PM40065782
Emplo
y
ment Law Today
Canad ad a ian
www.employmentlawtoday.com
September 27, 2017
Falsifi ed post-incident drug test
worse than having marijuana at work
Marijuana in worker's system not evidence of impairment, but worker's
dishonesty in trying to falsify test results just cause for dismissal
BY JEFFREY R. SMITH
AN ALBERTA company had just cause to
dismiss a worker who failed a drug test not
because she had marijuana with her on the
job but instead because she tried to falsify
her test results, an adjudicator has ruled.
Dawn Gilbert was a pilot truck driver for D
& D Energy Services, an oilfi eld transporta-
tion company based in Grande Prairie, Alta.
Hired in 2009, Gilbert hauled heavy oilfi eld
equipment to various oilfi eld sites.
D & D had a drug and alcohol policy that
stated an employee who tests positive for
drugs or alcohol would be placed on "in-
defi nite leave, pending a thorough physical
and psychological examination." It also said
termination could be avoided with "proper
medical attention and rehabilitation." In ad-
dition, it stipulated that possessing, consum-
ing, and using illegal drugs in any company
vehicle while on duty was a violation of the
policy. Gilbert signed a letter acknowledging
she read and understood the policy in 2013.
Gilbert had a disciplinary record that in-
cluded a written warning for speeding in
September 2011, an accident in January
2012 when her truck slid into a ditch and hit
a tree, and a July 2012 incident in which she
damaged a truck bumper when she backed
into a cement barrier in parking lot.
Termination a mutual agreement, not
reprisal for harassment complaints
Worker had altercations with 2 diff erent supervisors in short time
with company; complained of harassment and agreed to payout
BY JEFFREY R. SMITH
A WORKER'S brief tenure with an Ontario
company came to an end due to a mutual
agreement to terminate the employment re-
lationship and wasn't a reprisal to the work-
er's harassment complaints, the Ontario
Labour Relations Board has ruled.
Neil Smith began employment with FIO
Automotive, a manufacturer of welded auto-
motive parts for Toyota plants in Stratford,
Ont., on Jan. 16, 2017. Smith's employment
was under a one-year fi xed-term employ-
ment contract expiring on Jan. 16, 2018. As
part of the contract, Smith agreed to provide
assistance to support production activities
whenever needed and abide by a daily excess
hours agreement. e excess hours agree-
ment allowed FIO to assign Smith overtime
beyond his normal 40 hours per week.
e employment contract also contained
CREDIT:
BACHO/SHUTTERSTOCK
When mitigation isn't mitigation
pg. 3
Ontario Court of Appeal stirs
controversy by not including
income during notice period
Sorting out the gig economy pg. 4
Employment standards must adapt to
new types of employment from
companies such as Uber and Airbnb
with Brian Johnston
WORKER on page 8 »
WORKER SEEN
on page 11 »
ASK AN EXPERT pg. 2
Is not caring
cause for dismissal?
