Drink before training raises fit-for-duty questions

A Newfoundland and Labrador arbitrator has upheld the discharge of a worker who consumed alcohol on the morning of forklift training and was deemed not fit for duty while not being honest about it. 

“[Fit-for-duty and drug and alcohol rules] have a safety focus and violations of these rules warrant a significant response,” says Darren Stratton, a labour and employment lawyer at McInnes Cooper in St. John’s. “Honesty during the investigation process is also something that the employer can legitimately take into account in first instance of misconduct when considering its disciplinary decision.” 

The worker was an operator maintainer since 2012 at Iron Ore Company of Canada (IOC), a Montreal-based producer of iron ore concentrate and pellets with a mining operation in Labrador City, NL. He worked in a safety-sensitive position that involved operating forklifts. 

The worker was required to attend training on forklift operation in 2024, involving an in-class session on June 6 and a practical session with a company called the Dexter Institute. The worker passed the in-class portion and was scheduled to go through a two-hour practical training session at 10 a.m. on July 5, which was designed for those with prior experience on forklifts. 

July 5 was the worker’s scheduled day off after working a 12-hour day shift the previous day, but he was paid at the overtime rate to attend the training. 

The worker and the instructor did an inspection of the forklift and the instructor didn’t notice anything unusual about the worker. He was about four feet away from the worker most of the time. 

Worker’s performance raises fit-for-duty questions 

After the inspection was complete, the worker proceeded to operate the forklift, with the first part of the training involving a figure-eight course with pylons. According to the instructor, the worker had difficulty with the course and struck several pylons. This surprised the instructor, as he knew the worker was familiar with forklifts. 

The instructor drew chalk lines on the floor and explained how they could guide him through the course. However, the worker still hit multiple pylons and, when he drove by close to the instructor, the instructor smelled beer in “the breeze from the equipment moving as he passed by me.” 

The instructor asked the worker when he had his last beer and the worker replied 6 a.m. that morning on his way back from camping. The worker said that he didn’t drive, but the instructor responded that he was driving at that point. According to the instructor, the worker didn’t give any other explanation. 

The instructor decided to stop the training session for safety reasons, so he asked the worker to park the forklift. The Dexter Institute had forms for situations where drug and alcohol testing might be needed, but he didn’t complete any because the worker wasn’t a Dexter employee. The worker left around 10:30 a.m. 

The instructor reported the situation to IOC, which suspended the worker pending an investigation. A supervisor called the worker to inform him of his suspension and observed that “he seemed hammered.” The worker later admitted that he had consumed two or three beers between the time he left the training and when the supervisor called him. 

Employer conducted investigation 

At a meeting with management the following Monday, the worker explained that, when the instructor stopped the training, he said that he had spilled beer on his clothing that morning when he had left his camping site, he went home to get his boots, and then he went to the training. He said he had consumed five or six beers the night before, but he had stopped around 11 p.m. 

The same day, the instructor met with IOC management to describe what had happened. He reiterated that the worker had not said anything about spilling beer on himself and had said he had consumed a beer that morning. 

IOC didn’t think the worker’s story about spilling beer was a reasonable explanation, as it didn’t make sense that he went home without changing, and the instructor didn’t say he smelled any beer on the worker’s clothes. Management determined that the worker wasn’t fit for duty when he reported for training, which was a safety risk. 

IOC terminated the worker’s employment on July 10 for not being fit for duty and being dishonest about drinking before he reported for training. 

The union grieved, arguing that IOC didn’t follow its policies for fit-for-duty and drug and alcohol testing, as its reasonable cause checklist should have been triggered but it wasn’t used. It also argued that the instructor allowed the worker to park the forklift and didn’t ask the worker how he was getting home, so he couldn’t have been too concerned about the worker’s condition. 

Drug and alcohol testing not feasible 

The arbitrator found the instructor’s account more credible than the worker’s, noting his consistent testimony and lack of interest in the case’s outcome, while the worker’s account of what he told the instructor and what he did that morning was inconsistent. As a result, the arbitrator accepted that the worker had consumed alcohol at 6 a.m. and was operating a forklift four hours later, with an odour of alcohol detected from his breath. The worker was drinking the night before and the morning of the training “by his own admission” to the instructor, the arbitrator said. 

“The arbitrator found that the situation was so unusual that the instructor would be expected to note and have a better recall of what was said and in what circumstances,” says Stratton. “And the arbitrator had to look at the story the worker was telling, and there were some changes in his testimony versus what he said in IOC’s investigation - subject that to the preponderance of probabilities of what you could reasonably expect to be happening in the circumstances, and I think the arbitrator here just didn't think that it met the smell test.” 

Although no alcohol testing was performed and IOC’s checklist wasn’t followed, the arbitrator found that IOC wasn’t in a position to conduct testing due to the training being held offsite and the time-sensitive nature of drug and alcohol testing. The IOC’s policy enforcement wasn’t practicable under the circumstances, said the arbitrator. 

“The union took the view that there should have been some testing, either initiated by [the Dexter Institute] or by IOC, but the [Dexter Institute] wasn't in any position to compel the employee of another employer to submit to testing,” says Stratton. “And by the time IOC had learned about it and was in contact with [the worker], he had been drinking more beer so a test wouldn’t have been at all helpful in that context.” 

The arbitrator also found that the worker demonstrated “appallingly poor judgment” and didn’t appreciate the seriousness and safety risk of the situation. The worker’s dishonesty about his actions before he reported for training further eroded trust and justified IOC’s decision to terminate his employment, the arbitrator said, adding that these factors outweighed the worker’s 12 years of service with only one instance of unrelated discipline. 

Worker not fit for duty 

The arbitrator determined that IOC had proven, on a balance of probabilities, that the worker reported for forklift training unfit for duty after consuming alcohol and dismissed the grievance. 

The case is a good example of the importance of making sure that employees, particularly in safety-sensitive roles, are fit for duty and that fitness isn’t affected by drug or alcohol consumption, according to Stratton. 

“Safety infractions are among the most serious that could take place in the workplace, and therefore they deserve a serious disciplinary response,” he says. “The arbitrator said that even before he considered the worker’s honesty, he used the expression that he was ‘teetering on the precipice of discharge’ because safety obligations are important – even with no track record of substance violations in the workplace, the safety infraction compounded by the worker’s dishonesty made discharge appropriate.” 

It's also a good idea for employers to look at their policies to ensure that they aren’t restricted to conduct at the employer's premises or while the employee is performing their normal duties at their normal location, adds Stratton. 

“The interests of the employer can expand to other circumstances, and this is a good example of drug and alcohol restrictions feeding into fitness for duty, when that duty could be performed somewhere else like third-party testing on days that are otherwise scheduled to be off-duty,” he says. 

See USW, Local 5795 and Iron Ore Co. of Canada (Bennett), (April 17, 2025), David G.L. Buffett – arb. (N.L. arb.).