Canadian Labour Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS Uprichard suffered from chronic pain in his back, knees and hands. When prescribed pain medication caused stomach prob- lems and made him concerned he would become addicted, he decid- ed to start using marijuana. The drug provided Uprichard with re- lief from his pain symptoms with- out any side effects, so after using it illegally for six months, he went to see a doctor who prescribed it for him in December 2014. The doctor instructed Uprich- ard to take two grams of mari- juana per day and not to drive or use heavy machinery within four hours of using it. Otherwise, there would be no impairment of his ability to work, said the doctor. Uprichard ordered the mari- juana from a federally licensed dispensary in Ontario and pur- chased it online with his credit card. He told a friend about his medical marijuana prescription. The friend was a foreman for Va- lard and sometime later, he told Uprichard about a job opportuni- ty on the Lower Churchill Project. Uprichard applied for the job with Valard and the company re- quired him to undergo a physical examination and a drug and alco- hol test. Uprichard refrained from taking marijuana for a period of time before taking the test so it didn't show up in his system. Once he was hired, he also didn't dis- close that he was a user of medical marijuana, as he felt it would have kept Valard from continuing his employment. While Uprichard worked on the project, he brought his sup- ply of medical marijuana with him when he reported to the worksite for each 21-day rotation. He didn't bring it into the work camp but instead hid it in a ditch outside the gates. After his daily shift, he went outside the camp to smoke the amount prescribed by his doctor. He didn't smoke the marijuana at the worksite or dur- ing working hours. On Aug. 19, 2015, Valard man- agers on the worksite detected the smell of marijuana in a pickup truck used by Uprichard and oth- er employees. Several employees were interviewed and Uprich- ard admitted that he had smoked marijuana outside the camp the night before. He explained about his prescription for medical mari- juana and he was permitted to continue working while the com- pany investigated. Five days later, Valard revoked Uprichard's site access and termi- nated his employment for violat- ing various company policies by not disclosing his medical mari- juana use when he was hired, be- ing impaired by marijuana at work on Aug. 19, smoking marijuana at the worksite and possessing mari- juana in the camp. Uprichard's union, the Interna- tional Brotherhood of Electrical Workers, Local 1620 (IBEW), chal- lenged the dismissal, arguing Up- richard had "all of the appropriate medical and legal authorizations" for medical marijuana and he took care to not use it while working or on the worksite. The union also said the legal landscape for mari- juana use had changed and Valard's zero tolerance for it discriminated against users of medical marijuana such as Uprichard. The arbitrator upheld the ter- mination, finding Uprichard took deliberate steps to conceal his use of medical marijuana and his fail- ure to disclose it violated Valard's standard and the Canadian model for providing a safe workplace — both of which required reporting if there was any risk of impairment by alcohol or drugs. Though the arbitrator agreed that there was no evidence of im- pairment at work, Uprichard's vi- olation of the policy and standards raised "a generalized concern for safety with undetectable impacts from continued use" of the drug. IBEW appealed to the New- foundland and Labrador Supreme Court, claiming Valard discrimi- nated against Uprichard based on a disability. The court noted that a zero- tolerance policy must usually be rationally connected to the legiti- mate requirements of the work- place. Given Valard's safety con- cerns on its construction worksite, it was reasonable for the arbitra- tor to determine disclosure of the marijuana use was required and Uprichard breached that require- ment, said the court. The court found that because of Uprichard's breach of policy, the fact he deliberately concealed his medical marijuana use, and there were potential impacts of mari- juana use on the worksite, Valard had cause for discipline. However, the court also found that the arbitrator's main justifi- cation for termination was that Uprichard violated the estab- lished reporting standards and there should have been more con- sideration of the mitigating cir- cumstances. The court noted that Uprichard followed his doctor's advice with regards to the amount he took and when he took it, his work record had no problems, he worked safe- ly on the project, and Valard had no safety concerns since it allowed him to continue working for an- other five days before the com- pany terminated his employment. "In these circumstances, it was reasonable for the arbitrator to have done a further assessment of the appropriateness of the sanc- tion of termination, and to have considered whether a lesser pen- alty would have been appropri- ate," said the court. "It may be that if he had done so, he would have arrived at the same conclusion. However, in the absence of this type of assessment means that, in my view, the endorsement of the termination decision of the em- ployer was made without the ap- propriate justification." The court found that the arbi- trator's decision to uphold Up- richard's termination was not reasonable based on the factors considered. It remitted the case back to the original arbitrator for further con- sideration. For more information see: • IBEW, Local 1620 v. Lower Churchill Transmission Con- struction Employers' Assn. Inc., 2016 CarswellNfld 461 (N.L. T.D.). < Medical marijuana pg. 1 Arbitrator should have considered 'lesser penalty': Court Photo: Love Silhouette (Shutterstock)

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