Canadian Safety Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2016 for a variety of performance- related issues, including the con- sumption of alcohol at work. As in Walker, a written policy existed that prohibited each of the activi- ties for which he was fired. The policy specifically mentioned that termination for cause could occur for major offences — in- cluding substance abuse on com- pany premises. The manual went on to state, however: "The intent should be to correct a problem rather than punish an employee." It also provided a detailed de- scription of the levels of the pro- gressive disciplinary process that were to be imposed before a ter- mination for cause could occur. Stone did not work in a safety- sensitive position and, although it was clear he had consumed alco- hol at work on several occasions — thereby breaching the prohibi- tion on substance abuse at work — he had never been warned and the disciplinary process hadn't been implemented. The court found in favour of Stone on all issues based pri- marily on the employer's failure to warn Stone, let alone to for- mally implement the progres- sive discipline process. The outcome might have been dif- ferent, and more in line with Walker, had Stone been work- ing in a safety-sensitive work- place or industry. Unionized environments In the unionized environment, the decision in Mielke and En- trec Corp. is of significant inter- est. Dallas Mielke was a hauler of heavy loads, a safety sensitive position. Entrec's written policy stated that for any near mishap or other potentially dangerous oc- currence, if reasonable grounds existed or there was a failure to provide a credible explanation, a supervisor was required to order a drug or alcohol test. The con- sistent practice of Entrec was not to terminate for a positive test but to assign the employee to a substance abuse professional and enroll the employee in a re- habilitation program if it was de- termined the employee was ad- dicted. Failure of the employee to comply with the policy was grounds for termination. Mielke had been involved in some minor accidents in the past, but nothing major. The incident at issue involved his truck slipping off a ramp in bad weather condi- tions. Mielke could have invoked concerns about the weather and refused to drive up the ramp but did not. The supervisor was not satisfied with Mielke's explana- tion for his failure to invoke his right to refuse. He was also pur- posely vague and sarcastic as to the actual cause of the accident. As a result, Mielke was asked to take the drug and alcohol test. He initially refused, indicating that he didn't want to be subject- ed to random tests for the com- ing year, which was one of the implications of taking the test. He later reconsidered, but was terminated for cause anyway. The adjudicator decided that the termination should be upheld, as Mielke was fully aware of the policy and the consequences of his refusal to take the test, and company practice indicated that his job would not have been in jeopardy. It's clear that the adjudicator relied upon the fact that oth- ers, including Mielke's friends, had tested positive and had not been terminated. Based upon past practice, his job was not in jeopardy. Another significant factor was the safety sensitive nature of the work in which he was involved. Employer options The saying "being forewarned is being forearmed" should be the rallying cry for employers. The examples above represent the tip of the iceberg, but they also pro- vide insight as to the tendencies of courts and tribunals on these issues which will arise in the workplace when the Criminal Code is amended. Even though recreational use is still illegal, it is exceedingly dif- ficult to terminate a marijuana user for cause. So what is an em- ployer going to do when mari- juana use doesn't even have the stigma of criminality? Anticipation. Employers need to review their workplaces and identify situations or areas where impairment would be either problematic or dangerous. The legal regime currently provides protections to employees even in workplaces that are highly safety sensitive. This includes industries involving transportation or em- ploying heavy machinery, haz- ardous materials or chemicals. There are cases which sup- port the proposition that in the workplace, random drug or al- cohol testing is not allowed in non-hazardous environments even where actual impairment exists. Termination for cause in these instances appears to re- quire progressive discipline. In hazardous environments, unless an employer can establish that the job site is safety sensitive and there is at least a general issue of drug use and impairment at work, the imposition of random testing and summary termina- tion is problematic. Tests which provide evidence of drug usage, but don't establish actual impair- ment, often don't support ter- mination for cause. Employers need to be aware of these issues and undertake the appropriate reviews with the appropriate professionals. Preparation. In view of the limitations imposed on employ- ers, even where safety is an issue, policies and procedures must be created or enhanced to deal with the issue of dope-induced impairment. Behaviours that will not be tolerated need to be listed. Clear disciplinary proce- dures need to be identified. By doing so, in the absence of situ- ations where cause might exist, an employer may take preventa- tive and remedial action, such as suspension or progressive dis- cipline. Even in safety sensitive workplaces, employers should begin the work to create or strengthen infrastructures that will respond to these concerns. Most decisions have been in the unionized environment. They in- dicate that the more forgiving and supportive a drug policy is, the more likely it is that discipline and intrusive testing will be accepted. For instance, zero tolerance poli- cies have been dealt with more harshly by arbitrators than those which offer other options before discipline is imposed. Education. All staff must be kept advised of the development or modification of any policy and they should be aware of its con- tents. This can be done by means of general meeting or informa- tion bulletins on internal web- sites. Employers must keep on top of the inevitable legal chang- es which will occur as the legal landscape evolves. The failure to do so will be costly, particularly if a policy or procedure is inad- equate or wrong. Huge penalties or damage awards could prove catastrophic, not to mention the negative impact on a company's reputation. Where fair and clearly worded policies exist, the courts and tribunals tend to be more disposed to render favour- able decisions. The road ahead will be bumpy and filled with potholes. If com- panies carefully develop a road- map, there will be fewer blind alleys and detours on the journey for employers and human re- source professionals to negotiate. For more information see: • Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.). • Walker v. Imperial Oil Ltd., 1998 CarswellAlta 859 (Alta.Q.B.). • Entrop v. Imperial Oil Limited 2000 CarswellOnt 2525 (Ont. C.A.). • Stone v. SDS Kerr Beavers Dental 2006 CarswellOnt 3831 (Ont. S.C.J.). • Mielke and Entrec Corp. 2015 CarswellNat 6411 (Can. Lab. Code Adj.). Shelley Brown is an employ- ment Lawyer with Steinberg, Title, Hope and Israel LLP in Toronto. He can be reached at sbrown@sthilaw.com or (416) 225-2777. Weed< pg. 3 Level of safety required in workplace a factor News | November 2016 | CSR e legal regime currently provides protections to employees even in safety sensitive workplaces.

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