Warehouse worker fired for using drugs, alcohol on company property

Employee in safety-sensitive job claimed he was addicted but was dishonest and evasive about seeking treatment

An Ontario company had just cause to fire an employee who was observed using drugs and alcohol on its property during an investigation into the problem, the Ontario Arbitration Board has ruled.

World Kitchen Canada is a United States-based manufacturer of kitchen products with operations in Ontario.

In early 2006, the company learned of “widespread” drug and alcohol use at its warehouse in Niagara Falls, Ont., which was a serious violation of its rule prohibiting the consumption or possession of such substances on its property. This was of particular concern, since shipper/receivers operated forklifts moving heavy loads. Safe operations of the forklifts was a “major concern” to both World Kitchen and its workers.

World Kitchen decided to employ an undercover private investigator as a shipper/receiver in the warehouse to observe and report what was going on. The investigator began working at the plant in August 2006.

On Aug. 11, 22, and 23, 2006, the investigator witnessed a shipper/receiver named Barnas who held a lead hand, or unofficial supervisory position, smoke a pipe containing drugs and drink a can of beer in another employee’s car during his shifts. He was seen five more times from September to November drinking and smoking drugs, after which the investigator went on a different shift. On Nov. 21, Barnas told the warehouse manager he wanted to step down from his lead hand position because he had marriage problems and a substance- abuse problem.

On Jan. 19, 2007, World Kitchen interviewed Barnas and some of his co-workers who had also been seen using alcohol and drugs. He said he was aware of the plant rule and he was addicted. He said he’d told the warehouse manager in November of his problem and was seeking treatment on his own, though he didn’t offer much information about it. The company suspended him without pay pending a final decision on what it would do. Soon after the interview, World Kitchen asked Barnas for a doctor’s note stating he had an addiction. The employee responded with a note from his therapist that didn’t mention a drug or alcohol addiction. World Kitchen asked for his permission to get information directly from the therapist, but Barnas refused, saying he had “done his own thing in kicking the habit.”

After failing to get what it considered adequate information about his addiction and treatment, World Kitchen terminated the employee on Jan. 24, 2007. The employee, through the union, filed a grievance, arguing the length of time it took after the violations was unreasonable and warranted a setting aside of the termination or institution of lesser discipline.

The board disagreed, saying the nature of the undercover investigation required some time to implement and was a reasonable course of action to take to find out what was going on. In addition, the incidents of drug and alcohol use by the employee, to which he admitted, were many over a period of a few months.

“The delay was not arbitrary,” the board said. “It was reasonably necessary to permit the employer to make an appropriate response to a serious situation. The (employee) did not suffer any prejudice due to the delay in discipline.”

The board found the employee didn’t demonstrate much credibility in his discussions about his problems. In addition to the inadequate note from his therapist, a doctor’s note showed up later, which World Kitchen didn’t remember seeing, that said he wasgetting counselling. However, the date on the letter was inconsistent with the timeframe and the letter itself was obviously not written by a doctor. “Mr. Barnas has attending myself (sic) and is getting councilling (sic) for his cannibis addiction and is doing well,” the note said.

Barnas’ reluctance to supply any information on his treatment and the false doctor’s note led the board to believe there was little hope of rehabilition, particularly considering the importance of safety in his workplace. The board upheld the termination, finding the seriousness of his misconduct and his dishonesty afterwards damaged the employment relationship beyond repair.

“I am far from persuaded of the trustworthiness of (Barnas’) assurances that he would change his ways if his employment relationship were to be re-established,” the board said. “His actions seem to speak louder than words, and they tend to point unmistakably to a lack of rehabilitative potential.”

For more information see:

World Kitchen Canada (EHI) Inc. v. U.S.W.A., Local 9045, 2007 CarswellOnt 7394 (Ont. Arb. Bd.).

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