Marijuana use constituted serious safety risk in dangerous workplace
Evan Fudge, 25, joined Vale in July 2008 as a plating tankman at its nickel refinery in Thompson, Man. His duties included various tasks in the hazardous environment inside the refinery each day.
Due to the nature of the materials and machinery in the refinery, Vale had an extensive safety program. The company’s mission statement was "Life matters most" and it provided extensive safety training.
Managers reviewed the safety plan annually and each supervisor ran a monthly safe production meeting for employees. Vale also posted safety messages on signs and video monitors in the refinery and it tracked and analyzed injuries and incidents in the workplace.
Zero tolerance policy for possession
Vale was aware the Thompson refinery had a problem with illicit drugs onsite. This raised concerns of the dangers of impaired employees causing injury, damaging equipment and hurting production, so the company had a zero tolerance policy for possession of drugs by employees at work. It also implemented an alcohol and drug policy which prohibited possession and use of illicit drugs and drug paraphernalia, as well as reporting to work while under the influence of drugs.
Vale made sure employees were made aware of the policy through presentations and booklets that were distributed. Employees who came forward voluntarily for help were referred to a professional assessment and supported in a treatment program, but violation of the instructions would result in discipline up to and including termination of employment.
Rumours spark concern
In November 2012, Vale heard rumours of employees using drugs in the refinery’s tank house. Eventually, Fudge and one of his co-workers were named as potential culprits and the tank house supervisor decided to keep an eye on them.
At the end of a shift one day, the supervisor approached Fudge and noticed his eyes were red and glassy. But Fudge simply said he had finished an anode change, a procedure that can cause red eyes. Rumours aside, the supervisor didn’t see any suspicious behavior from Fudge.
On April 2, 2013, another supervisor spotted Fudge in the basement of the tank house with the other co-worker under suspicion. When they noticed the supervisor, they went back upstairs. The two workers were interviewed separately, and both said they were trying to get some tools that fell through the floor. Fudge admitted to smoking marijuana the night before — saying he wouldn’t pass a drug test — but he denied smoking at work.
The next day, five plastic baggies, two pairs of scissors and drug residue were found in the basement. Fudge denied using any drugs. The police were called, and it was decided to test the materials for fingerprints. Fudge was told to provide his fingerprints or face immediate termination. He met with a union representative and then admitted to using marijuana occasionally at work. He claimed he had a drug problem and Vale placed him on unpaid suspension while the investigation continued.
Vale’s investigation determined that Fudge had been to the safety presentations, been notified of the alcohol and drug policy and had received training in the safe production program. He also had opportunities to come forward and seek help, but failed to do so. In addition, Fudge lied about using drugs at work and his reason for being in the tank house basement. He only admitted it when faced with being fingerprinted, which would have likely revealed the drug paraphernalia was his.
Disregard for safety a reason for dismissal
Despite all the training and information Fudge received, Vale determined he had disregarded the safety and well-being of his co-workers and himself by using drugs at work. His workplace in the tank house was considered one of the most hazardous worksites for Vale, and his position had the highest injury frequency. To Vale, Fudge’s drug use was extremely serious and dangerous.
Vale terminated Fudge’s employment on April 9, 2013 for numerous safety violations for breaching its drug policy.
Fudge reiterated he had a drug problem and needed help. He said he initially didn’t use marijuana at work, but the environment condoned it.
Though he said he smoked it occasionally at work in his first investigative interview, he admitted he minimized his misconduct and often reported to work high. He agreed the tank house was a dangerous place and he needed help to quit using drugs.
The arbitrator found Fudge’s inability to be truthful concerning. He initially denied using marijuana at work, then after confessing, he understated the amount he smoked. In the hearing, he admitted to smoking three to four times per week at work — a significant amount. Due to this lack of truthfulness, it was difficult to rely on Fudge’s claim he was addicted, since it was only a self-diagnosis with no other evidence, said the arbitrator.
"I have (Fudge’s) mostly uncorroborated subjective description of heavy drug use as part of a dysfunctional personal life," said the arbitrator.
"But irresponsible drug use without more does not prove addiction."
The arbitrator found Fudge had a problem with marijuana use, which had negative effects on both his personal and work lives. However, without any official evidence, Fudge didn’t have credibility.
In addition, Fudge did not seek treatment when he had the opportunity. Without treatment, there was no reasonable guarantee Fudge’s drug use would improve and therefore trying to accommodate Fudge would be an undue hardship for Vale, particularly given the risk to employee safety, said the arbitrator.
The arbitrator found Fudge’s drug problems and need for accommodation — without providing documentation of his problem and what specific accommodation he needed — didn’t outweigh the "gravity of (Fudge’s) ongoing safety violations and breach of company rules." The dismissal was upheld.
For more information see:
• VALE and USW, Local 6166 (Fudge), Re, 2013 CarswellMan 764 (Man. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit
www.employmentlawtoday.com.
