Canadian HR Reporter

CANADIAN HR REPORTER September 19, 2016 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Employees who traded marijuana plants at automotive facility given second chance An arbitrator has reinstated two Ontario workers who were fired for trading mari- juana at their workplace. e workers – both in their 50s – were employed at THK Rhythm Automotive Canada, a manufac- turer of automotive components for several major car companies with a production facility in St. Catharines, Ont. e workers were subject to THK's code of conduct, which stated "employees reporting 'un- fit' for work, possession and/or consumption of alcoholic bev- erages or illegal substances (i.e. drugs) on company property or during scheduled working hours and break periods" would likely be terminated from employment due to the seriousness of their actions. THK's collective agreement also had a provision stipulating that reporting for work under the influence of alcohol or using alcohol at work would not be tol- erated, and required employees to avoid conduct that was not acting in "good citizenship." On April 15, 2016, the two workers were working the after- noon shift at the production fa- cility. Shortly before 9 p.m., they were seen leaving the building and going to the parking lot. e workers went to a vehicle owned by one of them, and one re- moved a shopping bag containing two marijuana plants. He gave the bag to the other worker and both of them returned to the build- ing, with one worker carrying the shopping bag. Once inside, the workers split up and the one carrying the shop- ping bag proceeded to an area of the facility that wasn't in use at the time and hid the bag. A supervisor observed the lat- ter worker's trip to the unused section of the facility and, when the worker returned to his work station, the supervisor went into the empty section of the facility and found the bag with the mari- juana plants inside. e worker who had carried the marijuana plants inside was immediately suspended pending investigation. THK management observed the security tapes on April 18 and interviewed both workers. Nei- ther could explain themselves suf- ficiently to satisfy management — though they both acknowledged their wrongdoing — so on April 20, both workers were terminated from their employment at THK for violating the employee code of conduct. In addition, THK was of the po- sition that the possession or use of any mind-altering substance — with the exception of prescrip- tion drugs — by employees was an "extreme safety hazard to all em- ployees" because of the presence of heavy equipment, presses, ro- botics and tow motors in the facil- ity. It was a dangerous workplace that required strictly enforced restrictions on such substances, according to THK. e union grieved the dismiss- al. It acknowledged that the work- ers were guilty of misconduct that failed the collective agreement's "test of good citizenship," but ar- gued dismissal was too harsh. The union pointed out that both workers had more than 20 years of good service with THK and neither had prior discipline on his record due to a sunset clause in the collective agreement. It argued that the federal govern- ment's stated intention to legalize marijuana created a limbo for the drug and there was confusion as to its status as an illegal drug. In addition, the marijuana plants were young and not yet "consum- able" and it was a "simple transfer without consequence to the em- ployer or to anyone else." e arbitrator noted that THK's rule prohibiting employees from reporting to work in an unfit condition and its severe conse- quences was reasonable, given the hazards in the workplace. e arbitrator also dismissed the union's argument regarding legal- ization, since it hasn't happened yet and there is no confusion that marijuana remains an illegal drug until a new law is passed. Either way, marijuana is still a mind-altering substance and its legal status didn't change the fact it was dangerous to have in such a dangerous workplace, said the arbitrator. In addition, the distinction between consumable and non- consumable plants was irrelevant and it was reasonable for any em- ployer to ban all forms of illegal or unwelcome drugs, said the arbitrator. "An employee who violates a health and safety rule takes the risk that something unanticipated may occur, and cannot later be ex- cused on the basis that he did not expect a result which was foresee- able," said the arbitrator. However, the two workers didn't intend to consume the marijuana at the workplace. It was questionable whether their actions had no consequences to others at work, as not everything can be foreseen, but the arbitrator determined the workers deserved one more chance. THK was ordered to reinstate the workers without compensa- tion for the two months missed since their termination, with that time serving as a suspension. e arbitrator also implemented a last-chance agreement stipulating that if either worker violated any rule regarding the possession of mind-altering substances at work within a 24-month period follow- ing reinstatement, they would be automatically terminated. See THK Rhythm Automotive Canada Ltd. and TPEA (Rodwell), Re, 2016 CarswellOnt 9433 (Ont. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com.

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