Positive drug test serious enough for dismissal: arbitrator
A CP railway engineer unsuccessfully tried to claim an addiction disability when he was fired for testing positive for cocaine after he derailed a train.
Canadian Pacific Railway (CP) hired the worker in 1991 and he became a locomotive engineer based in the Montreal area in 2012. However, in December 2012, the worker was involved in a train derailment. He took a post-incident drug test and tested positive for cocaine.
The testing provider submitted a report that stated the worker had a level more than twice that of the cut-off level from the oral swab test, but a urine test came back negative. In February 2013, CP conducted an investigation. During the interviews, the worker was told that he had tested positive for cocaine in the oral swab, but not the urine test. The worker admitted that he had taken cocaine while on vacation, but the test results indicated that he had been exposed to the drug within a few hours prior to the derailment.
On Feb. 13, CP terminated the worker’s employment “for conduct unbecoming an employee for your engaging in the use of an illegal and prohibited substance (cocaine) as evidenced by your positive substance test” — violating CP policy and Canadian Rail Operating Rules.
Nearly three months after his termination, on May 8, the worker emailed CP and said that his doctor had diagnosed him with a cocaine dependency. He attached a consultation request from a Walmart clinic for a psychiatric consultation for an opioid dependence. He explained that at the time of the investigation, he thought his drug use was social, which was why he hadn’t raised his dependency then. The union filed grievance arguing that the worker suffered from a disability and CP failed to accommodate him.
An arbitrator ordered CP to reinstate the worker subject to random testing. CP eventually agreed to reinstate the worker to a non-safety-sensitive position but appealed the arbitration decision.
Two courts quashed the arbitration decision and ordered the case to be heard by a different arbitrator. When the higher court confirmed the decision in March 2017, CP removed the worker from his reinstatement pending the new arbitration.
The arbitrator found there wasn’t sufficient medical evidence to show the worker had a cocaine dependence. The worker initially acknowledged he had used cocaine during his vacation, but that didn’t constitute evidence of an addiction.
The worker didn’t indicate he had a dependency issue until months after his termination, but the evidence he provided at that time referred specifically to an opioid problem — and cocaine isn’t an opioid, said the arbitrator.
The arbitrator noted that the worker attended an addiction rehabilitation program after his dismissal, “but that in and of itself does not prove he had a disability” without actual medical evidence of an addiction. Without such evidence of a disability, there was no duty to accommodate, said the arbitrator.
The arbitrator found that the test results after the derailment clearly indicated the worker had taken cocaine within a short period of time before he operated the train. Though the tester report mentioned “metabolites,” this was later amended to just cocaine and it was made clear to the worker that he had tested positive for recent cocaine use. This, of course, was serious misconduct, said the arbitrator, noting that it was also against the Criminal Code to operate a motor vehicle or railway equipment with more than a certain level of alcohol or drugs in the bloodstream — a concentration exceeded in the worker’s post-derailment test.
The arbitrator also found that the worker denied that test’s findings and had a number of demerit points on his record from past discipline. This “lack of candour” combined with the seriousness of the misconduct provided just cause for dismissal, said the arbitrator.
Reference: Teamsters Canada Rail Conference and Canadian Pacific Railway. Graham Clarke — arbitrator. Maryse Tremblay, Nizam Hasham for employer. Ken Stuebing for employer. Sept. 22, 2019. 2019 CarswellNat 5073