Canadian Employment Law Today

April 11, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did the company have enough reason to discharge the worker? OR Was there insuffi cient cause for discharge? IF YOU SAID there was insuffi cient cause for discharge, you're correct. e arbitra- tor noted that the worker didn't have much credibility, since he claimed to have a pre- scription for medical marijuana, but in fact he didn't until after he was terminated. As a result, the marijuana he used at the time of the incident wasn't medical in nature. However, there was no proof the worker used marijuana at work. e supervisor said he smelled marijuana, saw the worker in an area known for drug use, saw smoke come from the other employee's mouth, and saw something smouldering on the ground. However, the supervisor did not see the worker smoking or exchange anything with the other employee, nor could he tell if the smell was coming from the worker. In addi- tion, though the worker seemed upset and jittery during the interview, this could well have been due to the circumstances, partic- ularly since no one else present made those observations, said the arbitrator. "Although the (worker) lied about having a prescription and gave a self-serving account of the incident, it does not follow that he was not telling the truth when he insisted that he had not smoked marijuana near the recti- fi er building on Oct. 5," the arbitrator said. "In my opinion, (the supervisor's) eyewit- ness account does not compel the conclu- sion that the (worker) was probably smoking marijuana." e arbitrator found Bombardier didn't prove it was likely the worker smoked mari- juana on its property and therefore didn't have just cause to discharge him. Bombardier was ordered to reinstate the worker without loss of seniority. e arbitrator also made the follow- ing comment: "As the deadline for legalizing marijuana use approaches it has become notorious that current tests for cannabinoids are incapable of demonstrating either present impairment or recent consumption. Unless and until more sophisticated tests become available, it seems to me that the parties' Substance Abuse Joint Committee or other suitable fo- rum might well consider other more reliable methods of assessing impairment and/or al- ternative policy approaches to the problem of marijuana in the workplace." See Bombar- dier Transportation and Unifor, Local 1075 (CT), Re, 2018 CarswellOnt 3701 (Ont. Arb.). Bombardier worker fi red up over dismissal for smoking dope THIS EDITION of You Make the Call fea- tures a worker who was fi red for smoking marijuana at work while on break. e worker was employed at the under Bay, Ont., plant of Montreal-based Bombar- dier Transportation. Bombardier's drugs and alcohol policy prohibited employees and anyone else on its property from "being under the infl u- ence, consuming, using, possessing or traf- fi cking drugs or alcohol… anywhere on the company premises." e policy also allowed for testing of its employees in circumstances where a supervisor had reasonable grounds to believe an employee is under the infl uence of drugs or alcohol that could lead to a safety issue. Bombardier's collective agreement with its union also stated that substance abuse was harmful to both employee wellbe- ing and the company's operations. On Oct. 5, 2017, the worker's supervisor saw the worker and another employee were seen outside the plant in an out-of-the way area. Drug paraphernalia had been found in this area, including small pipe-shaped objects made from component parts at the plant containing residual traces of marijua- na. As a result, a camera had been installed in the area but was blocked by a trailer. e supervisor detected a strong smell of marijuana and walked towards the pair of employees, observing smoke coming from the other employee's mouth. e worker turned and looked at the supervisor, who saw something hit the ground and smoulder beside the other employee. e supervisor searched the area but didn't fi nd anything, but told the two of them to report to the HR offi ce. e two employees were interviewed together and the supervisor thought the worker's eyes were "glossy" and he seemed "jittery." e HR people there didn't describe any signs of impairment, though they were agitated and upset. e worker denied he had been smoking marijuana and when he was told he would have to take a test, he said it would be positive because he was a regular user of medical marijuana at night and not at work. He explained that he had begun self- treating anxiety and post-traumatic stress disorder (PTSD) with marijuana to reduce his dependency on psychoactive drugs and his doctor approved. e supervisor thought he still smelled marijuana, but two HR peo- ple present — one was a tobacco smoker and one had a cold — didn't. e worker also said he wasn't that close to the other employee and he was walking with his back turned to the other employee and texting on his cellphone. e worker subsequently tested positive for THC — marijuana's active ingredient. He and the other employee were discharged for smoking marijuana at the workplace. One month after his discharge, the worker ob- tained a prescription for medical marijuana for PTSD and to help stabilize and reduce his dependence on opioid drugs.

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