Canadian Employment Law Today

May 29, 2019

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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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 ©2019 HAB Press, a subsidiary of Key Media 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, mechani- cal, 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. GST #897176350 Emplo y ment Law Today Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE HAB PRESS, A SUBSIDIARY OF KEY MEDIA 312 Adelaide Street West Suite 800, Toronto, ON M5V 1R2 President: Tim Duce Editor: Jeffrey R. Smith Email: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Emplo y ment Law Today Canad ad ad ad ad ad a ian an an 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. e arbitrator noted that the worker's position was a safety sensitive po- sition in which impairment could have seri- ous consequences, but post-incident testing should be limited to "serious" or "signifi cant" incidents. e incident in question could be considered signifi cant because, though the damage to the aircraft wasn't signifi cant, the resulting 45-minute delay of its departure was. However, ATS required the worker to take a test before investigating the circum- stances 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. ough he hadn't been disciplined, it was a violation of the policy. is meant a post-incident test was appropriate, said the arbitrator. In addition, the policy prohibited "unlaw- ful drugs" but the worker was consuming marijuana lawfully with a prescription and the test only revealed marijuana in the work- er's system, not impairment . e arbitrator also found that the policy allowed for mitigating circumstances to cir- cumvent automatic discharge, but this was limited to employees who had addictions and exc;ided those who had medical prescrip- tions. As a result, the policy failed to accom- modate employees with prescriptions and violated the Canadian Human Rights Act, said the arbitrator. See Airport Terminal Ser- vices Canadian Co. and Unifor, Local 2002 (Sehgal), Re, 290 L.A.C. (4 th ) 89 (Can. Arb.). Worker using medical marijuana fails post-incident test THIS INSTALMENT of You Make the Call features an airport employee who test- ed positive for marijuana. e 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 Air- lines, 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 for- eign objects and debris, wedging the aircraft tires to keep the aircraft from moving, visu- ally inspecting aircraft for damage, assisting the jet bridge move into place, loading bag- gage 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. is 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 air- craft that had just landed. e worker rolled a tow bar to a co-worker to put on the air- craft, but the co-worker missed catching it. e tow bar struck the aircraft and damaged one of its lamps, which they immediately reported to the pilot and ATS. e worker and his crew continued to off -load and load the aircraft while maintenance repaired the lamp, but the fl ight ended up leaving 45 minutes late. e worker and his co-worker were told to fi le a written statement about the incident and were advised they would have to under- go a post-incident drug and alcohol test. e worker passed a breathalyzer test and provided a urine sample. e two ramp agents had a conference call with ATS man- agement, where it was determined they hadn't followed the standard operating pro- cedures. e worker was suspended for two days pending the outcome of the urinalysis. One week after the incident, the testing fa- cility informed ATS that the worker's urine sample came back positive for marijuana — a small amount of 181 nanograms per mil- lilitre. e worker was interviewed and he stated that he had a medical prescription for fi ve grams per day of marijuana — the high- est 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 sub- stance abuse problem. He also said he didn't know how strong the marijuana he was us- ing 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 fi ve days to explore alternatives to medical marijuana and sign the letter. e 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 infl uence of drugs or alcohol and stated that a positive test would result in "immediate discharge for cause, absent miti- gating circumstances."

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