Worker claimed others were responsible for accident and should be tested as well
This instalment of You Make the call involves a worker who refused to take a drug test following an incident in the workplace.
Wade Johnston was hired as a rigger by Clearwater Fabrication GP, a manufacturing shop in Edmonton, in June 2012. Clearwater’s workplace involved heavy equipment and other manufacturing elements, so workplace safety was a top-of-mind issue for the company. As such, Johnston and other employees underwent a safety orientation in which attendance had to be confirmed.
An additional safety initiative included a part of the collective agreement that featured alcohol and drug guidelines adopted from the Canadian Model for Providing a Safe Workplace — a negotiated plan for the construction industry that had been incorporated in many collective agreements in the industry with the support of unions. The plan was considered a “balancing of rights” that had been arranged through the bargaining process so unions would be onside with it.
The plan stipulated that when an incident — defined as an “occurrence, circumstance or condition that caused or had the potential to cause damage to person, property, reputation, security, or the environment” — happened in the workplace, a supervisor or manager must request any employees suspected to be involved to submit to an alcohol and drug test. Employees were not permitted to refuse.
On July 18, 2012, Johnston was tasked with moving a 56-foot length of pipe that had been lying on the ground for some time. The pipe consisted of two shorter pieces that had been welded together. Johnston used a crane with two short slings to move the pipe, but the pipe bent without more support and the welds gave way. The pipe broke into two pieces at the point of the weld, with one piece falling and the other swinging dangerously.
The rigging foreman concluded the rigging had been done improperly — longer slings or two cranes should have been used so the pipe's weight was better distributed and put less stress on the welds. There also appeared to be no tag lines to prevent rotation, which were required for any lifts of
more than six inches.
The foreman asked Johnston about the accident, but Johnston reacted loudly and aggressively, showing concern that he would be ordered to take a drug and alcohol test.
Johnston was brought to management but continued to express anger and aggression. He blamed the accident on poor welding of the pipe and suggested he was being singled out. The foreman didn’t notice any signs of impairment, though Johnston reacted to the request to take a test by “stomping around with foam in the corner of his mouth,” swearing and saying everyone should be tested. The health and safety manager asked Johnston several times to take a test, but he continued to be agitated and created a commotion in the office. Johnston eventually left the shop without being tested.
On July 19, Clearwater terminated Johnston’s employment for refusing a drug test as required under the collective agreement as well as directing anger at members of management in response to the request for a test.
The union challenged the dismissal, arguing Clearwater lacked proper cause to demand a test and the company didn’t try to find out who was responsible for the weld. Instead, the company singled Johnston out, said the union.
You Make the Call
Was dismissal too much for the drug test refusal and the worker’s behaviour?
Was dismissal an appropriate response?
If you said dismissal was appropriate, you’re right. The arbitration board noted that Clearwater’s health and safety manager decided to request a test based on the incident reports, but Johnston had an opportunity to present any information to help the company rethink the request under the collective agreement. However, Johnston instead “relied on shouting, dropping names, and making unhelpful suggestions as to where the policy might be filed,” said the board.
The board found the main cause of the pipe to break was the extent it bent when it was lifted — the result of inadequate rigging that caused too much stress on the weld. As far as Clearwater was concerned, Johnston as a rigger should have realized the rigging he set up was inappropriate for a pipe of that size that was welded together.
The board acknowledged Clearwater should have investigated more into who else could have been involved, such as the welder — though the pipe had been welded some time ago and had lain on the ground for a while — or the person responsible for holding the tag line, but this didn’t excuse Johnston’s role in the incident as a rigger and the requirement to test him.
“The steps in the policy are quite specific. In these circumstances, the employer must under (the collective agreement) request an employee to submit to a test when they have reasonable grounds to believe that an employee was involved in an incident. By his own admission, Mr. Johnston was involved in this incident and a test was therefore justified,” said the board.
The board found dismissal for refusing the alcohol and drug test was justified under the model for a safe workplace enshrined in the collective agreement — particularly when taking into account Johnston was a very short-term employee with one month of service.
For more information see:• Clearwater Fabrication GP Inc. and UA, Local 488 (Johnston), Re, 2013 CarswellAlta 1445 (Alta. Arb.).