Smell of marijuana enough to suspect use by employee at work

Unifor argued there wasn’t evidence to prove worker smoked it at work

An Alberta employer had grounds to suspend a worker for smoking marijuana at work based on three managers smelling it on the worker, an arbitrator has ruled.

The worker was a production line employee for Labatt Brewery at its Edmonton location. On March 25, 2015, he reported for work as usual for the start of his shift at 6 a.m. About 30 minutes after the start of his shift, the worker went to the "skybox," a control tower with large windows that overlooked the production line. He entered the skybox and asked the front-line manager, who was inside alone, for a pen to complete a report. The manager detected the odour of marijuana coming from the worker. He knew what marijuana smelled like, and he was sure there was no such smell in the skybox before the worker entered.

The manager also noticed that the worker, who was normally quiet, was talkative. After some discussion with a second manager, the front-line manager returned to the skybox and a third manager came in. The third manager asked what the smell was, and the first manager said it was marijuana. The third manager also checked out the employee change room and noticed a strong smell of marijuana there as well.

The second manager went to talk to the worker and also noticed the marijuana odour on him.

The managers went to the operations manager for direction on what to do, and it was decided to send the worker home for the rest of the day with pay as a safety precaution while they contacted Labatt’s HR department at head office for directions. At this point, the union, Unifor, was notified of this action.

The operations manager went to the skybox about one hour later and didn’t smell marijuana there. However, he passed by the change room and detected it there.

The worker was brought back to the skybox and informed he was being sent home as several people had smelled marijuana on him. The worker denied smoking marijuana and said the smell could be from garbage he had been cleaning or the lozenges he had in his mouth. However, the garbage consisted of mostly broken bottles and there was nothing in the plant that smelled like marijuana. The lozenges also didn’t smell like marijuana, and the union steward at the meeting noted that the lozenges smelled like “Vicks VapoRub.”

The union steward asked the managers if there would be any discipline afterwards and was told there wouldn’t be any.
An investigation meeting was held on March 30. The managers asked the worker when he had last smoked drugs and the worker said that was irrelevant and he again denied smoking them before or at work. He again said the smell may have been from the garbage, though he later admitted the garbage didn’t smell like marijuana. Though he hadn’t been asked to take a drug test on the day of the incident, he was asked to take one at the followup meeting, which he declined to do.

Following the meeting, the company suspended the worker for three days for smoking marijuana, based on the fact that three managers smelled it on his clothes, his breath, and in the skybox after he entered. 

Unifor grieved the suspension, saying it was unjust and excessive discipline. Unifor argued that the worker didn’t violate any policy and there was no definitive proof he had used marijuana at work. Unifor also said the union steward was initially told by the managers there would be no discipline.

Arbitrator Yvon Seveny first noted that it didn’t matter if the line managers told the union steward there would be no discipline for the incident as they didn’t know at that time what would happen — they had yet to consult the HR department — and had no authority to make such a guarantee, as the decision was to be made at the head office. There was no double jeopardy as the worker was sent home with pay and for safety reasons. It wasn’t disciplinary.

Seveny found the accounts of all the managers to be credible, as they had no reason to make it up and they all agreed that they smelled marijuana on the worker. In addition, the worker’s refusal to answer the question of whether he had smoked marijuana at the investigation meeting was effectively refusing to co-operate with the investigation and provide an explanation as to why all the managers suspected he had been smoking it at work, said Seveny.

Seveny also found the fact that a strong smell of marijuana was detected by more than one manager in the changeroom made it likely that it was the place where the worker smoked it. There was no evidence anyone else in the plant was detected that day smelling of marijuana.

“If the only circumstantial evidence was that the employer’s witnesses smelled marijuana in the changeroom area, this would not in itself have been sufficient to establish that  the (worker) had been smoking marijuana at work,” said Seveny. 

“However, the evidence about the changeroom is confirmatory that there was marijuana being smoked in the workplace that morning and this is in addition to the evidence that the (worker) smelled of marijuana and that he carried that smell into the skybox.”

Seveny determined that Labatt had set out a prima facie case of marijuana use by the worker  at work and the worker’s only explanation was that it could have been the garbage or his lozenges — which were already determined to not smell like marijuana. Without a sufficient explanation to the contrary, Labatt had reason to believe the worker had been smoking marijuana at work and grounds to suspend him. The grievance was dismissed.

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