Canadian Employment Law Today

August 15, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Did the employer have just cause to discharge the worker? OR Should the employer have done more to help the worker rehabilitate and return to work? Drug testing double failure THIS INSTALMENT of You Make the Call features a worker who failed a drug test, re- ceived 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. e mine was also a "dry mine" — use, possession, or impair- ment by alcohol or non-prescription drugs was strictly prohibited. e 44-year-old worker was employed with LDI as a miner for a period of time be- fore being laid off in 2008. He opted for a sev- erance package and was terminated. LDI hired the worker back in September 2011 as a miner — a position defi ned in the collective agreement as safety sensitive. He was trained on LDI's rules and policies, in- cluding its substance abuse policy. On Feb. 7, 2015, the worker was training on a remote scoop. Company policy re- quired 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. e 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. e screening was completed and the test came back positive for THC — the active ingredient in marijuana. e 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 confi rmed 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 indefi nite unpaid leave pending an evalu- ation by a substance abuse professional and a doctor's clearance to return to work. e worker signed a letter on Feb. 17 that he understood he was on a last chance agree- ment — meaning a failure to comply with the conditions of regular testing and counselling would result in immediate termination. e worker successfully completed a 21- day program and his post-treatment report recommended "random testing be complet- ed twice monthly for up to two years" plus regular reports on his counselling. On his fi rst day back, Aug. 4, the worker un- derwent a drug screening in accordance with LDI's policy. e test came up positive for oxy- codone and cocaine in amounts fi ve times the permissible amount under company policy. LDI terminated the worker's employment. e 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. e worker said he was against cocaine, though he admit- ted to using cocaine for about one year in 2003. e worker added that he sometimes crushed his Percocets and "snorted" them through a straw and suggested that the fam- ily member had used the same straw to take cocaine, leaving residue that the worker in- gested with his Percocets. IF YOU SAID the employer should have done more to help the worker, you're right. e arbitrator acknowledged the worker had "a serious drug abuse habit," for which he had some success treating before he returned to work. e 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 support- ed a return to drug abuse behaviours." e arbitrator also found the worker downplayed the amount of cocaine he con- sumed, 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 co- caine use, he was open about his use of mari- juana. It's likely that "having a regular job could be a central feature in the (worker's) eff orts to establish a new drug-free life for himself," said the arbitrator, adding that the worker wasn't "at heart a bad person." e arbitrator determined the worker deserved an opportunity to reclaim his em- ployment with LDI, under strict conditions: full compliance with LDI's substance abuse policy; evidence of medical treatment for ad- diction; successful completion of a residential addiction program; after-care and counsel- ling; and a medical report clearing his return to work. At this point, LDI would reasonably determine if the worker was fi t to work, with the option of placing him in a non-safety sen- sitive position for up to 12 months before re- turning 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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