Canadian Employment Law Today

6 | January 20, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends e company operated with safety as its "number one core value." It was topmost pri- ority and Entrec believed it should come be- fore production. is priority on safety was part of Entrec's identity and its clients had high expectations, particularly because of the danger inherent to the oil and gas indus- try. Entrec had to submit its safety statistics to potential clients before bidding on jobs. Mielke's position as a truck driver re- quired particular attention to safety, as he often delivered to military bases with strict guidelines and hauled materials with high temperatures or pressure. e position was considered safety sensitive and high risk. As part of its attention to safety, Entrec had a drug and alcohol policy tied to "the Canadian model." Employees were trained in the policy as part of their orientation and Entrec kept them informed of it through newsletters and safety meetings. Mielke signed off on the policy, as all employees were required to do. e policy stipulated that drug and alco- hol testing was required for pre-employment screening and where there was reasonable cause, such as after a workplace incident. In particular, the policy required supervi- sors to order an employee "who is involved in an incident, near miss or other potentially dangerous occurrence to take an alcohol and drug test" if there was reasonable grounds or if there was no credible explanation of the incident. e policy also stated that employ- ees and contractors had the right to refuse to be tested, but doing so was a violation of the policy and would be "grounds for disciplin- ary action, up to and including dismissal." Company offered assistance to workers who tested positive It was common practice for Entrec that if an employee tested positive, the company would refer her to a substance abuse pro- fessional and, if the employee was addicted, the employee could enter a rehabilitation program. If the employee refused the pro- gram she would be terminated, but other- wise Entrec didn't dismiss employees who tested positive. In December 2014 and January 2015, En- trec experienced more incidents than ever before. As a result, it called an emergency safety meeting with all employees, including Mielke, where it told the employees all inci- dents would be subject to drug and alcohol testing. Mielke was called out for rolling his eyes and not taking the meeting seriously, but he signed off on the meeting with the other employees. On Jan. 27, 2015, Mielke was loading a large rock truck for delivery to a customer and drove it up the ramp of the trailer. When the truck was part of the way onto the trailer, part of it slid off. ere was minor damage to the truck's wheel rim, but no-one was in- jured. e customer later called Entrec to complain about the damage. After the dispatcher spoke to the custom- er, he called Mielke to find out what had hap- pened. Mielke said the rock truck had spun out to the side of the trailer and, when the dispatcher said he should have used ramps or gravel, Mielke said "ere are no ramps in the bush." It was raining and snowing that day and Mielke had asked dispatch to call off the job. However, dispatch told him he should go ahead. Mielke had refused to perform work he considered unsafe in the past and was aware of his right to do so, but he proceeded. e executive vice-president of opera- tions learned of the incident and felt Mielke should have used a different ramp for slip- pery conditions or used sand on the trailer. After the vice-president conferred with the branch manager and safety manager, it was decided Mielke should undergo post-inci- dent drug and alcohol testing. Two of Miel- ke's co-worker's had recently tested positive, undergone successful rehabilitation pro- grams and were back at work, so they felt there was no reason not to test Mielke. Worker refused to take test Mielke didn't want to take a test, as it would mean he would be subject to random testing for a year under the policy. He went out to lunch with his wife, who convinced him not to lose his job, and returned to say he would agree to be tested. However, the branch manager told him it was too late and "too bad to throw in the towel, you are a good hand." He told Mielke to go home and come back the next day. e next day Mielke's employment was terminated, which the branch manager was reluctant to do because Mielke was consid- ered a "key hand," but he felt he had to follow the policy. e adjudicator found Mielke was aware of Entrec's policies through meetings and newsletters and signed off on them, so when he refused to take a drug and alcohol test he knew what the consequences would be. He was also aware he could refused to do the job if he felt the weather conditions made things too dangerous, but he didn't. Either way, there was an incident requiring a drug and alcohol test under Entrec's policy. "Regardless of the nature of the incident with the rock truck on Jan. 27, 2015, it was an incident nonetheless," said the adjudica- tor. "(Management) all agreed that Dallas Mielke should be tested. is in my view was a reasonable and prudent decision to make, especially in light of the rising number of incidents Entrec was having, and in view of what was said at the stand down meeting." e adjudicator also found that it didn't matter that Mielke was persuaded by his wife to change his mind and later said he was will- ing to be tested. He refused to be tested after the incident and Entrec relied on that refusal under the policy to terminate his employ- ment, said the adjudicator. Mielke gave no reasons for refusing the test and there was nothing to justify the re- fusal as his job would not be in jeopardy if he complied, said the adjudicator in upholding the dismissal. For more information see: • Mielke and Entrec Corp., Re, 2015 Car- swellNat 6411 (Can. Labour Code Adj.). Positive drug test wouldn't threaten employee's job « from WORKER on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, preventing workplace bullying and violence, social media in the workplace, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Two co-workers had recently testive positive, undergone successful rehabilitation and were back at work

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