Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS the policy, including after an acci- dent or incident." The decision on whether test- ing was warranted, was supposed to be made by a managerial or su- pervisory employee. The policy stated that violation would "result in corrective action up to and including dismissal. Refusal to complete the testing process set out under this policy is considered a policy violation." In January 2015, M.B. refused to take a test following a train acci- dent on the grounds that he wasn't controlling the movement of the train. CN terminated his employ- ment for violating the drug and alcohol policy, but the union ne- gotiated a return to employment in July. As a condition of his reinstate- ment, M.B. signed a continuing- employment contract, which subjected him to frequent per- formance observations by his su- pervisor, required him to abstain from illicit drugs at all times, and subjected him to unannounced drug testing from time to time. The agreement stated that if M.B. didn't fully comply with the policy, he would be discharged from employment and wouldn't be eligible for reinstatement. On Dec. 17, 2015, CN required M.B. to take a drug test. Two days later, the results came in and the worker tested positive for a low amount of marijuana. M.B. explained that he had re- ceived three dozen cookies from his wife in Jamaica for his birth- day and had eaten several. He said if there was any mari- juana in his system, it would be from the cookies. He denied tak- ing any medical marijuana or similar medications. CN held an investigation meet- ing on Jan. 1, 2016. M.B. confirmed his understanding of the continu- ing employment contract and the consequences of violating it. However, he disagreed with the test results "because I hadn't taken any drugs." M.B. then submitted the re- sults of a second test he took on Dec. 23 that came back negative. M.B. told CN that his wife threw him a birthday party and one of the guests brought cookies containing marijuana. He said he ate some of the cookies before bed on Dec. 15, though he had no idea they contained the drug. He only realized what hap- pened after the positive test on Dec. 17. M.B. gave a written statement to CN from a friend who was at the birthday party who claimed to have brought the cookies for pri- vate consumption and M.B. inad- vertently ate some of them. The friend apologized to CN and M.B. in the statement for causing "damage to my friend's reputation and lifestyle." M.B. went on to say he was an- gry and upset by what had hap- pened and ingesting marijuana was "not my doing." He insisted he didn't use illicit drugs. However, CN terminated M.B.'s employment for violating the drug and alcohol policy, as well as breaching the continuing-em- ployment agreement. An arbitrator from the Cana- dian Railway Office of Arbitration and Dispute Resolution found that a refusal to take a test was a breach of policy because such a refusal raises suspicion. A work- er's claim he avoids drugs is some- what dampened by refusals to take tests, said the arbitrator. Regardless, CN's policy indicat- ed that a positive drug test would be considered a violation. M.B. knew this because he had been terminated for a refusal before and signed an agreement recog- nizing the penalty of another vio- lation when he was reinstated. He also confirmed this at the investi- gative meeting. The arbitrator also considered the likelihood of whether M.B. knowingly consumed marijuana, as the test established that he did consume it. M.B.'s credibility came into question as the story he initially provided when the positive test came back and the one he told at the investigative meeting were different. He initially said his wife sent him cookies from Jamaica, and later said a friend brought them — even providing a letter from the friend. This inconsistency didn't help M.B.'s cause, according to the ar- bitrator. The arbitrator determined that M.B. violated the continuing- employment agreement and CN's drug and alcohol policy. His long service with CN wasn't enough to mitigate his misconduct, so the grievance was dismissed. "The (worker) was reinstated before subject to strict conditions through the continuing employ- ment agreement. He has been shown not to have complied with these conditions," said the arbitra- tor. "This is a case where there is insufficient basis to alter the em- ployer's decision." For more information see: • Canadian National Railway and Teamsters Canada Rail Confer- ence (B. (M.)), Re, 2016 Carswell- Nat 6496 (Can. Railway Office of Arb. & Dispute Res.). < CN Rail pg. 1 Story of who provided marijuana cookies changed at hearing Photo: CreativeFireStock (Shutterstock) He initially said his wife sent him cookies from Jamaica, and later said a friend brought them.

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