City's alcohol testing rule leaves little room for flexibility

Last-chance agreement required worker to take test whenever requested by employer: Arbitrator

An Ontario employee breached his last-chance agreement by refusing to take an alcohol test until he had a union representative present, an arbitrator has ruled.

Scott Heath was an employee of the City of Cornwall, Ont., for 29 years. On Oct. 29, 2013, Heath’s employment became contingent on a memorandum of agreement that was the result of alcohol-related misconduct, including being impaired at work and operating a vehicle while impaired.

Under the memorandum, Heath was required to undergo random alcohol testing whenever requested by the city, for a period of 24 months.

If such a test was ordered and Heath either failed or refused to take the test, the city would consider it a breach of the memorandum and terminate Heath’s employment.

On Aug. 25, 2014, another city employee contacted city management and suggested Heath may have been drinking while at a worksite. Heath’s supervisor called him and asked him to come to his office.

When Heath arrived at the supervisor’s office, the supervisor asked to smell his breath and he complied. The supervisor believed he detected something and asked Heath to wait outside while he called the city’s human resources manager and division manager. Once they arrived, Heath was brought back in to join them. He declined their offer of having a union representative present after he was told they were “just having a discussion.”

Employer exercising right under last chance agreement

The HR manager advised Heath that another city employee had suggested he had been drinking, so the city was exercising its right under the memorandum of agreement to order an alcohol test. Heath consented and, when given the option of going to the hospital or a police station, chose to go to the hospital for the test. The HR manager and his supervisor accompanied him.

Heath registered at the hospital’s emergency department and spoke privately with a nurse. The nurse told the HR manager and supervisor that they shouldn’t have come to the emergency department for that type of test as there were other places to do it and there were people in need who had been waiting for some time to be seen. The nurse, thinking Heath appeared stressed and unsure of his rights, said she would do the test if Heath consented but he shouldn’t without a union representative there.

Heath indicated he didn’t want to proceed without a union representative there. He later testified that he put up his hands and said “This is more than a chat like I was told it was going to be; I’d like to speak to my union.” However, he wasn’t able to reach anyone and could only leave a message.

It became apparent they weren’t going to get the test done anytime soon, so the HR manager and supervisor decided to suspend Heath with pay pending an investigation — meaning when they could discuss it with the city’s chief administrative officer.

On Aug. 27, the HR manager called Heath into her office and informed him he was being terminated for failing to undergo an alcohol test, as required under the memorandum of agreement.

The Canadian Union of Public Employees (CUPE) grieved the dismissal, arguing Heath never refused the test, he was just exercising his right to have union representation present.

Arbitrator Jasbir Parmar found that Heath signed the memorandum of agreement acknowledging past misconduct and accepting the terms. Health denied the misconduct and said he only signed the agreement to avoid being fired, which the arbitrator found meant he either was guilty of the misconduct or had no problem making false statements to save his job. Either, way it didn’t help Heath’s credibility, said the arbitrator.

Placing condition on test not allowed under agreement

Parmar found that when Heath indicated he wanted to speak to his union, he was placing a condition on his consent to take the alcohol test. Heath raised his hands in a gesture meaning “stop” and it was reasonable for the HR manager and supervisor to think he was refusing to consent to the testing without union representation. After his attempts to contact someone at the union, Heath knew no-one was available and that refusing to take the test at that point would mean he wouldn’t be able to take the test within a reasonable amount of time, said Parmar.

“The greater the amount of time between alcohol consumption and an alcohol test, the less likely there will be a positive result,” said Parmar. “In other words, any delay in taking the test could only be to (Heath’s) advantage, which would be a reason for him to be less agreeable.”

Parmar found the terms of the memorandum of agreement obliged Heath to consent to alcohol testing whenever the city requested it of him. By placing a condition on his consent Heath breached the agreement and the arbitrator ruled in upholding his dismissal.

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