Canadian Employment Law Today

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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 @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. 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 Driver with marijuana leaves the bus THIS INSTALMENT of You Make the Call features a bus driver who was fi red for pos- sessing marijuana on board a company bus. Mark Richards, 57, was a motor coach driver for Great Canadian Coaches, a mo- tor coach company based in Kitchener, Ont. Richards was hired in the summer of 2010 and in October 2011, began an assignment in which he drove on a "line run" — a route for a client in which he picked up passen- gers between Hamilton and Brantford and drove them to the client's place of business. He also returned the passengers later, which usually required multiple runs to both cities over the course of a day. On Oct. 19, 2011, Richards fi nished a run to the client's business and, after the pas- sengers left the bus, he claimed he noticed a bag on the fl oor. He picked up the bag and smelled it, realizing there was marijuana inside. Richards testifi ed he put the bag in his pocket with the intention of disposing it along the side of the highway, the same way he disposed of alcohol he found on board. Richards testifi ed he didn't tell Great Ca- nadian about the marijuana because he was afraid of what might happen, such as los- ing his job. He fi gured it was easy to simply throw it away, particularly because it was a small amount and he claimed there were no trash cans available at the client's business. Great Canadian didn't have a procedure for employees who found drugs on a bus, but other drivers had contacted the company for instructions in similar situations. However, Richards seemed to have for- gotten the bag was in his pocket, as he didn't dispose of it. He went into the client's busi- ness to pass the time until his next run, and the bag fell out of his pocket. He didn't no- tice but when others saw it the police were called. Richards wasn't charged because the amount was of marijuana was very small. A little later, passengers were boarding the bus to go back to their point of origin and a manager of the client company told everyone to disembark from the bus. He told Richards to stay in the lobby to wait for someone from Great Canadian to ar- rive. Richards didn't know what was going on and, according to the manager, Richards followed him, asking questions. Richards denied this and testifi ed he remained in the lobby. e client also told Great Canadian it didn't want Richards driving its customers. Great Canadian's operations manager arrived with another bus driver and told Richards in a loud and angry voice, in the presence of the other driver, that Richards was fi red because of drugs. ey got off the bus and the other driver took over the run. Richards testifi ed he tried to "tell everyone" why he had marijuana but no-one would listen. e operations manager drove Richards home and there was no discussion in the car. When they arrived, the operations manager told Richards he would contact him later. However, there was no further contact and Richards' employment was terminated. e company had a zero-tolerance policy regarding illegal drugs in the workplace, particularly since drivers worked without direct supervision and were responsible for the safety of passengers. Richards was unable to pay his bills and lost his apartment without the income from his job. His employment insurance was de- layed because Great Canadian sent his re- cord of employment (ROE) to his previous address. Richards eventually was admitted to a psychiatric facility with post-traumatic stress disorder, though he had suff ered from depression before his dismissal. YOU MAKE THE CALL Did the employer have just cause for dismissal? OR Was Richards wrongfully dismissed? IF YOU SAID Richards was wrongfully dismissed, you're right. ough Great Ca- nadian had a zero-tolerance policy on drugs in the workplace, Richards wasn't asked for an explanation, the operations manager hu- miliated Richards in front of another driver, and he told Richards he would contact him but he didn't, said the adjudicator. e adjudicator found Richards' account lacked credibility as Richards didn't seem to feel any urgency to get rid of the marijuana and kept it in his pocket. It was diffi cult to believe there were no trash cans or other receptacles nearby and he was waiting to throw it away on the highway. In addition, Richards claimed to not know what was go- ing on but then said he tried to tell everyone what had happened. However, the adjudicator found that whether the marijuana was really Richards' or not, it was unlikely he intended to bring it to work, particularly since it was a small amount. Possession of marijuana while on duty in a safety sensitive position was grounds for discipline, but the adjudicator determined Great Canadian did not have just cause for dismissal. Even though the cli- ent didn't want Richards driving its passen- gers, Great Canadian had other runs Rich- ards could drive, said the adjudicator. Also, Great Canadian didn't provide its drivers with guidance on dealing with drugs and alcohol on a bus. e adjudicator found a suspension of two weeks to one month would have been appropriate. With Richards' relatively short term of employment, Great Canadian was ordered to pay him the minimum compen- sation provided for in the Canada Labour Code — two weeks' pay and fi ve days of sev- erance pay. e company was also ordered to pay $1,000 for its bad faith in the man- ner of dismissal, due to its lack of follow-up communication and failure to allow Rich- ards to give his side of the story. See Rich- ards and Great Canadian Coaches Inc., Re, 2014 CarswellNat 6433 (Can. Labour Code Adj.).

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