Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER April 7, 2014 April 7, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 The Real Deal on People: Straight Talk on How the CHRO Creates Business Value transcends borders and corporate cultures to offer unprecedented insight into the increasingly vital role of the Chief Human Resources Officer (CHRO) in the success of a company. Former CHRO Les Daken chronicles his successful journey to the C-suite in this new publication. He shares a wealth of accumulated knowledge that includes real-life situations involving the author and other top CEOs, board directors and CHROs. By frankly recounting real experiences from more than three decades of working with top-tier companies, the author brings life to the theory and philosophy. This unique new resource: ȕ Offers authoritative information in an easy-to-read conversational format ȕ Gives personal insights into all of the critical functions and interactions of the CHRO, including labour and industrial relations in a multinational environment ȕ Provides perspectives from current or former CEOs on working with the CHRO ȕ Helps CEOs and board directors better understand the role of the CHRO and how to leverage their own CHRO ȕ Provides current CHROs with new tips and tricks and aspiring CHROs with a career roadmap Practical, no-nonsense advice from a seasoned CHRO Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986064-65203 $75 Hardcover approx. 450 pages January 2014 978-0-7798-6064-7 All proceeds from this book will be donated to the Alzheimer Society of Canada. Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. New Publication The Real Deal on People: Straight Talk on How the CHRO Creates Business Value Les Dakens Flimsy evidence not enough Flimsy evidence not enough to knock CP mechanic off track to knock CP mechanic off track Smell of alcohol did not prove worker was unfi t for duty, violated agreement Smell of alcohol did not prove worker was unfi t for duty, violated agreement Canadian Pacifi c Railway has been or- dered by an arbitrator to reinstate a worker dismissed for showing up for work under the infl uence of alcohol. The 55-year-old worker was a journeyman railcar mechanic and senior crane operator for CP Rail in Alberta. He also held a supplementary service position that entitled him to be called on emergency calls and wrecking service work, which provided a signifi cant amount of overtime. e mechanic had worked for the railway his entire adult life, putting in 36 years of service, and was to become eligible for a full pension at the end of 2013. On March 19, 2013, the me- chanic put in a long day dealing with a derailment, working more than 12 hours. e next day, he reported for his regular shift at 7 a.m. When he completed his shift at 3 p.m., he went home, drank a beer and had a nap. He then had dinner with his wife at 5:15 p.m. and had another beer. Later that evening, at about 7:45 p.m., the mechanic's supervi- sor called and asked him to come in and re-rail a derailed freight car at the yard. e mechanic lived nearby so he accepted the call and arrived at the garage shortly after 8 p.m. and began to confi gure the crane. Lingering odour of alcohol Two co-workers arrived in the ga- rage and discussed with the me- chanic how to proceed with the crane. During the discussion, one of the co-workers smelled alco- hol on the mechanic's breath and thought he was "kind of fi dgeting and looked to be in a rush." After the mechanic and the other worker left to do the job, the co-worker called the super- visor and told him what he had observed. When the mechanic arrived at the railyard, the supervisor was there to meet him. e supervi- sor could smell alcohol on the mechanic's breath and asked him if he had consumed any alcohol before reporting to work. e mechanic replied that he had two beers several hours ago. e supervisor told him he was being held out of service and would be taken for a substance test. e mechanic felt he was ca- pable of performing his duties, so he consented to the test, confi dent it would exonerate him. In fact, no one other than the one co-worker observed any signs of impairment. Another supervisor took the me- chanic to a testing facility but it was closed because it was 10:30 p.m. A tester was sought out but no qualifi ed technician could be found. Shortly after midnight, the CP police were contacted — but they said because of the delay, a substance test would no longer be accurate. e second supervi- sor also reported smelling alcohol but saw no other indications of impairment. Rules of engagement e mechanic was held out of ser- vice while CP investigated the in- cident. e collective agreement required supplementary service employees, such as the mechanic, be fi t for duty and able to report within one hour of being called. CP also had a policy for drug and alcohol procedures that prohib- ited the consumption of alcohol while "on call or on scheduled call" for employees in critical and safety-sensitive positions or while "in control of a CP vehicle or mov- ing equipment." CP interviewed the mechanic during the investigation. On April 11, 2013, CP deter- mined the mechanic had breached both the collective agreement and its drug and alcohol policy, so it terminated his employment. Arbitrator disagrees e arbitrator noted a co-worker and two supervisors smelled alco- hol on the mechanic's breath but the only abnormal behaviour ob- served was by the co-worker, who felt fi dgeting and being in a rush were suspect. However, this was not evidence of intoxication, particularly since the mechanic had worked over- time the day before, making it "reasonable to conclude that he was in a rush to fi nish the work and go home to bed," said the arbitrator. e others present felt the me- chanic was acting normal. And the smell of alcohol and the ob- servation of one person out of fi ve did not satisfy CP's obligation to prove the mechanic was unfi t for duty and violated the collective agreement, said the arbitrator. In addition, the railway's drug and alcohol policy created a higher standard than the col- lective agreement, which was a unilateral rule imposed by the railway and was not agreed to by the union. Jeff rey Smith Legal View QUICK > pg. 14 A co-worker and two supervisors smelled alcohol on the mechanic's breath but the only abnormal behaviour observed was "fi dgeting" and "being in a rush."

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