Company policy stated refusals would result in discipline including dismissal, but positive test would bring assistance
An Alberta company had just cause to dismiss an employee for refusing to take a drug and alcohol test following a workplace incident as specified by the company’s drug and alcohol policy, an adjudicator has ruled.
Dallas Mielke was a professional truck operator hauling loads for Entrec Corporation, a heavy haul and lift company based in Bonnyville, Alta. Much of the company’s business involved moving and lifting large items for clients in the oil and gas industry.
Hired in 2010, Mielke had a few instances of discipline on his record, including when he scraped the side of a trailer with a backhoe he was unloading, a minor collision between his and another truck, and an occasion when he was issued a non-compliance form for not wearing his safety glasses and not signing on to a safety meeting.
The company operated with safety as its “number one core value.” It was topmost priority and Entrec believed it should come before production. This priority on safety was part of Entrec’s identity and its clients had high expectations, particularly because of the danger inherent to the oil and gas industry. Entrec had to submit its safety statistics to potential clients before bidding on jobs.
Mielke’s position as a truck driver required particular attention to safety, as he often delivered to military bases with strict guidelines and hauled materials with high temperatures or pressure. The position was considered safety sensitive and high risk.
As part of its attention to safety, Entrec had a drug and alcohol policy tied to “the Canadian model.” Employees were trained in the policy as part of their orientation and Entrec kept them informed of it through newsletters and regular safety meetings. Mielke signed off on the policy, as all employees were required to do to ensure they were up-to-speed.
The policy stipulated that drug and alcohol testing was required for pre-employment screening and where there was reasonable cause, such as after a workplace incident. In particular, the policy required supervisors to order an employee “who is involved in an incident, near miss or other potentially dangerous occurrence to take an alcohol and drug test” if there was reasonable grounds to suspect impairment or if there was no credible explanation of the incident. The policy also stated that employees and contractors had the right to refuse to be tested following an incident, but doing so was a violation of the policy and would be “grounds for disciplinary action, up to and including dismissal.”
Company offered assistance to workers who tested positive
It was common practice for Entrec that if an employee tested positive, the company would refer her to a substance abuse professional and, if the employee was addicted, the employee could enter a rehabilitation program. If the employee refused the program, she would be terminated, but otherwise Entrec didn’t dismiss employees who tested positive.
In December 2014 and January 2015, Entrec experienced more incidents than ever before. As a result, it called an emergency safety meeting with all employees, including Mielke, where it told the employees all incidents would be subject to drug and alcohol testing. Mielke was called out for rolling his eyes and not taking the meeting seriously, but he signed off on the meeting with the other employees.
On Jan. 27, 2015, Mielke was loading a large rock truck for delivery to a customer and drove it up the tramp of the trailer. When the truck was part of the way onto the trailer, part of it slid off. There was minor damage to the truck’s wheel rim, but no-one was injured. The customer later called Entrec to complain about the damage.
After the dispatcher spoke to the customer, he called Mielke to find out what had happened. Mielke said the rock truck had spun out to the side of the trailer and, when the dispatcher said he should have used ramps or gravel, Mielke said “There are no ramps in the bush.”
It was raining and snowing that day and Mielke had asked dispatch to call off the job. However, dispatch told him he should go ahead. Mielke had refused to perform work he considered unsafe in the past and was aware of his rights to do so, but he proceeded.
The executive vice-president of operations learned of the incident and felt Mielke should have used a different ramp for slippery conditions or use sand on the trailer. After the vice-president conferred with the branch manager and safety manager, it was decided Mielke should undergo post-incident drug and alcohol testing. Two of Mielke’s co-worker’s had recently undergone successful rehabilitation programs and were back at work, so they felt there was no reason Mielke shouldn’t be tested.
Worker refused to take test
Mielke didn’t want to take a test, as it would mean he would be subject to random testing for a year under the policy. He went out to lunch with his wife, who convinced him not to lose his job, and returned to say he would agree to be tested. However, the branch manager told him it was too late and “too bad to throw in the towel, you are a good hand.” He told Mielke to go home and come back the next day.
The next day Mielke’s employment was terminated, which the branch manager was reluctant to do because Mielke was considered a “key hand,” but he felt he had to follow the policy.
The adjudicator found Mielke was aware of Entrec’s policies through meetings and newsletters and signed off on them, so when he refused to take a drug and alcohol test he knew what the consequences would be. He was also aware he could refused to do the job if he felt the weather conditions made things too dangerous, but he didn’t. Either way, there was an incident that required a drug and alcohol test under Entrec’s policy.
“Regardless of the nature of the incident with the rock truck on Jan. 27, 2015, it was an incident nonetheless,” said the adjudicator. “(Management) all agreed that Dallas Mielke should be tested. This in my view was a reasonable and prudent decision to make, especially in light of the rising number of incidents Entrec was having, and in view of what was said at the stand down meeting.”
The adjudicator also found that it didn’t matter that Mielke was persuaded by his wife to change his mind and was later willing to be tested. He refused to be tested at the start and Entrec relied on that refusal under the policy to terminate his employment, said the adjudicator.
Mielke gave no reasons for refusing the test and there was nothing to justify the refusal as his job would not be in jeopardy if he complied, said the adjudicator in upholding the dismissal.
For more information see:
• Mielke and Entrec Corp., Re, 2015 CarswellNat 6411 (Can. Labour Code Adj.).
