Commuter train operator fired after violating drug policy

Worker runs a red light, tests positive for drug use

Gary McMillan was fired after he fell off the wagon and onto the driver’s seat of a speeding train.

McMillan — a commuter train operator for the Canadian National Railway Company — was dismissed in relation to his failure to comply with CN’s drug and alcohol policy. On May 6, 2013, McMillan tested positive for drugs. Following an investigation he was suspended for 90 days and subsequently fired on June 12, 2013.

A 23-year veteran, McMillan sustained two workplace injuries in the 1990s. As a result he was prescribed painkillers — including opioid painkillers — which led to oxycontin dependence.

McMillan began a monitoring program for the use of opiates and participated in a methadone program from March 2005 until January 2007. He provided periodic medical reports to CN in 2006, 2007, 2009 and 2012. In the 2006 and 2007 reports McMillan referenced his oxycontin dependence and his methadone treatment.

On May 6, 2013, while working in the rail line near Bathurst Street, McMillan ran a red light at signal 118 A-3. The previous signal had been "clear to stop," meaning McMillan should have been prepared to stop 300 feet prior to signal 118 A-3.

At the time of the incident McMillan said he and his crew mate had been bothered by the sun as they were approaching the signal. At the last second they realized the signal was red. McMillan failed to immediately apply the emergency brake and the train stopped 1,000 feet after the signal.

A supervisor immediately attended the scene and pulled the crew out of service. The crew were taken back to company yards and tested for drugs and alcohol as part of standard procedure following a failure to break (covered under Rule 439).

Before the urine test was administered, McMillan dropped the sample container in the toilet. The collector wiped the specimen container and returned it to McMillan. McMillan’s sample tested non-negative for amphetamines and the sample was sent to the laboratory for analysis.

Tests demonstrated McMillan had 13,423 ng/ml of amphetamines in his system. The positive cut-off level for this drug is 250 ng/ml.

McMillan was notified of the result and asked to provide an explanation. McMillan was also informed of his right to contact the medical review officer to contest the results. McMillan disclosed the medications prescribed to him and denied taking any other prescription, over-the-counter or illicit drugs. He failed to contact the medical review officer about contesting the test results.

During the investigation, McMillan expressed his belief the testing procedures were flawed because he dropped the specimen container in the toilet. McMillan was suspended for 90 days and dismissed for his failure to comply with the company’s drug and alcohol policy.

Teamsters Canada Rail Conference filed a grievance on McMillan’s behalf. The union argued there was no just cause for his suspension as the incident was an isolated one caused by an error in judgment. Because no damage or injury resulted from the incident the union called for the suspension to be removed and McMillan be paid for the 90 days.

It argued the test and sample collection were not properly conducted, rendering the results unreliable. The union requested McMillan be reinstated without loss of seniority and benefits and that he be made whole for all lost earnings with interest.

CN denied the test was flawed in any way. The company contends the test was carried out by a trained professional and no contamination took place.

"The fact that there was no damage or injury flowing from his violation is of little assistance to Mr. McMillan," arbitrator Christine Schmidt said. "There could have been dire consequences. The threat to public safety occasioned by Mr. McMillan’s conduct cannot be overstated."

Schmidt made it clear CN did not fire McMillan merely for testing positive for amphetamines, but because of the circumstances relating to testing that he could not explain.

Accepting the doctor’s medical opinion that there was no procedural or medical explanation for the positive amphetamine test result, Schmidt concluded McMillan was untruthful during the investigation and "continues to be untruthful to this day."

The grievances were dismissed.

Reference: Canadian National Railway Company and Teamsters Canada Rail Conference. Christine Schmidt — arbitrator. M. Marshall for the employer, R. Caldwell for the union. Oct. 14, 2013.

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