'The entire point is to take precautions against the as-yet unknown'
An arbitrator has upheld the suspension and dismissal of an Ontario gold mine worker who tested positive for cannabis use following a serious workplace incident and a return-to-work test.
The case was a “classic face-off” between the health-and-safety obligations of a safety-sensitive employer and the personal rights of an employee to engage in off-duty conduct such as recreational cannabis use, according to Lorenzo Lisi, leader of the workplace law group at Aird & Berlis in Toronto.
“It highlights the importance of everybody showing up for work without being impaired, because that could affect other employees and the general public,” says Lisi.
The worker was employed with Newmont-Goldcorp Canada (NGC) at its gold mine near Timmins, Ont., since 2007.
NGC had a drug and alcohol policy that prohibited anyone from using drugs and alcohol or reporting for work under the influence of drugs or alcohol.
Testing required after serious incident
The policy required testing after a “serious or high potential incident,” unless there was immediate evidence that other factors unrelated to the acts of employees were the sole cause. Such incidents were defined as causing a fatality, serious injury, a harmful environmental incident, or serious loss or damage to property, equipment, or vehicles. Testing could also be required if a preliminary investigation pointed to alcohol or drug use as a possible factor.
The policy stipulated that employees who tested positive and were allowed to continue their employment would have to pass another test before returning to work and be subject to unannounced random testing.
On Sept. 27, 2021, the worker was driving an articulated lubetruck at the mine when hot coffee spilled on his leg. The worker reacted and the lubetruck struck a berm, damaging the rear end of the truck. Afterwards, supervisors observed that the worker’s speech was rapid, he was hyperactive and crying, and he was shaking. NGC required the worker to undergo a post-incident drug and alcohol test and he tested positive for THC, the intoxicating metabolite in cannabis.
The worker acknowledged that he had consumed cannabis about 12 hours before his shift. He was suspended for 40 hours for violating the drug and alcohol policy. NGC also required him to enter into a last-chance agreement (LCA) under which he had to take a return-to-work test and submit to random testing for one year. The LCA also stated that an arbitrator would be restricted to determining only if the agreement was violated and, if so, they would not have jurisdiction to substitute a lesser penalty.
The union grieved the policy and the fact that the worker had to submit to post-incident testing. It argued that the policy didn’t adequately balance the company’s interests with interfering with the employee’s privacy and recreational consumption of marijuana.
The union also claimed that it wasn’t a serious incident that caused much damage, but NGC pointed out that repairing the lubetruck cost $60,000.
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Second positive test
On Nov. 4, the worker tested positive for cannabis on his return-to-work test – he had consumed it about 24 hours before his scheduled return to work. On Nov. 10, NGC terminated his employment for breaching the LCA in a “blatant disregard” for it and the policy.
The union grieved the termination, arguing that there is no test to establish whether a person is functionally impaired from cannabis and the policy didn’t provide any clear guidance as to when employees could use the drug recreationally.
The arbitrator noted that a unilateral policy must be consistent with the collective agreement and be reasonable, and referred to the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, which established that an employer may require drug or alcohol testing where the facts give reasonable cause to do so. The Supreme Court also found in Irving that testing individuals with a problem of drug and alcohol abuse could be a legitimate part of continuing employment.
The arbitrator found that the worker exercised poor judgment in taking his eyes off the road when his coffee spilled, which led to the accident that cost NGC a significant amount of money in repairs. This was serious damage to company equipment and a vehicle that justified testing under the policy, said the arbitrator.
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Reasonable cause from observations
In addition, after the incident there was reasonable cause to order a test because of the worker’s behaviour as observed by supervisors. This qualified as “erratic or atypical behaviour” under the policy, said the arbitrator, adding that there were no other mechanical or weather conditions that could have contributed to the incident.
The arbitrator also found that it was necessary for NGC to exercise “the precautionary principle to ensure the safety of the workplace,” given the safety requirements of the mine and NGC’s obligations under the Ontario Occupational Health and Safety Act (OHSA). The arbitrator again referred to Irving, in which the Supreme Court found that employers are generally entitled to test employees in safety-sensitive positions if there is reasonable cause to believe that an employee was impaired while on duty, an employee was directly involved in a workplace accident or significant incident, or the employee is returning to work after treatment for substance abuse.
Since there is no test to establish whether someone is impaired by cannabis, a precautionary approach is preferred in a safety-sensitive environment, said the arbitrator. In addition, the worker was only tested for reasonable cause, which didn’t unnecessarily intrude on the worker’s personal activities that regular testing would, the arbitrator said in determining that the policy and the post-incident testing was reasonable.
“The entire point is to take precautions against the as-yet unknown, and I think that's really important here because it puts a very high standard in terms of the obligation to ensure that there's a safe workplace for the employee, for other employees, and the general public, and that's consistent with the [OHSA],” says Lisi. “This isn't like the cases where somebody says you've got an addiction and you need to be accommodated, because accommodation was never raised – this was a recreational use issue.”
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The precautionary approach is also consistent with a higher threshold for managing impairment in the mining industry, adds Lisi.
“[The industry] required a policy that acknowledges that the existence of drugs in an individual's system could increase the risk of impairment, so even though we don't have a standard level [of impairment] like we do with alcohol, that's not determinative,” he says. “Both [NGC and the union] agreed that there could be some impairment - just when it kicks in is the issue.”
The arbitrator also found that the 40-hour suspension was reasonable, as the worker clearly violated the policy. Since NGC found no other factors that could have contributed to the accident, it was likely the worker’s reckless actions were due to his being under the influence of cannabis, the arbitrator said.
As for the termination, the worker knew that he was under an LCA that required him to pass a drug test before resuming work. Despite this, the worker knowingly consumed marijuana 24 hours prior to his shift and tested positive. This was poor judgment and breached necessary safety protocols, said the arbitrator, adding that since it was clear that the LCA was violated, they could not substitute a lesser penalty.
“We need to honor [LCAs] if they're going to be at all relevant in the workplace,” sats Lisi. “Arbitrators want to encourage unions and companies to come to LCAs for the purposes of assistance, not only ensuring that the employee is treated fairly, but also in case they need to be accommodated.”
All the grievances were dismissed and the termination was upheld.
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Clear, consistent policy
NGC’s comprehensive and consistent policy set up its successful defense of the grievances and emphasized the importance of vigilance in safety-sensitive industries, according to Lisi.
“If you've got good policies and you enforce them properly, reasonably, and consistently, we're not going to argue over the impairment part - or at least it's not going to be as significant,” he says. “If there's an accident in the workplace, the employer has to prove that they took all reasonable steps and the policy is the foundational element of the due diligence process.”
“It also helps avoid liability under the OHSA, which is significant.”
See Newmont-Goldcorp Canada Ltd. and USW, Local 7580 (CA-009-21), Re, 2023 CarswellOnt 8995.