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Issue link: https://digital.hrreporter.com/i/1283696
that he believed to be alcohol.
At the end of the training ses-
sion, the superintendent of the
shift convened a meeting with
the health and safety manager
and the safety advisor where they
interviewed the worker. The su-
perintendent detected the odour
of alcohol and observed that the
worker was "shaky, flushed, tired
and nervous."
The worker said that he had
had eight beers and two litres
of cider the previous night
and he was awake until 3 a.m.
The superintendent asked the
worker to blow in his face and he
smelled alcohol, so he ordered
drug and alcohol tests under the
policy — a urine sample for the
former and a breathalyzer test
for the latter.
The worker and a union shop
steward objected to the drug test
as there was only the smell of al-
cohol, but the superintendent said
if the worker refused the drug test
it would be deemed to be a posi-
tive test. The worker agreed to the
test, but under protest. By the end
of the meeting, he was very agi-
tated.
The alcohol test came back
negative and the drug test was in-
conclusive. The union grieved the
requirement for the urine sample,
saying it was an invasion of pri-
vacy and there was no reasonable
cause for it.
The arbitrator noted that al-
though the worker attended train-
ing that day and wasn't scheduled
to perform his normal duties, the
drug and alcohol policy still ap-
plied. The worker was employed
in a safety-sensitive position
and could have had his schedule
changed for the afternoon. He
also shouldn't be under the influ-
ence of drugs or alcohol when
taking part in safety training as it
"would be antithetical to the pur-
pose of the training," said the arbi-
trator.
The arbitrator also noted that
drug and alcohol testing involves
a balance between an employee's
right to privacy and the legitimate
business and safety concerns of
the employer. As a result, there
must be reasonable cause — some
basis on which alcohol or drug
testing can be justified.
The arbitrator found that VDC
should have considered one of
three options: the breathalyzer
test for alcohol, the urine sample
for drugs, or both.
The superintendent errone-
ously believed the policy required
both tests automatically, but he
hadn't been properly trained on
it. There was no sign of actual im-
pairment and the only concern
was the smell of alcohol — the
worker's appearance could have
been from being hungover and
sleep-deprived rather than im-
paired, and his agitation was the
result of his opposition to being
tested.
However, management didn't
ask questions to determine pos-
sible explanations.
The arbitrator determined
that impairment wasn't proven
and there was no assessment as
to whether both tests were neces-
sary. As a result, the drug test re-
quiring a urine sample should not
have been conducted.
Reference: Vancouver Drydock and Marine Workers and Boilermakers Industrial Union, Local 1. Mark Brown —
arbitrator. Chris Leenheer, Carly Stanhope for employer. Richard Edgar, Heather Hoiness for union. June 8, 2020. 2020
CarswellBC 1912
Supervisor wrongly believed two tests should be done
B.C. company didn't fully investigate accommodation
anxiety was triggered by getting
overheated. He provided a medi-
cal certificate stating that he was
"unable to tolerate warm/hot en-
vironments" and he would have
to remove himself to cool off at
times.
On June 17, the worker felt
overheated and had an anxiety at-
tack. He took more time off and
provided a doctor's note recom-
mending a graduated return to
work in temperature-controlled
environments along with a re-
turn-to-work assessment that
said he should avoid hot areas.
The worker told the company that
he didn't want to return to the oil-
ing department because it was
"full of triggers."
Zellstoff temporarily assigned
the worker to its relief pool, al-
though he continued to hold the
classification — and higher wage
rate — of lubrication mechanic.
In October, the worker was
diagnosed with anxiety and ago-
raphobia and provided medical
information stating that "if he is
forced to return to his previous
job… his current return to work
will fail."
In 2017, the worker provided a
return-to-work report listing ago-
raphobia, heat intolerance, and
fear of heights that constituted
"a lifelong chronic condition that
will likely not improve further."
This was the first time Zellstroff
learned that the worker required
permanent accommodation and
had a fear of heights.
In December, a medium equip-
ment operator (MEO) position
became available that was within
the worker's restrictions, but it
was a lower-paying job. Zellstroff
offered to accommodate the
worker in the MEO job with the
lubrication mechanic wage rate
for six months, a blended rate for
another six months, and then the
regular MEO rate.
However, the worker felt blind-
sided by the pay cut. The company
agreed to extend the higher wage
rate for another six months.
In May 2019, a log yard opera-
tor position that was within his
restrictions became available with
a higher wage than the MEO posi-
tion, but the worker didn't apply.
The union filed a grievance,
claiming the wage reduction was
a breach of the duty to accommo-
date.
The arbitrator found that while
it was possible to accommodate
an employee with a disability in a
lower-paid job, it was only appro-
priate if it was the only suitable
position in which accommoda-
tion was available. In this case, the
medical information indicated
that the worker couldn't return
to normal duties and the worker
himself didn't want to return to
the lubrication mechanic posi-
tion.
The arbitrator also found that
the worker and the union didn't
inquire about modified lubrica-
tion mechanic duties until after
the wage reduction proposal.
However, Zellstoff didn't consider
the possibility either.
"The concern, from an accom-
modation perspective, is that the
employer ruled out the possibil-
ity of modifying the duties of a
lubrication mechanic to meet
the [worker's] restrictions with-
out ever obtaining or requesting
any medical information that ex-
pressly addressed and considered
whether the duties could be so
modified," said the arbitrator.
The arbitrator determined that
Zellstoff breached its duty to ac-
commodate when it assigned the
worker to the lower-paid position
without first considering accom-
modation with modified duties or
a similar position in the oiling de-
partment.
Zellstoff was ordered to pay
the worker compensation for the
pay reduction, but only until the
date the log yard operator posi-
tion became available — when the
worker didn't apply for it, he didn't
live up to his part of the accommo-
dation process — plus $2,500 in
damages for injury to dignity, feel-
ings and self-respect.
Reference: Zellstoff Celgar Partnership and Public and Private Workers of Canada, Local 1. Koml Kandola — arbitrator.
Nazeer Mitha. for employer. William Clements for union. July 23, 2020. 2020 CarswellBC 1916