You make the call
This instalment of You Make the Call features an airport employee who tested positive for marijuana.
The worker was a ramp agent at Toronto’s Pearson International Airport employed with Airport Terminal Services Canadian Company (ATS), a company that provides service and ramp operations to airlines at various airports throughout North America. At Pearson airport, ATS serviced United Airlines, Air India, Copa Air, and Air Mexico.
As a ramp agent, the worker performed duties at or around aircraft as they were getting ready to leave or shortly after they landed, including operating ground support equipment, ensuring the gate was free of foreign objects and debris, wedging the aircraft tires to keep the aircraft from moving, visually inspecting aircraft for damage, assisting the jet bridge move into place, loading baggage onto the aircraft, moving the tow bar into place, and operating a push tug to move the aircraft to its departure location.
On one occasion, airport authorities found a joint that hadn’t been consumed in the worker’s possession. This was reported to the ATS duty manager, as it was against the ATS drug and alcohol policy that banned possession of “unlawful drugs” at work, but it wasn’t passed along to upper management and no discipline was given to the worker.
On July 7, 2016, the worker was part of a three-person ramp crew assigned to an aircraft that had just landed. The worker rolled a tow bar to a co-worker to put on the aircraft, but the co-worker missed catching it. The tow bar struck the aircraft and damaged one of its lamps, which they immediately reported to the pilot and ATS. The worker and his crew continued to off-load and load the aircraft while maintenance repaired the lamp, but the flight ended up leaving 45 minutes late.
The worker and his co-worker were told to file a written statement about the incident and were advised they would have to undergo a post-incident drug and alcohol test.
The worker passed a breathalyzer test and provided a urine sample. The two ramp agents had a conference call with ATS management, where it was determined they hadn’t followed the standard operating procedures. The worker was suspended for two days pending the outcome of the urinalysis.
One week after the incident, the testing facility informed ATS that the worker’s urine sample came back positive for marijuana — a small amount of 181 nanograms per millilitre. The worker was interviewed and he stated that he had a medical prescription for five grams per day of marijuana — the highest daily dose that could be prescribed — for pain relief from a work-related back injury and a knee injury, but he didn’t have a substance abuse problem. He also said he didn’t know how strong the marijuana he was using was, but was consuming three to four grams on days he didn’t work and two grams on days he worked — one gram before work and one gram after.
ATS presented the worker with a “Final Warning — Mandatory Referral to EAP” and was told he would have to agree to its terms — acknowledge a substance abuse problem, enter an EAP program, meet with a counsellor, remain drug- and alcohol-free, and undergo random testing. He was given five days to explore alternatives to medical marijuana and sign the letter.
The worker refused to agree to the terms and didn’t sign the letter, so ATS terminated him for violating its drug and alcohol policy — which prohibited working while impaired by or under the influence of drugs or alcohol and stated that a positive test would result in “immediate discharge for cause, absent mitigating circumstances.”
You Make the Call
Did the employer have just cause for dismissal?
OR
Was dismissal inappropriate?
If you said dismissal was inappropriate, you’re right. The arbitrator noted that the worker’s position was a safety sensitive position in which impairment could have serious consequences, but post-incident testing should be limited to “serious” or “significant" incidents. The incident in question could be considered significant because, though the damage to the aircraft wasn’t significant, the resulting 45-minute delay of its departure was. However, ATS required the worker to take a test before investigating the circumstances or considering his privacy interests, which was an improper application of the policy, said the arbitrator.
However, the worker had previously been found with marijuana at work. Though he hadn’t been disciplined, it was a violation of the policy. This meant a post-incident test was appropriate, said the arbitrator.
In addition, the policy prohibited “unlawful drugs” but the worker was consuming marijuana lawfully with a prescription and the test only revealed marijuana in the worker’s system, not impairment .
The arbitrator also found that the policy allowed for mitigating circumstances to circumvent automatic discharge, but this was limited to employees who had addictions and exc;ided those who had medical prescriptions. As a result, the policy failed to accommodate employees with prescriptions and violated the Canadian Human Rights Act, said the arbitrator. See Airport Terminal Services Canadian Co. and Unifor, Local 2002 (Sehgal), Re, 290 L.A.C. (4th) 89 (Can. Arb.).
