Worker was on last chance agreement
This edition of You Make the Call features a railway employee on a last chance agreement who tested positive for marijuana on a post-incident drug test.
The 50-year-old employee, referred to as M.B. by the arbitrator, worked with Canadian National Railway (CN) for 26 years. Like all CN employees, he was subject to CN’s drug and alcohol policy that required “biological testing for the presence of drugs and alcohol in the breath is conducted where reasonable cause exists to suspect alcohol or drug use or possession in violation of the policy, including after an accident or incident.” The decision on whether testing was warranted was to be made by a managerial or supervisory employee.
The policy stated that violation would “result in corrective action up to and including dismissal. Refusal to complete the testing process set out under this policy is considered a policy violation.”
In January 2015, the worker refused to take a test following a train accident on the grounds that he wasn’t controlling the movement of the train. CN terminated his employment for violating the drug and alcohol policy, but the union negotiated a return to employment in July. As a condition of his reinstatement, the worker signed a continuing employment contract, which subjected him to frequent performance observations by his supervisor, required him to abstain from illicit drugs at all times, and subjected him to unannounced drug testing from time to time. The agreement stated that if the worker didn’t fully comply with the policy, he would be discharged from employment and wouldn’t be eligible for reinstatement.
On Dec. 17, 2015, CN required the worker to take a drug test. Two days later, the results came in and the worker tested positive for a low amount of marijuana. The worker explained that he had received three dozen cookies from his wife in Jamaica for his birthday and had eaten several. He said if there was any marijuana in his system, it would be from the cookies. He denied taking any medical marijuana or similar medications.
CN held an investigation meeting on Jan. 1, 2016. The worker confirmed his understanding of the continuing employment contract and the consequences of violating it. However, he disagreed with the test results “because I hadn’t taken any drugs.” He then submitted the results of a second test he took on Dec. 23 that came back negative.
The worker said his wife threw him a birthday party and one of the guests brought cookies containing marijuana. He said he ate some of the cookies before bed and had no idea they contained the drug. He only realized what happened after his positive test.
The worker presented a written statement from a friend who was at the birthday party who claimed to have brought the cookies for private consumption and the worker inadvertently ate some of them. The friend apologized to CN and the worker in the statement for causing “damage to my friend’s reputation and lifestyle.”
The worker said he was angry and upset by what happened and ingesting marijuana was “not my doing," but CN terminated his employment for violating the drug and alcohol policy and the continuing employment agreement.
You Make the Call
Should the worker have been terminated?
OR
Should the worker have been allowed to keep his job?
If you said the worker should have been terminated, you’re right. The arbitrator found that a refusal to take a test was a breach of policy because such a refusal raises suspicion. A worker’s claim he avoids drugs is dampened by refusing to take tests, said the arbitrator.
Regardless, CN’s policy indicated that a positive drug test would be considered a violation. The worker knew this because he had been terminated for a refusal before and signed an agreement recognizing the penalty of another violation. He also confirmed this at the investigative meeting.
The arbitrator also considered the likelihood of whether the worker knowingly consumed marijuana, as the test established that he did consume it. The worker’s credibility came into question as the story he initially provided when the positive test came back and the one he told at the investigative meeting were different. He initially said his wife sent him cookies from Jamaica, and later said a friend brought them — even providing a letter from the friend. This inconsistency didn’t help the worker’s cause.
The arbitrator determined that the worker violated the continuing employment agreement and CN’s drug and alcohol policy and his long service wasn’t enough to mitigate his misconduct.
