Canadian Employment Law Today

6 | February 4, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Worker's story didn't pass smell test immediately. One of the workers spotted Panagab- ko near a vent in the storage area and he ducked under it as they entered the room. ey asked Panagabko how it was going and Panagabko replied "good" with what they described as "a big, goofy grin." Pan- agabko left the room and the two workers noticed a desk by the vent that had a small pile of smoked butts — or "roaches" — on it. One worker smelled the roaches and was confident they contained marijuana. e two workers discussed what they should do and one of them said he would speak to Panagabko and tell him not to bring drugs to work. ey were reluctant to report it because they didn't want to get Panagabko in trouble. However, after one worker went home, he was asked to come back in the af- ternoon to fill in for Panagabko, who had gone home sick. When he arrived back at the school, the worker checked the desk in the boiler room and the pile of roaches was gone. e smell of marijuana was gone but there appeared to be crumbs on the desk. Panagabko had been the only person in the room other than the two workers. Co-workers reported marijuana in the workplace Frustrated at having to cover for Panagab- ko, the two workers decided to call the su- pervisor because they felt marijuana use was affecting Panagabko's work. When the supervisor arrived, they took him to the boiler room and told him what they had seen. e supervisor detected a faint smell that got stronger around the desk. e supervisor took a photograph of the crumbs on the desk and brought them back to the administration office. Panagabko's record was examined and it was discov- ered he had issues with attendance in the past, including an instance of filling out his timesheet for an entire day's work when he had only worked a few hours. e school board sent a letter to Pan- agabko asking him to attend a meeting with the superintendent on Dec. 20. At the meeting, Panagabko said he was a recovering alcohol addict but denied smok- ing marijuana at the school, claiming he hadn't used it for several months. Panagab- ko added marijuana had affected his job sev- en years earlier and it would be "unrealistic" for him to do it again. He did admit he used to smoke cigarettes in the boiler room but also had not done so for several months as it was against school policy. Panagabko suggested the smell in the boiler room may have been from gas from his stomach or his co-workers might have smelled cigarette smoke on him from his break earlier in the morning. Panagabko said he woke up feeling sick on Dec. 17, but went to work anyway because of the Christmas event that needed to be set up. He said he had been checking the fan in the boiler room because it had been malfunction- ing and there was nothing on the desk, nor did he smell anything. e co-workers didn't mention anything to him about a smell, either. Panagabko said he started feeling worse, so he called the supervisor and went home. He also mentioned one of the co-workers might have wanted to get back at him be- cause of a few incidents, but it was mostly "petty stuff " and they usually got along. e superintendent suggested Panagabko take a drug test to disprove the allegations, but Panagabko said he only would if he en- tire maintenance crew underwent testing. e supervisor said he had no right to re- quire such a test, so Panagabko refused, say- ing he couldn't afford it and he was worried the effects of second-hand smoke would af- fect the test results. e union reviewed with Panagabko the possibility of being accommodated, but Panagabko denied having an addiction. e superintendent interviewed the two co-workers to clear up a few inconsisten- cies in the supervisor's report and their story was consistent. With no reason to believe they were fabricating anything, the superintendent felt the evidence pointed to Panagabko having smoked marijuana in the school. Given the school district's code of conduct, it was decided to terminate Pan- agabko's employment. Evidence was circumstantial but hard to dispute e arbitrator found the school district's case for dismissal was based on circum- stantial evidence with no direct proof Pan- agabko was in possession of or smoked marijuana on school property. However, the circumstances pointed to the allega- tions being true and "any other conclusion is improbable," said the arbitrator. e arbitrator found the two co-workers were credible witnesses with consistent stories. ey had no reason to fabricate the story, and they even hesitated to report the situation as they didn't want to get Pan- agabko in trouble. e incident Panagabko mentioned with the one co-worker was not an indication of a history of ill will between them and there were no other indications of problems with either co-worker. Panagabko was the only person in the boiler room when the smell of marijuana was in the room and the roaches were on the desk, and he was the only per- son who had been in the room when the co-workers returned to find the roaches removed. In addition, his conduct was un- usual and he appeared to be high, and his simple denial that any of it happened was "obviously of a self-serving nature," said the arbitrator. e arbitrator noted Panagabko had an opportunity to establish his innocence through a drug test, but he refused. His ex- planation about being exposed to second- hand smoke "does not ring true." e arbitrator found there was just cause for discipline in the circumstances. Because Panagabko worked in close proximity to children and on school equipment, his misconduct created a risk. In addition, he was aware of the code of conduct and the consequences of breach- ing it. e arbitrator determined dismissal was an appropriate response to the miscon- duct. For more information see: • Flin Flon School Division and USW, Local 7975 (Panagabko), Re, 2014 CarswellMan 761 (Man. Arb.). employment law blog Canadian employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as sexual abuse investigations, employees moonlighting, workplace gossip, and progressive discipline. You can view the blog at www.employmentlawtoday.com. « from MariJuaNa on page 1

• Cover