B.C. company’s drug test demand ruled reasonable by arbitrator

Previous incident revealed engineering, safety issues

B.C. company’s drug test demand ruled reasonable by arbitrator

A British Columbia company was entitled to request a substance test after a worker collided with a gate in his truck despite the fact there were concerns about the gate’s safety and design from a previous incident according to an arbitrator.

Aqeel Ahmad worked for Global Container Terminals Canada (GCT), the operator of a shipping container terminal in Delta, B.C. He was a rail dock man at GCT’s semi-automated rail yard.

The perimeter of the rail yard was protected and workers had to enter and exit through fenced gates that had detectors in the ground that triggered the opening of the gates.

Dock man trucks each had a mast extending 12 feet above the truck’s cab with a light and a sensor on it. On Nov. 4, 2018, a truck’s mast hit a gate as it was exiting the yard. GCT investigated and determined that the incident was caused by the fact that the location of the detectors didn’t allow dock men to see the gate as it was raised. The investigation report recommended installing a large white stop bar with a detector behind it and signal lights.

A short time later, GCT implemented a drug and alcohol policy. The policy allowed for substance testing of employees following an incident considered to be a “significant event” where a preliminary investigation determined that an employee directly contributed to the event. Significant events were defined as accidents that resulted in a fatality, significant injury, significant damage to property, equipment or vehicles, a hazard or spill; or near misses that could have resulted in any of those circumstances. A refusal to provide a requested test was considered a positive test result under the policy.

On Dec. 5, Ahmad was driving a truck into the rail yard. It was his second time working at the yard but his first time driving into it. He slowed at the gate and then accelerated through, causing the truck’s mast to hit the still-opening gate. The mast was significantly damaged and the gate was rendered inoperative.

Management reviewed video footage that showed the truck accelerating into the gate as it opened. The weather was clear and the area was well-lit, so they determined that Ahmad’s actions constituted a root cause of the incident. They requested a substance test under the drug and alcohol policy.

A union representative told management that a substance test wasn’t a reasonable line of inquiry because the root cause was the lack of sufficient safety measures at the gate. Ahmad then refused to undergo a test.

Management didn’t observe any signs of impairment, but GCT deemed the refusal a positive test. As a result, Ahmad had to comply with the policy’s return-to-work requirements involving a clearance to return by his physician and an assessment.

The union grieved the post-incident substance test requirement, arguing that the previous safety concerns were a factor and the accident was simply a mistake.

Ahmad provided a doctor’s note clearing him to work on Jan. 2 but had to provide a second note on Jan. 16. That day, he was cleared to return to work.

The arbitrator found that the evidence showed Ahmad clearly accelerated into the gate instead of moving cautiously, so there was “an objective basis” to inquire into his conduct, said the arbitrator.

The arbitrator agreed that the engineering of the gate may have contributed to the incident as well as other factors. However, the other factors didn’t necessarily absolve Ahmad of responsibility, said the arbitrator.

The arbitrator determined that management carried out an adequate preliminary investigation under the policy and established a reasonable line of inquiry that entitled them to demand a substance test. However, Ahmad met the return-to-work requirements on Jan. 2 but wasn’t reinstated until two weeks later. GCT was ordered to pay compensation for lost wages during that period.

Reference: British Columbia Maritime Employers Assn. and ILWU Canada. Julie Nichols — arbitrator. Drew Demerse, Teo Bardas for employer. Craig Bavis for employee. Oct. 5, 2020. 2020 CarswellNat 4369

Latest stories