Canadian Labour Reporter

report. The manager detected the odour of marijuana coming from the worker. He knew what mari- juana smelled like, and he was sure there was no such smell in the sky- box before the worker entered. The manager also noticed that the worker, who was normally quiet, was talkative. After some discussion with a second manager, the front-line manager returned to the skybox and a third manager came in. The third manager asked what the smell was, and the first manager said it was marijuana. The third manager also checked out the employee change room and noticed a strong smell of mari- juana there as well. The second manager went to talk to the worker and also noticed the marijuana odour on him. The managers went to the op- erations manager for direction on what to do, and it was decided to send the worker home for the rest of the day with pay as a safety precaution while they contacted Labatt's HR department at head office for directions. At this point, the union, Unifor, was notified of this action. The operations manager went to the skybox about one hour later and didn't smell marijuana there. However, he passed by the change room and detected it there. The worker was brought back to the skybox and informed he was being sent home as several people had smelled marijuana on him. The worker denied smoking mari- juana and said the smell could be from garbage he had been clean- ing or the lozenges he had in his mouth. However, the garbage con- sisted of mostly broken bottles and there was nothing in the plant that smelled like marijuana. The loz- enges also didn't smell like mari- juana, and the union steward at the meeting noted that the lozenges smelled like "Vicks VapoRub." The union steward asked the managers if there would be any discipline afterwards and was told there wouldn't be any. An investigation meeting was held on March 30. The managers asked the worker when he had last smoked drugs and the worker said that was irrelevant and he again denied smoking them before or at work. He again said the smell may have been from the garbage, though he later admitted the gar- bage didn't smell like marijuana. Though he hadn't been asked to take a drug test on the day of the incident, he was asked to take one at the followup meeting, which he declined to do. Following the meeting, the company suspended the worker for three days for smoking mari- juana, based on the fact that three managers smelled it on his clothes, his breath, and in the skybox after he entered. Unifor grieved the suspension, saying it was unjust and excessive discipline. Unifor argued that the worker didn't violate any policy and there was no definitive proof he had used marijuana at work. Unifor also said the union steward was initially told by the managers there would be no discipline. Arbitrator Yvon Seveny first noted that it didn't matter if the line managers told the union steward there would be no disci- pline for the incident as they didn't know at that time what would happen — they had yet to consult the HR department — and had no authority to make such a guaran- tee, as the decision was to be made at the head office. There was no double jeopardy as the worker was sent home with pay and for safety reasons. It wasn't disciplinary. Seveny found the accounts of all the managers to be credible, as they had no reason to make it up and they all agreed that they smelled marijuana on the worker. In addition, the worker's refusal to answer the question of whether he had smoked marijuana at the investigation meeting was effec- tively refusing to co-operate with the investigation and provide an explanation as to why all the managers suspected he had been smoking it at work, said Seveny. Seveny also found the fact that a strong smell of marijuana was de- tected by more than one manager in the changeroom made it likely that it was the place where the worker smoked it. There was no evidence anyone else in the plant was detected that day smelling of marijuana. "If the only circumstantial evi- dence was that the employer's wit- nesses smelled marijuana in the changeroom area, this would not in itself have been sufficient to es- tablish that the (worker) had been smoking marijuana at work," said Seveny. "However, the evidence about the changeroom is confirmatory that there was marijuana being smoked in the workplace that morning and this is in addition to the evidence that the (worker) smelled of marijuana and that he carried that smell into the skybox." Seveny determined that Labatt had set out a prima facie case of marijuana use by the worker at work and the worker's only ex- planation was that it could have been the garbage or his lozenges — which were already determined to not smell like marijuana. With- out a sufficient explanation to the contrary, Labatt had reason to be- lieve the worker had been smoking marijuana at work and grounds to suspend him. The grievance was dismissed. 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Marijuana pg. 1 Labatt set out prima facie case of marijuana use: Arbitrator Photo: Pe3k (Shutterstock) The employee's refusal to answer the question at the meeting about whether he had smoked marijuana was effectively refusing to co-operate with the investigation, said the arbitrator.

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