You Make the Call
This edition of You Make the Call features a worker who was fired for smoking marijuana at work while on break.
The worker was employed at the Thunder Bay, Ont., plant of Montreal-based Bombardier Transportation.
Bombardier’s drugs and alcohol policy prohibited employees and anyone else on its property from “being under the influence, consuming, using, possessing or trafficking drugs or alcohol… anywhere on the company premises.” The policy also allowed for testing of its employees in circumstances where a supervisor had reasonable grounds to believe an employee is under the influence of drugs or alcohol that could lead to a safety issue. Bombardier’s collective agreement with its union also stated that substance abuse was harmful to both employee wellbeing and the company’s operations.
On Oct. 5, 2017, the worker’s supervisor saw the worker and another employee were seen outside the plant in an out-of-the way area. Drug paraphernalia had been found in this area, including small pipe-shaped objects made from component parts at the plant containing residual traces of marijuana. As a result, a camera had been installed in the area but was blocked by a trailer.
The supervisor detected a strong smell of marijuana and walked towards the pair of employees, observing smoke coming from the other employee’s mouth. The worker turned and looked at the supervisor, who saw something hit the ground and smoulder beside the other employee. The supervisor searched the area but didn’t find anything, but told the two of them to report to the HR office.
The two employees were interviewed together and the supervisor thought the worker’s eyes were “glossy” and he seemed “jittery.” The HR people there didn’t describe any signs of impairment, though they were agitated and upset. The worker denied he had been smoking marijuana and when he was told he would have to take a test, he said it would be positive because he was a regular user of medical marijuana at night and not at work. He explained that he had begun self-treating anxiety and post-traumatic stress disorder (PTSD) with marijuana to reduce his dependency on psychoactive drugs and his doctor approved. The supervisor thought he still smelled marijuana, but two HR people present — one was a tobacco smoker and one had a cold — didn’t.
The worker also said he wasn’t that close to the other employee and he was walking with his back turned to the other employee and texting on his cellphone.
The worker subsequently tested positive for THC — marijuana’s active ingredient. He and the other employee were discharged for smoking marijuana at the workplace. One month after his discharge, the worker obtained a prescription for medical marijuana for PTSD and to help stabilize and reduce his dependence on opioid drugs.
You Make the Call
Did the company have enough reason to discharge the worker?
OR
Was there insufficient cause for discharge?
If you said there was insufficient cause for discharge, you’re correct. The arbitrator noted that the worker didn’t have much credibility, since he claimed to have a prescription for medical marijuana, but in fact he didn’t until after he was terminated. As a result, the marijuana he used at the time of the incident wasn’t medical in nature.
However, there was no proof the worker used marijuana at work. The supervisor said he smelled marijuana, saw the worker in an area known for drug use, saw smoke come from the other employee’s mouth, and saw something smouldering on the ground. However, the supervisor did not see the worker smoking or exchange anything with the other employee, nor could he tell if the smell was coming from the worker. In addition, though the worker seemed upset and jittery during the interview, this could well have been due to the circumstances, particularly since no one else present made those observations, said the arbitrator.
“Although the (worker) lied about having a prescription and gave a self-serving account of the incident, it does not follow that he was not telling the truth when he insisted that he had not smoked marijuana near the rectifier building on Oct. 5,” the arbitrator said. “In my opinion, (the supervisor’s) eyewitness account does not compel the conclusion that the (worker) was probably smoking marijuana.”
The arbitrator found Bombardier didn’t prove it was likely the worker smoked marijuana on its property and therefore didn’t have just cause to discharge him. Bombardier was ordered to reinstate the worker without loss of seniority. The arbitrator also made the following comment:
“As the deadline for legalizing marijuana use approaches it has become notorious that current tests for cannabinoids are incapable of demonstrating either present impairment or recent consumption. Unless and until more sophisticated tests become available, it seems to me that the parties’ Substance Abuse Joint Committee or other suitable forum might well consider other more reliable methods of assessing impairment and/or alternative policy approaches to the problem of marijuana in the workplace.” See Bombardier Transportation and Unifor, Local 1075 (CT), Re, 2018 CarswellOnt 3701 (Ont. Arb.).
