Canadian Labour Reporter

April 3, 2017

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS products and services. Because the working environ- ment on offshore oil rigs was hazardous, Magna — like other companies in the industry — pro- hibited illegal drugs or alcohol in offshore locations. It had a zero- tolerance drug and alcohol policy that stated "the use, possession, or distribution of an illegal drug, or drug paraphernalia by an employ- ee while on company facility or while performing company busi- ness is strictly prohibited." This included "any detectable amount" of drugs. The policy also stated that Magna Services would "invoke immediate disciplinary action leading up to and including dis- missal" if any employee was found to have violated the policy. Didn't make it through security Noseworthy was called into work at an offshore oil rig on Jan. 27, 2014. He went to a helicopter fa- cility, where he would be flown to the oil rig. However, when he passed through the security scan- ner, a small piece of aluminum foil was detected in a pocket in his jeans. The piece was smaller than a pencil eraser and had a piece of lint attached to it. Noseworthy took the piece of foil out of his pocket and asked the security officer scanning him to dispose of it in the garbage. However, Noseworthy instead tossed it into the garbage himself, but the security officer retrieved it. The officer examined the piece of foil and found it contained a small quantity of marijuana. Noseworthy claimed he didn't know what was in the piece of foil, but security called the police. The police declined to press charges of possession because it was such a small amount of mari- juana. Noseworthy was required to provide a urine sample, which ini- tially tested negative but a second test found a small amount of the drug in his system. Magna Services then directed Noseworthy to undergo a depen- dency assessment, which found no medical dependency issues two weeks later. The company investigated the circumstances and determined that Noseworthy was in posses- sion of an illegal drug and when he arrived at the helicopter facility he was on company business and in the process of travelling to an off- shore oil rig. In addition, it felt Noseworthy tried to get rid of it in the garbage when it was discovered. This was a violation of the drug and alcohol policy, so the compa- ny terminated Noseworthy's em- ployment on March 26, 2014. The union — Communications, Energy and Paperworkers Union (Unifor) — grieved Noseworthy's termination, as he said he hadn't known there was marijuana in his pocket when he reported for work at the helicopter facility. He claimed he had no idea how the marijuana got into his pocket, but thought it might have been from a hunting expedition a short time earlier and he forgot to take it out of his pocket. An arbitrator found that Nose- worthy likely was aware that he had the marijuana in the past as he didn't seem surprised it was there, and it was likely he had simply for- gotten it was in his pocket. So while Noseworthy didn't knowingly bring the marijuana to work, he was still "in possession" of it, which was a violation of the company's policy. The grievance was denied, but Unifor appealed to the New- foundland and Labrador Supreme Court. Intent is important The court agreed that Nosewor- thy was in possession of marijua- na. However, it found the mental element to establish possession in contravention of Magna Services' policy was missing. The court — as did the arbitra- tor previously — accepted Nose- worthy's explanation that he likely had placed the marijuana in his jeans pocket some time earlier and then forgot it was there when he wore the jeans to work. However, unlike the arbitrator, the court didn't think his previous actions violated the policy. Though Noseworthy had ac- tual physical possession of mari- juana while engaged in company business, he didn't know he had physical possession until he was scanned. Therefore, the intent to bring marijuana onboard wasn't pres- ent. The court determined that the arbitrator's — and Magna Ser- vices' — decision that Nosewor- thy violated the drug and alcohol policy despite not being aware he had a small amount of marijuana on him was unreasonable. While the arbitrator was free to accept or reject Noseworthy's claim that he knew he had mari- juana in his pocket, the fact that he accepted it meant he should have found in favour of him, said the court in upholding the grievance. The court noted that had it been determined that if Nosewor- thy did knowingly violate Magna Services' drug and alcohol policy, dismissal would have been a rea- sonable amount of discipline. Even though dismissal wasn't mandatory, the company had a "strong duty" to employees and others on the facility to reduce the risk of dangerous substances. Dismissal was an effective way to deter others from violating the policy, said the court. For more information see: • Terra Nova Employers' Orga- nization v. CEP (Unifor, Local 2121), 2016 CarswellNfld 491 (N.L. T.D.). < Oil worker pg. 1 Unifor appealed arbitrator's decision to Supreme Court Photo: Trybex (Shutterstock)

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