Canadian Employment Law Today

Intent just as important as possession Oil rig worker's possession of marijuana not a violation of drug policy since he forgot it was in his pocket BY JEFFREY R. SMITH AN OIL rig worker did not violate his employer's drug and alcohol policy on drug possession because he forgot there was marijuana in his jeans and didn't knowingly bring it to work, the Newfoundland and Labrador Supreme Court has ruled. Michael Noseworthy worked for Magna Services Limited, an oil well equipment and supplies company based in St. John's, N.L. He worked on an on-call basis and his job involved travelling to offshore installations upon which Magna provided its products and services. Because the working environment on off- shore oil rigs was hazardous, Magna — like other companies in the industry — prohib- its illegal drugs or alcohol in offshore loca- tions. It has a zero-tolerance drug and alco- hol policy that states "the use, possession, or distribution of an illegal drug, or drug para- phernalia by an employee while on company facility or while performing company busi- ness is strictly prohibited." is included "any detectable amount" of drugs. e policy also stated that Magna Services would "invoke immediate disciplinary ac- tion leading up to and including dismissal" if any employee was found to have violated the policy. Worker didn't make it through security Noseworthy was called into work at an off- shore oil rig on Jan. 27, 2014. He went to a helicopter facility, where he was to be flown to the oil rig. However, when he passed through the security scanner, a small piece of aluminum foil was detected in a pocket in his jeans. e 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. He instead tossed it into the garbage himself, but the security officer retrieved it. e of- ficer 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. e police declined to press charges of possession because it was such a small amount of marijuana. Noseworthy was required to provide a urine sample, which initially tested negative but a second test found a small amount of the drug in his system. Magna Services then directed Nosewor- thy to undergo a dependency assessment, which found no medical dependency issues two weeks later. e company investigated the circum- stances and determined that Noseworthy was in possession 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 offshore oil rig. In addition, it felt he tried to get rid of it in the garbage when it was discovered. is was a violation of the drug and alcohol policy, so the com- pany terminated Noseworthy's employment on March 26, 2014. e union grieved Noseworthy's termina- tion, as Noseworthy 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 marijua- na got into his pocket, but thought it might have been from a hunting expedition a short time earlier and he had just forgotten to take it out of his pocket. An arbitrator found that Noseworthy probably was aware that he had the mari- juana in the past as he didn't seem surprised it was there, and it was likely he had sim- ply forgotten it was in his pocket. So while he didn't knowingly bring the marijuana to work, he was still "in possession" of it, which was a violation of the policy. e grievance was upheld. e union appealed to the Newfoundland and Labrador Supreme Court. Intent is important e court agreed that Noseworthy was in possession of marijuana while on company business. However, it found the mental ele- ment to establish possession in contraven- tion of Magna Services' policy was missing. e court — as did the arbitrator previ- ously — accepted Noseworthy'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 Noseworthy's previous ac- tions violated the policy. ough Nosewor- thy had actual physical possession of mari- juana while engaged in company business, he didn't know he had physical possession until he was scanned. erefore, the intent wasn't there, said the court. e court determined that the arbitra- tor's — and Magna Services' — decision that Noseworthy violated the drug and alcohol policy despite not being aware he had a small amount of marijuana on him was unreason- able. While the arbitrator was free to accept or reject Noseworthy's claim that he knew he had marijuana 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. e court noted that had it been deter- mined Noseworthy did knowingly violate Magna Services' drug and alcohol policy, dis- missal would have been a reasonable amount of discipline. Even though dismissal wasn't mandatory, the company had a "strong duty" to employees and others on the facility to re- duce the risk of dangerous substances. Dis- missal was an effective way to deter others from violating the policy, said the court. For more information see: • Terra Nova Employers' Organization v. CEP, (Unifor, Local 2121), 2016 CarswellN- fld 491 (N.L. T.D.). Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 Cases and Trends WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as compliance under the Ontario's sexual violence and harassment plan act, managing hidden disabilities, harassment investigations, and HR and payroll implications of employee terminations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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