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 CPr worker slides into drug test THIs InsTALMenT of You Make the Call involves an employee who was suspended following an accident in a company vehicle. Andrew Jones was a signal and communi- cation maintainer for Canadian Pacifi c Rail- way (CPR) in Lloydminster, Sask., responsi- ble for installing, repairing and maintaining signal and communications equipment for the railway. On March 6, 2013, Jones was driving a CPR vehicle performing regulato- ry maintenance. e road was icy, so he was travelling between 10 and 20 km per hour in a 40 km per hour zone. Suddenly, a vehicle two ahead of his truck slammed on the brakes at a railway cross- ing. e car directly ahead of Jones also slammed on its brakes, causing Jones to brake as well. However, Jones' truck was on an icy section of the road and it slid into the rear of the vehicle ahead of him. ere was minor damage on both vehicles, so Jones ex- changed information with the other driver and they both left. Jones reported the accident to his super- visor, who told him to continue working until the supervisor got back to him. e su- pervisor consulted the divisional engineer and, a few hours later, called Jones back to tell him he would be required to submit to post-accident substance testing. Jones was unfamiliar with the protocol, so the super- visor told him to once again keep working while he found out the details. e CPR policy on post-accident test- ing stated that "alcohol and drug testing may be required after a signifi cant work- related incident or accident as part of a full investigation into the circumstances." It also stipulated that the supervisor investigating the accident would make the decision after consulting with an experienced operating offi cer, superintendent or higher position to refer the employee for testing, and the test- ing must be done as soon as possible. e defi nition of a signifi cant work-related acci- dent included that which caused "signifi cant loss or damage to company public or private property, equipment or vehicles." e policy indicated a test wouldn't be justifi ed "where there is evidence that the act or omission of the individual could not have been a contributing factor to the inci- dent/accident, eg. structural, environmen- tal or mechanical failure, or the individual clearly did not contribute to the situation." In addition, only employees in a "safety criti- cal or safety sensitive position" who were di- rectly involved were subject to testing. e supervisor called Jones back and told him to drive himself to a tool house where he would meet another supervisor, who took Jones to the test after making a report to the insurance company. Following the testing, Jones was held out of service pending the results, a procedure outlined in the testing policy. Jones was interviewed, and he said he had thought the distance between him and the vehicle in front of him was suffi cient to stop, but also admitted he might have been too close. Jones also said he had told his supervisor before the accident about poor treads on the truck's tires — an issue he had raised at a safety meeting. e supervisor had tried to get the tires changed but it wasn't approved because there wasn't enough mileage on them. CPR decided Jones would be suspended March 20, making the length of the suspen- sion two weeks. e next day, the test came back negative but the suspension continued as CPR felt a driver who rear-ends another vehicle is normally at fault due to a failure to follow a safe distance, especially in icy con- ditions. e union grieved the suspension, arguing it was "unwarranted, arbitrary and discriminatory." you Make The caLL Was the two-week suspension and substance testing unfair? OR Was the suspension appropriate discipline for the accident? IF YOu sAID the suspension and test- ing was unfair, you're right. e arbitrator found CPR did not follow its substance test- ing policy because the accident shouldn't have been considered signifi cant and there were other factors to consider. e arbitrator found the damage to the CPR vehicle and the other vehicle was mi- nor and there were no injuries. In addition, the conditions were slippery and the truck's tires were not in good shape, factors that were not Jones' fault. e arbitrator also found the supervisor did not have enough information to order a test, having not seen the truck or Jones in person. " e record in this case discloses that the decision to request substance testing was based only on (Jones') telephone call reporting to the supervisor the minor vehicle accident," said the arbitrator. " is was a completely inadequate basis for or- dering (Jones) to attend for post-accident testing, when the company was aware of the icy road conditions as they existed at the time of the accident, and the concerns (Jones) had raised about the condition of the tires." e arbitrator also noted Jones was allowed to continue working while the supervisor followed up on the testing procedure, and he was allowed to drive himself to the location where he met the supervisor overseeing the testing. is was inconsistent with concerns of possible im- pairment. e arbitrator found Jones wasn't at fault for the accident, the testing was unneces- sary and the two-week suspension was excessive. CPR was ordered to remove the suspension from Jones' record and com- pensate him for lost wages and benefi ts, placing a caution in his record instead. See Canadian Pacifi c Railway and IBEW Sys- tem Council No. 11 (Jones), Re, 2014 Car- swellNat 5826 (Can. Arb.).

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