Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 7 More Cases e worker who had carried the marijua- na plants inside was immediately suspended pending investigation. THK management observed the se- curity tapes on April 18 and interviewed both workers. Neither could explain them- selves sufficiently 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 posi- tion that the possession or use of any mind- altering substance — with the exception of prescription drugs — by employees was an "extreme safety hazard to all employees" be- cause of the presence of heavy equipment, presses, robotics and tow motors in the fa- cility. It was a dangerous workplace that re- quired strictly enforced restrictions on such substances, according to THK. e union grieved the dismissal. It ac- knowledged that the workers were guilty of misconduct that failed the collective agree- ment's "test of good citizenship," but argued dismissal was too harsh. e 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 collec- tive agreement. It argued that the federal government's stated intention to legalize marijuana created a limbo for the drug and there was confusion as to its status as an il- legal drug. In addition, the marijuana plants were young and not yet "consumable" and it was a "simple transfer without consequence to the employer or to anyone else." e arbitrator noted that THK's rule pro- hibiting employees from reporting to work in an unfit condition and its severe con- sequences was reasonable, given the haz- ards in the workplace. e arbitrator also dismissed the union's argument regarding legalization, since it hadn't happened yet and there was no confusion that marijuana remained an illegal drug until a new law is passed. Either way, marijuana was still a mind-altering substance and its legal status didn't change the fact it was dangerous in a hazardous workplace, said the arbitrator. In addition, the arbitrator found the dis- tinction between consumable and non- consumable plants was irrelevant and it was reasonable for any employer to ban all forms of illegal or unwelcome drugs. However, the arbitrator also found the two workers didn't intend to consume the mari- juana 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. "An employee who violates a health and safety rule takes the risk that something un- anticipated may occur, and cannot later be excused on the basis that he did not expect a result which was foreseeable," said the ar- bitrator. THK was ordered to reinstate the workers without compensation for the two months missed since their termination, with that time serving as a suspension. e arbitra- tor also implemented a last-chance agree- ment stipulating that if either worker vio- lated any rule regarding the possession of mind-altering substances at work within a 24-month period following reinstatement, they would be automatically terminated. See THK Rhythm Automotive Canada Ltd. and TPEA (Rodwell), Re, 2016 CarswellOnt 9433 (Ont. Arb.). « from EMPLOYEES on page 1 Intention was not to consume drug at work Fearful worker too sensitive about supervisor AN ONTARIO worker went overboard when he claimed his supervisor tried to in- timidate him in two incidents for which the supervisor apologized, the Ontario Griev- ance Settlement Board has ruled. Andes Lo worked for the Ontario Minis- try of Correctional Services and Community Safety for more than 22 years in the proba- tion and parole department. He had a good working relationship with his supervisor, who had been with the ministry for a similar amount of time. On Aug. 28, 2014, Lo was walking along a hallway when his supervisor entered the hallway from the opposite direction. When they approached each other, they stepped the same way so they couldn't pass. ey each stepped to the other side at the same time, and this continued a few more times. Finally, the supervisor took Lo's hand in both of his hands is if to shake it, then placed the other hand on Lo's elbow. He steered Lo around him and they both continued down the hallway in opposite directions without anything additional being said. Lo felt shocked by the incident, but didn't say anything for the rest of the day. He went on vacation the next day, but he couldn't stop thinking about the encounter in the hallway. He felt they had a good working relation- ship, but he also believed the supervisor had touched him inappropriately, particularly since Lo had been seeing a physical therapist for a frozen shoulder. e supervisor was aware of his medical issue. When Lo returned from his vacation, he tried to work normally but the hallway inci- dent continued to bother him, even haunt- ing him. e more he thought about it, the more he considered it an insult from the su- pervisor. He soon started to become afraid of the supervisor. Lo filed a complaint under Ontario's Workplace Discrimination and Harassment Prevention Policy (WDHP). However, he was informed the complaint was outside the scope of the policy. Lo then went to the ministry's employee assistance program for counselling on how to deal with his emotions. On Nov. 13, 2014, Lo went on sick leave for six weeks. During his leave, he wrote a letter of complaint to his supervisor's supe- rior which led to a meeting on Dec. 23. Lo's supervisor was unsure about what had upset Lo, but he acknowledged Lo's feelings and apologized. ey shook hands and the meet- ing ended with the supervisor believing Lo had accepted his apology. Lo returned to work six days after the meet- ing without saying anything else on the matter until Feb. 17, 2015, when he filed a grievance. When the supervisor learned of the griev- ance two weeks later, he knocked on Lo's of- fice door and stepped inside after Lo opened it. He asked Lo about a matter related to pro- cedures and Lo asked him to put it in writ- ing. e supervisor stepped closer to Lo and Lo pushed his chair away from the desk to get farther away. Lo then told the supervisor he was afraid of him and the supervisor said, "at's on you, not me." Lo felt the supervisor was trying to in- timidate him and filed a second grievance, asking for a written apology from his super- visor for both incidents, three weeks' vaca- tion to compensate him for the trauma he experienced and the right to file another WDHP complaint in an effort to restore their previous working relationship. e board agreed that the supervisor placed his hands on Lo in the hallway incident but found there was no evidence it was in- tended as an assault or attempt to intimidate Lo. It also found the supervisor did not do anything untoward in Lo's office that should be construed as trying to intimidate him. See Ontario (Ministry of Community Safety and Correctional Services) and OP- SEU (Lo), Re, 2016 CarswellOnt 9435 (Ont. Grievance Settlement Bd.).

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