Canadian Employment Law Today

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Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 Worker's drug problem worse than initially admitted THiS inSTAlmEnT of You Make the Call features a worker in a safety sensitive posi- tion who was fi red after testing positive for drug use. e 51-year-old worker had more than 30 years of service as a conductor with Cana- dian Pacifi c Railway (CPR) in British Colum- bia and had a number of instances of disci- pline during that time, though by early 2012 he had no demerits on his record. In the evening of Feb. 25, 2012, the worker and his crew — who had been on duty for nine hours — were involved in a sideswipe collision and derailment after they tried to quickly clear a private crossing. CPR con- ducted post-incident drug and alcohol test- ing on the crew, and the worker's tests came back positive for drugs. e entire crew was disciplined follow- ing an investigation and CPR conducted a separate investigation of the worker and his positive drug test. CPR asked the worker what substance he had taken. ough the worker had the right to refuse to answer the question with no negative inference under CPR's substance testing policy, he said he had used a small amount of cocaine the evening of Feb. 24, about 12 hours before he started his shift. e worker said the cocaine use was a "one time thing" and he didn't have a dependency problem. He was embarrassed and said he was willing to do whatever CPR wanted to keep his job. A week later, at another meeting, the worker said he had not had a drink since he was 19 years old and he had used cocaine in 1980s but had given it up. He claimed his use of cocaine on Feb. 24 was the fi rst time he had used it in many years. He also said he didn't believe he had been impaired on his shift. e worker agreed to allow CPR to release his test results to its occupational health ser- vices, which felt the test results showed the worker had used more cocaine before his shift than he was letting on. A second investi- gation led to an interview in which the worker admitted he had snorted 10 to 12 lines of co- caine and that "what may be a small amount to me, is not considered a small amount." CPR asked him if had had sought treatment and the worker said he had not. e worker reiterated he would agree to any conditions to keep his job, but CPR ter- minated his employment for "lifestyle choic- es that are incompatible" with his safety sensitive position as well as providing false and misleading information during a formal investigation. yoU mAkE THE CALL Was there just cause for dismissal? OR Were there more appropriate steps for CPR to take? iF yOU SAiD CPR should have taken more appropriate steps, you're right. e arbitra- tor found the information CPR had on the worker's drug use and his history should have alerted it to the possibility the worker had a drug addiction, which should have prompted it to take steps under the Cana- dian Human Rights Act. e arbitrator noted that although the worker provided false and misleading information regarding the amount of cocaine he used and the circumstances of his positive test, he also provided information he wasn't required to disclose. e arbitra- tor also found that "not being entirely honest is part and parcel of the (worker's) disabil- ity." e union in its grievance provided evi- dence that the worker was attending sup- port groups in both Alcoholics Anonymous and Narcotics Anonymous as well as coun- selling and treatment programs in an eff ort to address his cocaine addiction. e arbi- trator found this pointed to the worker's potential for rehabilitation, but it was infor- mation that wasn't available to CPR at the time of dismissal, so the railway couldn't be penalized for not knowing it. CPR was ordered to reinstate the worker to his position, but without compensation for lost pay or benefi ts. e reinstatement was contingent on the worker being subject to these conditions or face dismissal: • e worker must completely abstain from alcohol and illicit drugs indefi nitely • e worker must attend at least three Nar- cotics Anonymous meetings each week • e worker shall be subject to regular med- ical monitoring for abstinence for at least three years and random testing at least 18 times a year. • e worker be on two months of medical leave prior to reinstatement, during which medical monitoring and testing would continue. • CPR may request a doctor's certifi cate ev- ery six months with recommendations for ongoing treatment. For more information see: • Canadian Pacifi c Railway and Teamsters Canadian Rail Conference (Armillotta), Re, 2014 CarswellNat 5029 (Can. Railway Offi ce of Arb. & Dispute Resolution).

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