Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 more Cases crew and the hotel's assistant manager were asked if they could smell alcohol and they confirmed they could not. e conductor said he would not submit to testing as he had not been drinking, nor had he been involved in any accident or al- tercation. He was given phone numbers for union representatives but could not reach any of them. e superintendent, however, did not want to delay the testing as that could affect the results. When the testing agent arrived, the engi- neer first refused but then calmed down and agreed to testing. He registered a blood alco- hol level on two tests that was above the limit for intoxication. e superintendent informed the con- ductor of the implications of refusing test- ing, which were that a refusal would be treated the same as a positive test and would result in his removal from service and an investigation, with possible discipline up to and including dismissal. e conductor once again refused and he was sent home along with his crewmate. CPR later termi- nated his employment. e arbitrator found CPR had reason- able grounds to test the conductor. ough the conductor's droopy eyes and slower speech could have been the result of tired- ness, both the trainmaster and the super- intendent made independent assessments of him and they came to the conclusion he had consumed alcohol. e assessments were made separately from the engineer and not as "an afterthought" related to the situation with the taxi driver, which the union suggested in its grievance on behalf of the conductor. e arbitrator found the superintendent's time in the closed vehicle with the conduc- tor in which he smelled alcohol and observed behaviour consistent with someone trying to conceal he had consumed alcohol provided enough evidence to warrant testing. e arbitrator also found the conductor's ex- planation that he was "very relaxed" wasn't credible in the circumstances. e fact the others couldn't smell alcohol didn't change the observations of the superintendent and the trainmaster, said the arbitrator. ough the conductor was unable to con- tact union representatives, the arbitrator found he was given reasonable opportunity to do so, as the testing agent arrived about 15 minutes after the conductor was first given phone numbers for union representa- tives and testing of the engineer took about 30 minutes. CPR's testing policy stated that testing must be done as soon as possible after the decision to test is made. "I am inclined to agree with the company that it was not unreasonable to refuse to wait any longer in the hopes that the (conductor's) calls would be imminently returned," said the arbitrator. e arbitrator found CPR was entitled to draw a negative inference from the conduc- tor's refusal to testing, as was made clear to him and was stated in the policy. Since he was in a safety sensitive position, use of alco- hol was a serious offence and CPR needed a strong deterrent for such behaviour, said the arbitrator. "By refusing to undergo testing in the cir- cumstances of this case, only one reasonable conclusion can be drawn: the (conductor) was not being truthful in his denial of any involvement in drinking at the time he was confronted by (the trainmaster) in the ho- tel lobby and by (the superintendent) in his truck," said the arbitrator. See Canadian Pacific Railway and Team- sters Canada Rail Conference (Flinn), Re, 2014 CarswellNat 4752 (Can. Railway Office of Arb. & Dispute Resolution). Supervisors' observations warranted test « from ALCoHoL TEST on page 1 « from EmPLoyEE fIrED on page 3 recorded the date of the incident as "on or around Feb. 28, 2013." He also said he didn't report it because he felt no one would be- lieve him. e arbitrator had difficulty believing Tropak couldn't remember the exact date of the incident and other important details, particularly since past behaviour showed Tropak "paid meticulous attention to dates and times in his correspondence" when it came to his past complaints. It was more likely the date was changed so Tropak's story would work with when Ford wasn't on vaca- tion. e lack of a definite date also made it more difficult for Ford to provide an alibi, said the arbitrator. When attempts were made to follow up and obtain more details, Tropak stalled and delayed things, such as not coming to work or saying he didn't have all the details. As it turned out, the union's complaint on March 28 came when the university was trying to discuss performance issues with Tropak and was an attempt to deflect attention from himself, said the arbitrator. e arbitrator found Tropak made up the incident in order to get back at Ford be- cause of Ford's complaint about him walking around the lunchroom in a hard hat and sun- glasses, along with Ford's "efforts to exclude and humiliate him before." "I agree with the university's conclusions that the circumstances of Mr. Tropak's late reporting; his inability to provide a date and relevant details at the time of reporting are inconsistent with what some- one who was truly threatened would have done," said the arbitrator. e arbitrator expressed concern regard- ing the way Tropak was bullied in the work- place and the way he was treated. However, this was not enough to excuse the fabrica- tion of such a serious allegation of work- place violence against a co-worker. e ter- mination was upheld. "Making an unfounded allegation of a threat of workplace violence is malicious. Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment rela- tionship with someone who lies about such serious matter," said the arbitrator. For more information see: • University of Toronto and CUPE, Lo- cal 3261 (Tropak), Re, 2014 CarswellOnt 17047 (Ont. Arb.). Details of allegation were sketchy, including date CPR's alcohol testing policy stated that a refusal would be treated the same as a positive test. Employee had a history of paying 'meticulous attention to dates and times' in previous complaints

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