Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 News | November 2017 | CSR co-worker, was "walking and talking fine." Another driver in a large truck arrived to help and also smelled marijuana when he got out. He attached a chain to Gilbert's truck and pulled it upright and out of the ditch with a winch on his truck. Gilbert continued to collect items that had fallen out of the back of her pilot truck, and once her truck was out of the ditch, the three of them waited for a few minutes. 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. She then taped over the broken driver's side window with a gar- bage bag. The other pilot truck driver called D & D's health and safety co-ordinator to report the accident and mentioned she had smelled marijuana at the acci- dent scene. The health and safety co-ordi- nator arrived at the scene about two hours later. Gilbert and the other pilot truck driver had been sitting in the latter's truck across the road from the destination site of the drilling rig. During this time, the other truck driver noticed an overwhelming smell of marijuana coming from Gil- bert's bag, but still didn't men- tion it to her. The health and safety co- ordinator 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 that she had been driving too fast, causing her to slide around the corner and into the ditch. How- ever, the co-ordinator also no- ticed that Gilbert's bag smelled like marijuana. Post-incident drug test ordered The co-ordinator informed Gil- bert she would have to take a post-incident drug test at the of- fice, but she told him she thought she would fail it because she had been vaping marijuana two days earlier. She denied using the drug at the time of the accident, though his truck smelled strong- ly of marijuana after the bag had been in it during the drive. Gil- bert spent some of the time in the truck on the phone. Shortly before Gilbert was to take the test, the co-ordinator saw her go outside the office and meet someone in a jeep who handed her something. Soon after, she went to the washroom and returned with a urine sam- ple for testing. The health and safety admin- istrator who was performing the test noticed that the tempera- ture strip on the urine sample wasn't activated, which meant the urine wasn't warm enough to be tested. The administrator put a gloved finger inside and found the sample to be cold. When asked why her sample was cold, Gilbert responded that she had just come in from out- side. She was told to provide an- other sample which tested posi- tive for THC, the intoxicating component of marijuana. 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 manager terminated her em- ployment. The next day, Gilbert provided 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 contacted her and offered her modified duties, which Gilbert accepted. The day after that, Gil- bert provided a note from a dif- ferent doctor that said she was unable to work and she with- drew her acceptance of modified duties. Gilbert filed a complaint for unjust dismissal under the Can- ada Labour Code. The adjudicator found that the evidence showed Gilbert's 2016 truck accident was caused by driving too fast, and this caused significant damage to her truck. This was a breach of her responsibility for driving safely and appropriately for road con- ditions, and she had a previous written warning for speeding, along with previous accidents causing damage to company vehicles. Based on D & D's pro- gressive disciplinary policy, Gil- bert would have been subject to a suspension without pay for the accident, given her "pattern of careless driving behaviour," the adjudicator said. The adjudicator also found that there was no evidence Gil- bert was impaired at the time of the accident. Despite the fact everyone 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 im- pairment 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 initial sam- ple combined with the fact Gil- bert was observed being given something by someone shortly before the test supported the idea that she attempted to fal- sify her drug test results. This required planning and made it difficult for D & D to manage its workplace safety. Gilbert's dis- honesty constituted serious mis- conduct that justified dismissal, said the adjudicator. "The issue here is not job per- formance, though there were demonstrated issues in that re- spect particularly for a profes- sional driver related to driver safety, such as that some im- mediate step like a suspension would have been appropriate," the adjudicator said. "Rather, in my view, it was the dishonesty on the part of Ms. Gilbert that effec- tively undermined the viability of the employment relationship because it demonstrated plan- ning and forethought, involved others and was aimed at the in- tegrity of a monitoring process by which the employer could try to manage the risk presented by the employee's behaviour." For more information see: • See Gilbert and D & D Energy Services Ltd., Re, 2017 CarswellNat 2499 (Can. Lab. Code Adj.). Falsified < pg. 3 Worker's initial urine sample was too cold for testing Credit: Shutterstock/Bjoern Wylezich

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