Canadian HR Reporter

CANADIAN HR REPORTER October 16, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Get instant access to YOUR LEGAL COMMUNITY British Columbia's vast legal community is right at your fingertips with the British Columbia Legal Telephone Directory. You get instant access to over 10,500 lawyers and law offices. Each year we ensure this directory includes the most up-to-date names, phone numbers, mailing addresses and emails, so you don't have to search anywhere else. Get quick access to: • Courts • Judges and court officials • Law related services and organizations • Federal and provincial government departments • Boards and commissions • Notaries • Shorthand Reporters • Land surveyors • Paralegals Spiralbound • October 2017 $49* • L7798-7857 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation 2018 British Columbia Legal Telephone Directory Includes British Columbia, Northwest Territories, Nunavut and Yukon Falsified post-incident drug test worse than having marijuana at work Drugs in worker's system not evidence of impairment, but dishonesty worthy of dismissal An Alberta company had just cause to dis- miss a worker who failed a drug test, not because she had marijuana with her on the job, but because she tried to falsify her test results, an adjudicator has ruled. Dawn Gilbert was a pilot truck driver at D & D Energy Services, an oilfield transportation compa- ny based in Grande Prairie, Alta. Hired in 2009, Gilbert hauled heavy equipment to various sites. D & D had a drug and alcohol policy that stated an employee who tested positive for drugs or alcohol would be placed on "indefinite leave, pending a thorough physical and psychological examination." It also said termination could be avoided with "proper medical at- tention and rehabilitation." In addition, the company stipu- lated that possessing, consuming and using illegal drugs in any com- pany vehicle while on duty was a violation of the policy. Gilbert signed a letter acknowl- edging she read and understood the policy in 2013. She had a disciplinary record that included 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 bum- per when she backed into a ce- ment barrier in a parking lot. On Feb. 2, 2016, D & D was contracted to move a drilling rig from one site to another. Gilbert was assigned to do road patrol in her pilot truck on a gravel lease road between the two drilling sites, which were four kilometres apart. It was early in the morning and still dark, though the road had been grated and loose snow was removed. Gilbert went around a corner in the road and lost control of the truck, sliding off the road and rolling it into the ditch. Another pilot truck driver arrived on the scene and found the truck lying on the driver's side with airbags deployed. Gilbert was standing on the driver's door collecting items from inside the truck and putting them in a bag. She then crawled out of a window with the bag. The other pilot truck driver stepped out of her own truck to help and immediately smelled marijuana. Gilbert said she was uninjured and, according to the co-worker, was "walking and talk- ing fine." Another driver arrived to help and also smelled marijuana when he got out. He attached a chain to Gilbert's truck and pulled it up- right and out of the ditch with a winch on his truck. Neither of the other drivers mentioned the smell of marijuana. Gilbert was able to start the truck and drive it to a spot in the road where she could pull over. e other pilot truck driver called D & D's health and safety co-or- dinator to report the incident and mentioned she had smelled mari- juana at the accident scene. e health and safety co-ordina- tor arrived at the scene about two hours later, examined Gilbert's truck and the accident scene and drove Gilbert back to Grande Prairie. During the drive, Gilbert appeared to be uninjured and coherent and she explained she had been driving too fast, caus- ing her to slide around the corner and into the ditch. However, the co-ordinator also noticed that Gil- bert's bag smelled like marijuana. Post-incident drug test ordered e co-ordinator informed Gil- bert she would have to take a post- incident drug test at the office, but Gilbert told him she thought she would fail because she had been vaping marijuana two days ear- lier. She denied using the drug at the time of the accident, though the co-ordinator's truck smelled strongly of marijuana after the bag had been in it during the drive. Gilbert spent some of the time in the truck on the phone with her son. Shortly before Gilbert was to take the test, the co-ordinator saw her go outside and meet someone in a Jeep who handed her some- thing. Soon after, Gilbert went to the washroom and returned with a urine sample for testing. e health and safety admin- istrator who was performing the test noticed the temperature strip on the urine sample wasn't activated, which meant the urine wasn't warm enough to be tested. e administrator put a gloved finger inside and found the sample to be cold. When asked why her sample was cold, Gilbert said she had just come in from outside. She was told to provide another sample, and this one tested positive for THC. D & D's general manager was informed of the test results and met with Gilbert. When asked, Gilbert told him she didn't have any drug problems and didn't need any help, so the general man- ager terminated her employment. e next day, Gilbert gave a doctor's note to the health and safety co-ordinator that stated she would require modified du- ties as a result of injuries from the accident. The co-ordinator hadn't yet been informed that Gilbert had been dismissed, so he offered her modified duties, which Gilbert ac- cepted. e day after that, Gilbert provided a note from a different doctor that said she was unable to work and she withdrew her accep- tance of modified duties. Gilbert then filed a complaint for unjust dismissal under the Canada Labour Code. e adjudicator found that the evidence showed Gilbert's 2016 truck accident was caused by driv- ing too fast, and this caused sig- nificant damage to her truck. is was a breach of her responsibility of driving safely and appropriately for road conditions. Based on D & D's progressive disciplinary policy, Gilbert would have been subject to a suspension without pay for the accident, giv- en her "pattern of careless driving behaviour," said the adjudicator. The adjudicator also found there was no evidence Gilbert was impaired at the time of the accident. Despite the fact every- one smelled marijuana in her bag, all witnesses agreed she appeared to be coherent and not impaired, and no one felt the need to ask her about it. In addition, the positive test for THC did not demonstrate impairment because it can remain in the system long after impair- ment has ceased — and Gilbert acknowledged consuming mari- juana two days earlier. However, the cold urine sample combined with the fact Gilbert was observed being given something by someone shortly before the test supported the idea she attempted to falsify her drug test results. This required planning and made it difficult for D & D to man- age its workplace safety. Gilbert's dishonesty constituted serious misconduct that justified dis- missal, said the adjudicator. "e issue here is not job per- formance, though there were demonstrated issues in that re- spect particularly for a profession- al driver related to driver safety, such as that some immediate step like a suspension would have been appropriate," said the adjudicator. "Rather, in my view, it was the dishonesty on the part of Ms. Gil- bert that effectively undermined the viability of the employment relationship because it demon- strated planning and forethought, involved others and was aimed at the integrity of a monitoring pro- cess by which the employer could try to manage the risk presented by the employee's behaviour." For more information, see: • Gilbert and D & D Energy Ser- vices Ltd., Re, 2017 CarswellNat 2499 (Can. Lab. Code Adj.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment lawtoday.com. "e issue here is not job performance... rather, it was the dishonesty on the part of Gilbert that effectively undermined the viability of the employment relationship." LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com

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