Canadian Employment Law Today

September 17, 2014

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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GSt #897176350 Published biweekly 22 times a year Subscription rate: $299 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: carswell.customerrelations Website: Thomson reuters canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen lorimer Publisher: John Hobel (on leave) Managing Editor/Acting Publisher: todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. 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 8 Worker gets testy over post- incident drug and alcohol test THIs InsTALMenT of You Make the call involves a worker who refused to take a drug test following an incident in the workplace. Wade Johnston was hired as a rigger by Clearwater Fabrication GP, a manufactur- ing shop in Edmonton, in June 2012. Clear- water's workplace involved heavy equip- ment and other manufacturing elements, so workplace safety was a top-of-mind issue for the company. As such, Johnston and other employees underwent a safety orientation in which attendance had to be confi rmed. An additional safety initiative included a part of the collective agreement that fea- tured alcohol and drug guidelines adopted from the Canadian Model for Providing a Safe Workplace — a negotiated plan for the construction industry that had been incor- porated in many collective agreements in the industry with the support of unions. e plan was considered a "balancing of rights" that had been arranged through the bar- gaining process so unions would be onside with it. e plan stipulated that when an incident — defi ned as an "occurrence, circumstance or condition that caused or had the poten- tial to cause damage to person, property, reputation, security, or the environment" — happened in the workplace, a supervi- sor or manager must request any employ- ees suspected to be involved to submit to an alcohol and drug test. Employees were not permitted to refuse. On July 18, 2012, Johnston was tasked with moving a 56-foot length of pipe that had been lying on the ground for some time. e pipe consisted of two shorter pieces that had been welded together. Johnston used a crane with two short slings to move the pipe, but the pipe bent without more support and the welds gave way. e pipe broke into two pieces at the point of the weld, with one piece falling and the other swinging dangerously. e rigging foreman concluded the rig- ging had been done improperly — longer slings or two cranes should have been used so the pipe's weight was better distributed and put less stress on the welds. ere also appeared to be no tag lines to prevent ro- tation, which were required for any lifts of more than six inches. e foreman asked Johnston about the accident, but Johnston reacted loudly and aggressively, showing concern that he would be ordered to take a drug and alcohol test. Johnston was brought to management but continued to express anger and aggression. He blamed the accident on poor welding of the pipe and suggested he was being singled out. e foreman didn't notice any signs of impairment, though Johnston reacted to the request to take a test by "stomping around with foam in the corner of his mouth," swearing and saying everyone should be tested. e health and safety manager asked Johnston several times to take a test, but he continued to be agitated and created a com- motion in the offi ce. Johnston eventually left the shop without being tested. On July 19, Clearwater terminated John- ston's employment for refusing a drug test as required under the collective agreement as well as directing anger at members of management in response to the request for a test. e union challenged the dismissal, argu- ing Clearwater lacked proper cause to de- mand a test and the company didn't try to fi nd out who was responsible for the weld. Instead, the company singled Johnston out, said the union. yoU MaKe The caLL Was dismissal too much for the drug test refusal and the worker's behaviour? OR Was dismissal an appropriate response? IF YOu sAID dismissal was appropriate, you're right. e arbitration board noted that Clearwater's health and safety man- ager decided to request a test based on the incident reports, but Johnston had an op- portunity to present any information to help the company rethink the request under the collective agreement. However, John- ston instead "relied on shouting, dropping names, and making unhelpful suggestions as to where the policy might be fi led," said the board. e board found the main cause of the pipe to break was the extent it bent when it was lifted — the result of inadequate rigging that caused too much stress on the weld. As far as Clearwater was concerned, Johnston as a rigger should have realized the rigging he set up was inappropriate for a pipe of that size that was welded together. e board acknowledged Clearwater should have investigated more into who else could have been involved, such as the welder — though the pipe had been welded some time ago and had lain on the ground for a while — or the person responsible for holding the tag line, but this didn't excuse Johnston's role in the incident as a rigger and the requirement to test him. " e steps in the policy are quite specifi c. In these circumstances, the employer must under (the collective agreement) request an employee to submit to a test when they have reasonable grounds to believe that an employee was involved in an incident. By his own admission, Mr. Johnston was involved in this incident and a test was therefore jus- tifi ed," said the board. e board found dismissal for refusing the alcohol and drug test was justifi ed under the model for a safe workplace enshrined in the collective agreement — particularly when taking into account Johnston was a very short-term employee with one month of service. For more information see: • Clearwater Fabrication GP Inc. and UA, Local 488 (Johnston), Re, 2013 Carswel- lAlta 1445 (Alta. Arb.).

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