Drug testing double failure

You make the call

This instalment of You Make the Call features a worker who failed a drug test, received treatment, and then failed another test when he returned to work.

North American Palladium operates a palladium mine in northern Ontario called Lac Des Iles Mines (LDI). LDI is one of two primary palladium producers in the world, extracting deposits of palladium — a white, naturally-occurring alloy. The mine was also a “dry mine” — use, possession, or impairment by alcohol or non-prescription drugs was strictly prohibited.

The 44-year-old worker was employed with LDI as a miner for a period of time before being laid off in 2008. He opted for a severance package and was terminated.

LDI hired the worker back in September 2011 as a miner — a position defined in the collective agreement as safety sensitive. He was trained on LDI’s rules and policies, including its substance abuse policy.

On Feb. 7, 2015, the worker was training on a remote scoop. Company policy required employees training on equipment to only operate it with a trainer present, but in this case the trainer had left the area and the worker continued to operate it. The worker got the scoop stuck in a stope — a step-like part of the mine where palladium was being extracted. In accordance with the substance abuse policy, the supervisor directed the worker to report to LDI’s medical centre for post-incident drug and alcohol screening, which consisted of an onsite urine test.

The screening was completed and the test came back positive for THC — the active ingredient in marijuana. The worker told the HR supervisor that he had a “problem with marijuana” and needed help, as he had smoked marijuana since he was about 12 years old and often walked down the road from the worksite to smoke. He added that he was thankful for treatment and promised to come back to work “clean.”

Independent testing confirmed the urine sample contained more than 170 times the permissible level of THC in LDI’s substance abuse policy, and LDI placed the worker on an indefinite unpaid leave pending an evaluation by a substance abuse professional and a doctor’s clearance to return to work.

The worker signed a letter on Feb. 17 that he understood he was on a last chance agreement — meaning a failure to comply with the conditions of regular testing and counselling would result in immediate termination.

The worker successfully completed a 21-day program and his post-treatment report recommended “random testing be completed twice monthly for up to two years” plus regular reports on his counselling.

On his first day back, Aug. 4, the worker underwent a drug screening in accordance with LDI’s policy. The test came up positive for oxycodone and cocaine in amounts five times the permissible amount under company policy.

LDI terminated the worker’s employment. The union grieved the termination, as the worker said he had stopped using marijuana and intended to clean up, explaining  that a family member with a cocaine problem was staying at his father’s house. The worker said he was against cocaine, though he admitted to using cocaine for about one year in 2003. The worker added that he sometimes crushed his Percocets and “snorted” them through a straw and suggested that the family member had used the same straw to take cocaine, leaving residue that the worker ingested with his Percocets.


You Make the Call


Did the employer have just cause to discharge the worker?


Should the employer have done more to help the worker rehabilitate and return to work?


If you said the employer should have done more to help the worker, you’re right. The arbitrator acknowledged the worker had “a serious drug abuse habit,” for which he had some success treating before he returned to work. The arbitrator also noted that after his treatment, the worker returned to “a bad home environment that did not reinforce a new life free from drugs, but rather supported a return to drug abuse behaviours.”

The arbitrator also found the worker downplayed the amount of cocaine he consumed, as the amount that showed up in his test wasn’t consistent with his explanation and he had a history of using it. However, while the worker wasn’t honest about his cocaine use, he was open about his use of marijuana. It’s likely that “having a regular job could be a central feature in the (worker’s) efforts to establish a new drug-free life for himself,” said the arbitrator, adding that the worker wasn’t “at heart a bad person.”

The arbitrator determined the worker deserved an opportunity to reclaim his employment with LDI, under strict conditions: full compliance with LDI’s substance abuse policy; evidence of medical treatment for addiction; successful completion of a residential addiction program; after-care and counselling; and a medical report clearing his return to work. At this point, LDI would reasonably determine if the worker was fit to work, with the option of placing him in a non-safety sensitive position for up to 12 months before returning him to the miner position.

Failure to adhere to these conditions would result in termination. See North American Palladium and USW (Waldon), Re, 2018 CarswellOnt 9422 (Ont. Arb.).

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