Canadian Labour Reporter

Trackl for two days for failing to follow safe driving methods and having a preventable accident. A month later, he got into an argu- ment with a female Pharmasave employee about whether he had to accept and take packages that the woman wanted to return. The woman put a package on the truck and Trackl removed it. Trackl ended up shoving the woman, she tried to punch him, and Trackl responded by punch- ing her in the face and then grab- bing her arms. The altercation was captured by surveillance cameras. UPS investigated and decided to terminate Trackl's employ- ment for violating its Professional Conduct Policy. Trackl filed a grievance and reached a settle- ment on June 16 resulting in his reinstatement with a time-served suspension. At the settlement meeting, Trackl expressed re- morse and management believed he was "willing to turn it around." However, about one week after his termination, Trackl had ob- tained a job with FedEx. On June 15, the day before his reinstate- ment, he texted a friend who used to work at UPS. The text included a photo of Trackl wearing a FedEx uniform with the caption "F--k UPS." Trackl later said that he in- tended it to be funny but also that he wasn't going to let them "try to starve me out and ruin me finan- cially." He also sent texts to a UPS employee with the photo and the message "UPS is toxic." He sent the photo to two other UPS em- ployees. The former UPS employee forwarded the text to the opera- tions management specialist and she also heard employees talk- ing about the other texts. She in- formed the supervisor, who then passed it on to the company's di- vision manager for B.C. However, the division manager didn't see it until the morning of June 17, the day after UPS had reinstated Trackl. The division manager believed that the comment about UPS being toxic showed that Trackl had been dishonest about his re- morse, which was a breach of the dishonesty policy. UPS retracted the reinstatement. The union filed another griev- ance, claiming that Trackl was genuinely remorseful at the set- tlement meeting and the texts were private communications. It added that at the time the texts were sent, Trackl wasn't an em- ployee so he couldn't be disci- plined for them. The arbitrator noted that "hon- esty is of critical importance to UPS" and was at the core of the employment relationship. In ad- dition, Trackl was aware of the honesty policy and had signed off on it. The arbitrator found that the texts sent just one day before the settlement meeting were "simply not consistent with a sincere ex- pression of remorse" and indicat- ed that Trackl faked his remorse so he could get his job back — which was higher-paying than the one with FedEx. Although Trackl claimed it was a joke, he sent two different texts with the "toxic" comment. The arbitrator also found that although the texts were intended to be private messages sent when he wasn't an employee, the rea- son for dismissal was Trackl's conduct at the meeting, not the texts themselves — the texts were evidence showing that he was dis- honest. Although Trackl had 12 years of service with UPS, the arbitra- tor found that the seriousness of his dishonesty combined with two additional recent instances of discipline for failing to follow policies provided grounds for termination. The grievance was dismissed. Reference: United Parcel Service and TC, Local 213. Koml Kandola — arbitrator. Mark Colavecchia for employer. Bryan Savage for employee. July 26, 2021. 2021 CarswellNat 2883 two years. If he relapsed, he was required to inform Nutrien before his next shift and the company would work with him. If he didn't inform the company of a relapse, his employment would be termi- nated. The first random test on Aug. 13, 2018, came back non-negative for amphetamine. Pepper advised that he had a prescription and a medical review officer determined that proper use of the prescription wouldn't pose a safety threat. On Aug. 26, 2019, a random test came back positive for can- nabis. Pepper was removed from work and Nutrien sought a sub- stance abuse assessment, which found he didn't meet the criteria for a cannabis use disorder. Pep- per explained that he had eaten a marijuana gummy while off-duty a few days before the test. Nutrien required him to sign a second re- turn-to-work agreement stating that it was prepared to terminate his employment if he failed to fol- low the terms. The second agree- ment was similar to the first and extended random testing to Sept. 9, 2020. In April 2020, Pepper's doctor prescribed him medical mari- juana for insomnia, with instruc- tions that he shouldn't work for six hours after taking it. A couple of weeks later, a random drug test was requested and Pepper said that he'd likely fail, explain- ing that he had a marijuana pre- scription and hadn't told anyone in HR. Pepper tested non-negative for cannabis and explained that he didn't think he had violated the policy because it was a prescrip- tion, like the amphetamine. A medical review officer noted that Pepper was taking his medication as prescribed, but it could interfere with his ability to perform safety- sensitive duties safely. Pepper's doctor cleared him for work as long as he followed the instructions on the prescription. However, Nutrien felt that Pepper had breached the return-to-work agreement by using cannabis and not disclosing his prescription. It terminated his employment on June 4. The union argued that Pepper only used prescription drugs and followed his doctor's instructions to avoid a negative impact at work, so there was no policy breach. The arbitrator found that Pep- per knowingly reported for work with marijuana in his system and failed to inform Nutrien of his pre- scription, even though he knew he would fail a drug test. This was a violation of the second return-to- work policy. The arbitrator noted that nei- ther the policy nor the agree- ment explicitly imposed a duty to disclose a medical prescrip- tion, but Pepper's experience with more than a year of random tests and the positive amphet- amine results "placed a respon- sibility on him to disclose his marijuana prescription," the ar- bitrator said. However, the arbitrator noted that Pepper wasn't deliberately flouting the policy or abusing drugs or alcohol — he foolishly believed that Nutrien would treat the positive cannabis result the same as his positive amphetamine results. The arbitrator determined that termination was excessive and ordered Nutrien to reinstate Pep- per with a two-month suspen- sion. Pepper was also required to participate in a return-to-work education session before his rein- statement. Reference: Nutrien and USW, Local 7552. Daniel Ish — arbitrator. Monica Bokenfohr, Leah Gessell for employer. Gary Bainbridge, Kelly Upton for employee. Aug. 3, 2021. 2021 CarswellSask 460 Worker had marijuana prescription, didn't inform Nutrien Texts criticizing company sent day before settlement meeting < Drug pg. 1 < Dishonesty pg. 1 7 CANADIAN LABOUR REPORTER CANADIAN LABOUR REPORTER COLLECTIVE AGREEMENTS Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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