. The discussion grew heated and Nicholls left without providing the required sample.

On Nov. 2, 2005, Nicholls met with his managers and they told him his insufficient sample was considered equivalent to a refusal and his departure from the lab was considered the same as a positive test under the policy. This meant he would be required to meet with a substance abuse professional, though it was made clear there was no allegation of drug use and it was just part of the process. However, Nicholls said he wouldn’t see a substance abuse professional as it could stain his reputation. Management informed him he couldn’t return to driving duty until he followed through with the process as dictated by the policy.

On Nov. 3, Nicholls filed a grievance claiming the collective agreement and his human rights were breached because he was removed from his position without an investigation or a written statement of the charges and discipline. Greyhound responded with a letter stating his driving privileges were rescinded until he met the requirements of the policy and encouraging him to do so.

On Dec. 2, Greyhound said if he refused to comply with the policy by meeting with a substance abuse professional, it would be considered insubordination and he would be disciplined with possible termination. This was reiterated in a Dec. 20 meeting where Nicholls was again urged to meet with a substance abuse professional. After two months trying to resolve the process, Greyhound issued a letter to Nicholls dated Jan. 6, 2006, saying it considered him to have abandoned his position, his refusal to comply with the policy was insubordination and his employment was terminated. The arbitrator found Nicholls was familiar with Greyhound’s policy, having received training and a handbook in 1996 which he acknowledged having reviewed and understood. The handbook clearly described what constituted a refusal and what the consequences were. This provided proper notice of the policy and the consequences of not following it.

The arbitrator agreed Nicholls’ concern about the negative effects an evaluation by a substance abuse professional could have on his professional and personal reputation was valid, but his “stubborn and dismissive attitude” prevented resolution of the problem and his continued refusal to comply with the policy was insubordinate.

However, the arbitrator considered Nicholls’ 17 years with Greyhound and determined termination was too extreme of a penalty.

“These proceedings have given (him) full opportunity to understand (Greyhound’s) policy and the position it was in under the regulations,” the arbitrator said. The arbitrator ruled a suspension was appropriate and set it from the date of his termination until 60 days after the judgment. However, the arbitrator stipulated if he still hadn’t complied with the policy by the end of his suspension, he would be terminated.

For more information see:

Greyhound Canada Transportation Corp. v. A.T.U., Local 1374, 2007 CarswellNat 678 (Can. Arb. Bd.).

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