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Key Workplace Drugs & Alcohol Testing & Discipline Cases Decided Since Cannabis Legalization

It’s been 2 years since Canada officially legalized recreational cannabis on October 17, 2018. Of course, while the product might now be legal, using or being impaired by it while at work never has been and never will be. The same thing is true of other legal substances that have impairing effects, such as medical cannabis, alcohol and prescription drugs. Also unchanged are the rules governing an employer’s right to test for cannabis and impose discipline for a positive result. As it always has, it all comes down to a balancing of the employer’s right to ensure a safe workplace and an employee’s right to privacy and freedom from discrimination.

What makes things so tricky for employers and OHS directors is that the rules aren’t clearly spelled out in any legislation or regulation. Instead, their created by courts, arbitrators and other tribunals in individual cases based on their own unique set of facts. To make sense of this massive body of dense legal material, you must be able to not only track down the cases but also analyze them and seek to apply the lessons to your own policies and circumstances. Needless to say, that’s a daunting task, especially if you’re not a trained lawyer and don’t have the budget to hire one to do the analysis for you.

With this in mind, OHS Insider created this scorecard, which boils down all of the key drug and alcohol testing and discipline cases decided in Canada in the 24 months since legalization. In addition to telling you who won, the scorecard explains why the particular testing or disciplinary action was or wasn’t upheld in a way that you can use to evaluate the legal soundness of your own policies and practices.

Employers Lose Roughly 2 of 3 Drugs & Alcohol Cases

Despite a brief COVID-19 pause, there have been at least 29 different workplace drugs/alcohol testing and discipline cases reported in Canada since October 17, 2018. Of these, employers have won only 10; 18 have gone to workers or their unions, and there was one split decision.

Employer Wins (10 Cases)

Despite a brief COVID-19 pause, there have been at least 29 different workplace drugs/alcohol testing and discipline cases reported in Canada since October 17, 2018. Of these, employers have won only 10; 18 have gone to workers or their unions, and there was one split decision.

1. Federal Arbitrator OKs Termination for Drunk Driving of Railway Vehicles

What Happened: Sensing that something wasn’t right, a railway worker advised a Signals & Communications Maintainer (SCM) to take a cab home. But the SCM ignored the advice and proceeded to drive rail vehicles. After the co-worker felt compelled to report, the SCM tested positive for alcohol and was fired; he was also charged with a criminal offence. After a 3.5 hour expedited hearing, the arbitrator upheld termination. The union appealed and added a new claim—disability discrimination.

Ruling: The federal labour arbitrator rejected the grievance.

Analysis & Takeaway: It was too late to argue discrimination; besides, there was no evidence the SCM was alcoholic or entitled to accommodation. And even though he was genuinely sorry and took responsibility for his behaviour, operating a railway vehicle while intoxicated was just cause to fire him from his safety-sensitive job. The arbitrator cited extensive case law supporting a railway employer’s rights to terminate safety-sensitive workers found to be impaired on the job to deter other workers from doing the same.

Canadian National Railway Company (CN) v International Brotherhood of Electrical Workers System Council No. 11, 2019 CanLII 123925 (CA LA), December 23, 2019

2. Federal Arbitrator OKs Firing Engineer for Using Cocaine While Operating Train

What Happened: An engineer had to take a for-cause drug test after driving his train off the rails. The test came back positive for cocaine and the engineer was fired. The union contended the engineer had a disability, namely, drug dependency and that the railroad violated his right to accommodation by firing him.

Ruling: The federal arbitrator upheld the termination.

Analysis & Takeaway: The arbitrator concluded the engineer was actually a casual user, noting that the only medical evidence of dependence was a doctor’s note referring to his undefined “problem.” As a result, the case was a disciplinary rather than disability discrimination matter and operating a train while impaired was just cause to terminate.

Teamsters Canada Rail Conference v Canadian Pacific Railway, 2019 CanLII 89682 (CA LA), September 22, 2019

3. Manitoba Arbitrator OKs Terminating Railway Worker for Positive Drug Test

What Happened: A railway worker involved in a near-miss incident had to submit to post-incident urine testing. When the test came back positive for marijuana, he admitted to using pot the night before. The follow-up test of his oral sample detected both pot and cocaine. The worker exercised his right for a re-test, but there wasn’t enough of the sample left. A few weeks later, he underwent genetic hair follicle testing at his own expense. Although that test came back negative, he was fired 2 days later. The arbitrator rejected the union’s grievance.

Ruling: The Manitoba court dismissed the union’s appeal.

Analysis & Takeaway: The medical evidence and test results supported the arbitrator’s finding that the employee was impaired at the time of the incident; and the negative genetic test didn’t contradict that finding.  impairment. The other reason the employer won is that it stuck to the terms and procedures of the testing policy contained in the collective agreement.

UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91 (CanLII), June 8, 2020

4. Ontario Arbitrator OKs Firing Employee Caught Smoking Pot on the Job

What Happened: A waste management company fired an employee for smoking pot at work. Among the evidence was video from a colleague’s cell phone showing the employee, who was already under suspicion due to the marijuana odor on his clothes and his history of toking on the job, smoking from a pipe on the second floor of the work facility. The employee denied the charge, insisting that the guy on the cell phone wasn’t him and that he hadn’t gotten high at work for a “long time.”

Ruling: The Ontario Labour Relations Board found just cause to terminate.

Analysis & Takeaway: As even the employee admitted, toking in that safety-sensitive workplace was a clear violation of company policy and grounds for termination. And even without the cell phone video, there was plenty of evidence showing that he was smoking pot at work that day.

Miller Waste Systems Inc. v Christopher Charlebois, 2019 CanLII 29752 (ON LRB), April 2, 2019

5. Québec Arbitrator OKs Terminating Warehouse Worker for Drinking While on Safety Duty

What Happened: A warehouse worker was found drinking beer in his car while serving as shift safety supervisor. After initially insisting he had only half a beer, he finally ‘fessed up and asked for leniency.

Ruling: The Québec tribunal ruled that the employer was justified to fire him for safety reasons.

Analysis & Takeaway: He knew the rules banning drinking at work and deliberately violated them while on safety duty. “He has irreparably broken the employer’s trust and must bear the consequences,” the arbitrator concluded.

Pelletier and Costco Wholesale Canada Ltd. / Costco Lévis, 2019 QCTAT 4890 (CanLII), November 6, 2019

6. Ontario Arbitrator Rejects Alcoholism Excuse of Crane Operator Fired for Sleeping on Job

What Happened: A steel mill decided that a probationary crane operator wasn’t suitable for full-time employment after finding him asleep at the switch. The operator admitted the offence but blamed it on his alcohol dependence.

Ruling: The Ontario arbitrator rejected his disability discrimination claim.

Analysis & Takeaway: While the operator drank and had a DUI conviction, drinking too much isn’t necessarily a disability. After the incident, the operator was specifically asked if he had a substance abuse problem but said no. The only evidence of dependency was the operator’s declaration that he was an alcoholic. But mere self-declaration isn’t enough to prove a disability, the arbitrator reasoned in tossing the grievance.

Algoma Steel Inc. v United Steelworkers, 2020 CanLII 35300 (ON LA), May 21, 2020

7. Federal Arbitrator OKs Firing Driver for Concealing Medical Marijuana Use

What Happened: A bus driver who fell asleep at the wheel was fired for not disclosing his sleep problems and the fact he smoked pot to treat them on his pre-employment medical questionnaire. While not denying the allegation, the union grieved claiming the termination letter was too vague as to the reasons for firing.

Ruling: The federal arbitrator upheld the firing.

Analysis & Takeaway: The termination letter was fine. And even if it was defective, the driver’s concealment of his sleep and drug issues was grounds for finding that he was hired under false pretenses and that his employment contract was null and void.

Outaouais Transportation Corporation (STO) c United Transportation Union (Unit 591), 2019 CanLII 49260 (CA SA), May 31, 2019

8. Ontario Arbitrator OKs Firing Worker for Breaking Promise to Submit to Random Drug Testing

What Happened: As part of a return to work agreement, a personal support worker (PSW) agreed to submit to off-site random drug testing. But when her supervisor asked her to take a test, she refused. As a result, she was fired.

Ruling: The Ontario arbitrator dismissed the union’s wrongful termination grievance.

Analysis & Takeaway: While acknowledging that the refusal violated the agreement, the PSW blamed it on humiliation and the tough personal times she was experiencing with her mother. But the agreement provided for this possibility and specifically said that the PSW “cannot use childcare obligations or any other reason as an excuse” to not undergo testing.

Regional Municipality of Peel and Community Workers The Sheridan Villa v Canadian Union of Public Employees, Local 966, 2019 CanLII 91782 (ON LA), September 26, 2019

9. NWT Court OKs Firing Worker for Violating Terms of Alcohol Treatment Plan

What Happened: A mining company had a program offering assistance to workers with substance abuse issues and allowing them to return to work after successfully completing residential treatment and aftercare. A safety-sensitive heavy equipment operator with an alcohol dependency entered the program requiring him to, among other things, call into a Substance Abuse Professional at least once a month for 9 months after completing the residential portion of the program. But after missing 4 calls in a row, the company decided it had had enough and fired him.

Ruling: The Northwest Territories’ court upheld the arbitrator’s dismissal of the union’s grievance.

Analysis & Takeaway: The arbitrator had found that the operator was fired not because he was disabled but because he deliberately failed to follow the terms of his treatment plan. The argument that the calls were useless, even if true, cut no ice because the operator agreed to make the calls and deliberately broke his promise. The court said the arbitrator’s decision was reasonable and tossed the appeal.

Public Service Alliance of Canada v Dominion Diamond Ekati Corporation, 2019 NWTSC 59 (CanLII), December 20, 2019

10. Alberta Tribunal OKs Firing Medical Cannabis User for Refusing Medical Assessment

What Happened: Just as he was about to undergo random testing, a cement operator admitted to using medical marijuana. After he tested positive for THC, the employer referred him for medical assessment and looked for non-safety-sensitive jobs he could do. But the operator made a stink and didn’t show up for the assessment. As a result, he was fired.

Ruling: The Alberta Human Rights Commission dismissed the operator’s disability discrimination complaint.

Analysis & Takeaway: The operator’s deliberate failure to cooperate torpedoed the employer’s efforts to accommodate the operator’s medical cannabis use.

Bourassa v Trican Well Service Ltd., 2019 AHRC 13 (CanLII), May 2, 2019

Employer Loses (17 Cases)

Of all the cases decided since legalization, the Newfoundland Court of Appeal ruling in IBEW, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc. (Case 6 below) is probably the most significant because it directly addresses a legal question that has long been at issue in all parts of Canada, namely, whether a positive test for cannabis proves the worker was actually high at the time of testing. The problem is that cannabis takes longer to metabolize than alcohol and can remain in the system long after the buzz is gone. Historically, the lack of a reliable test has worked in employers’ favour. The Newfoundland Lower Churchill case is crucial because it reverses that and requires employers to dig deeper after a positive cannabis test to show current impairment.

1. Newfoundland Court Says Not Hiring Medical Cannabis User Is Failure to Accommodate

What Happened: The issue was whether an employer could refuse to hire a safety-sensitive construction worker who admitted to legally vaping 1.5 grams of medical cannabis containing high THC levels after work for Crohn’s disease pain. The worker was entitled to accommodations, the Newfoundland arbitrator ruled, but without a test capable of detecting current impairment, hiring him for a safety-sensitive job would be undue hardship.

Ruling: The Newfound Court of Appeal reversed the ruling and said the employer didn’t do enough to accommodate the worker.

Analysis & Takeaway: The lack of a reliable test is too easy an excuse since all employers must do to deny employment to medical cannabis users is show their jobs are safety-sensitive. The Court said the standard should be higher. Maybe there are other ways to determine a worker’s fitness for duty, like a daily pre-shift functional assessment. Employers should have the burden of proving they considered these alternatives and explaining why they were rejected.

IBEW, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20 (CanLII), June 4, 2020

2. Federal Arbitrator Says Failed Drug Test Without Proof of Impairment ≠ Cause to Terminate

What Happened: A safety-sensitive railway worker involved in a collision incident was fired after his post-incident urine test came back positive for cannabis. The worker admitted to smoking pot while off duty the night before but insisted he wasn’t high when the incident occurred. But the railway claimed it had the right to terminate him for failing the drug test regardless of whether he was actually impaired at the time of testing.

Ruling: The federal arbitrator disagreed and ordered the company to reinstate him, but without awarding him damages.

Analysis & Takeaway: Once more, the lack of a reliable test for cannabis impairment came back to bite an employer. A drug policy allowing for termination merely because of a positive test without requiring proof of impairment is unreasonable even for a safety-sensitive work and operation, the arbitrator concluded.

Bombardier Transportation Canada Inc. v Teamsters Canada Rail Conference, 2020 CanLII 53040 (CA LA), August 4, 2020

3. Nova Scotia Arbitrator Says Pot Odor from Worker’s Car Doesn’t Prove Impairment at Work

What Happened: An elevator mechanic with a history of cannabis use got fired for allegedly smoking pot before his shift. The chief evidence: The project manager smelled marijuana smoke as he walked by the mechanic’s jeep in the parking lot.

Ruling: Not enough proof, said the Nova Scotia arbitrator who reinstated the mechanic with no loss of pay (but also subject to the current last chance conditions imposed on him as a result of his unrelated attendance problems).

Analysis & Takeaway: While the manager might have thought he smelled pot, he acknowledged that it was too dark to see anything. What he might have smelled was the stale aroma of old pot mixed with tobacco smoke, which confirmed the mechanic’s story that he was smoking a cigarette when the manager passed by. After all, nobody else testified to detecting the smell of pot on or any signs of impairment in the mechanic once work began. The company also had a safety policy banning workers from working impaired. So, while not doubting the sincerity of the manager’s suspicion, the arbitrator chided him for allowing the mechanic to proceed to work his safety-sensitive job and then drive home

Kone Inc. v International Union of Elevator Constructors, Local 125, 2020 CanLII 2377 (NS LA), Jan. 18, 2020

 4. Newfoundland Tribunal Finds Reporting Non-Safety Sensitive Med Cannabis User’s Drug Test Is Disability Discrimination

What Happened: After testing non-negative for THC, an applicant for a nursing position at an offshore oil platform explained that he had spinal bone cancer and used legally authorized medical marijuana to treat the pain. The testing company, AOMS, a medical services company hired to provide nursing staff for the platforms, flagged the applicant as a safety risks and reported the results up the chain of command to the subcontractor and thence to the Husky, the energy company that owned the sites as the latter’s drug policy required.

Ruling: The Newfoundland Human Rights Commission found AOMS guilty of disability discrimination. AOMS appealed but to no avail.

Analysis & Takeaway: The Husky policy required AOMS to report positive tests of applicants for safety-sensitive jobs. But the applicant didn’t test positive; and the nursing job he was seeking wasn’t safety-sensitive. AOMS also treated the Husky policy as a zero tolerance policy and disregarded the allowances and accommodations it made for legal users of prescription drugs. Result: AOMS owed the applicant damages and a written apology.

Maharajh v Atlantic Offshore Medical Services Limited, 2020 CanLII 49888 (NL HRC), July 14, 2020

5. Saskatchewan Arbitrator Strikes Down Overly Broad Drug/Alcohol Testing Policy

What Happened: The union claimed that certain aspects of a health agency’s new drug and alcohol testing policy were overly broad and unenforceable.

Ruling: The Sask. arbitrator agreed.

Analysis & Takeaway: The arbitrator cited the following problems for striking down the policy:

  • Instead of defining all health workers in a classification as safety-sensitive, the agency should have done a position-by-position assessment
  • The agency’s right to “ask” non-safety-sensitive workers submit to testing and put a note in their files if they refused unreasonably pressured workers to consent
  • Random testing for any worker treated for an addiction disability or committed a policy violation was overbroad and violated Supreme Court random testing rules
  • Post-incident testing after incidents, accidents and near misses was too broad and should have required evidence that impairment was a factor

Sask Health Authority v Health Sciences Association of Sask, 2020 CanLII 25719 (SK LA), March 31, 2020

6. Newfoundland Arbitrator Nixes Random Drug Testing of Safety-Sensitive Helicopter Pilots

What Happened: A helicopter company seemed to have a compelling case that random drug testing of pilots shuttling between offshore oil platforms was a necessary safety measure. True, there was no documented history of drug problems at this workplace. But you shouldn’t need one in these kinds of “extreme circumstances,” the company argued. After all, helicopter pilots are clearly safety-sensitive (the policy was adopted after a tragic 2009 helicopter crash in which 17 people were killed), the flying conditions in the North Atlantic were treacherous and legalization made cannabis use more likely. Moreover, the testing method relied on oral swab rather than urine samples.

Ruling: In the Newfoundland arbitrator’s eyes, the pilots’ privacy rights trumped all of this.

Analysis & Takeaway: While not as intrusive as other test methods, oral swab testing “still amounts to a removal of intimate bodily information, including DNA, without the consent of the employee” and constitutes “an unjustified affront to the dignity and privacy rights of the affected employees,” the arbitrator concluded in striking down the policy.

Office and Professional Employees International Union v Cougar Helicopters Inc., 2019 CanLII 125448 (NL LA), December 9, 2019

7. Alberta Arbitrator Finds Daily Random Alcohol Test Monitoring Protocol Too Intrusive

What Happened: An Edmonton police officer who admitted his reliance on alcohol to deal with the stressors of his personal life was put on leave and required to complete rehab. To return to work and avoid disciplinary consequences, he also had to agree to undergo alcohol testing multiple times per day for 2 years using a Soberlink breathalyzer device. The officer claimed the testing protocol was unreasonable.

Ruling: The Alberta arbitrator agreed.

Analysis & Takeaway: Although test monitoring for safety-sensitive jobs like police officer may be reasonable, the Soberlink device’s methodology of analyzing oral breath samples was highly intrusive and not justified in these circumstances. The other problem was that the test results were kept in the US beyond the control of Canadian regulators and could be disclosed without the officer’s consent in no fewer than 20 different situations. So, the arbitrator awarded the officer $7,500 in breach of privacy damages.

Edmonton Police Association v Edmonton Police Service, 2020 CanLII 59942 (AB GAA), August 25, 2020

 8. Alberta Arbitrator Says Finding Drug Kit Is Not Grounds to Test Everyone at Plant

What Happened: All 4 employees on shift at the time a supervisor at a safety-sensitive paper mill found a drug paraphernalia kit in the men’s washroom were required to undergo—and passed—for-cause drug testing. The union claimed that the testing was unjustified.

Ruling: The Alberta arbitrator agreed and awarded the employees damages for breach of privacy.

Analysis and Takeaway: Just being at the plant when the kit was found wasn’t sufficient evidence to trigger testing under the policy. There had to be at least circumstantial evidence linking the kit to the particular individuals tested.

Weyerhaeuser Canada v Unifor Local 447, 2019 CanLII 116919 (AB GAA), Nov. 28, 2019

 9. Federal Court Says Co-Worker’s Accusation Not Enough to Justify Reasonable Cause Testing

What Happened: A mine worker complained that a co-worker on his crew was smoking pot. At the supervisor’s urging, the worker gave a written statement indicating that the co-worker and another crew member “were both smoking drugs all morning, it goes on a daily basis.” So, the supervisor asked the 2 accused workers to submit to drug testing under the company’s reasonable cause testing policy. When they refused, the company fired them. All agreed that the policy itself was legit, especially since the workers were safety-sensitive. The question was whether there was “reasonable suspicion” to test.

Ruling: The federal arbitrator said no.

Analysis & Takeaway: The policy said “reasonable suspicion testing [must be] based upon the employee’s conduct as observed by a supervisor.” And since the supervisor didn’t actually observe the alleged drug use, testing wasn’t justified. The employer contended the arbitrator read the policy too literally, but the court disagreed and tossed the appeal. The clause requiring direct suspicion by a supervisor was clear and if the employer thought it was being applied too narrowly, it should have reworded it.

Mudjatik Thyssen Mining Joint Venture v. Billette, 2020 FC 255 (CanLII), Feb. 14, 2020

10. Saskatchewan Arbitrator Finds Inadequate Proof to Discipline Nurse for Stealing Drugs

What Happened: A health agency disciplined a veteran nurse for stealing a bottle of morphine tablets from the home of a patient she was treating. The nurse denied the charge.

Ruling: The Saskatchewan arbitrator sided with the union.

Analysis & Takeaway: There were no eyewitnesses, only circumstantial evidence suggesting that the nurse committed the theft. What was clear is that the nurse had a 20-year discipline-free service record and so much to lose if she got caught. And since the employer had the burden of proof, the close case went in the nurse’s favour.

Saskatchewan Health Authority v CUPE, 2019 CanLII 2192 (SK LA), Jan. 3, 2019

11. Ontario Court Says Firing Addicted Nurse for Stealing Drugs May Be Discrimination

What Happened: A nurse admitted to stealing drugs from the hospital for her own use but blamed it on her drug addiction. The arbitrator didn’t buy it and found that her actions were “voluntary.”

Ruling: The Ontario appeals court reversed the arbitrator’s ruling as unreasonable.

Analysis & Takeaway: “Voluntary” for purposes of committing a criminal act is different from voluntary for purposes of determining if there’s a causal connection between behaviour and an addiction disability. Because the arbitrator’s decision didn’t address this issue, the case had to go back down for a new trial.

Ontario Nurses’ Association v. Royal Victoria Regional Health Centre, 2019 ONSC 1268 (CanLII), June 10, 2019

12. Another Ontario Court Says Firing Addicted Nurse for Stealing Drugs May Be Discrimination

What Happened: A hospital fired a registered nurse with 28 years of service for stealing narcotics. The arbitrator agreed that the nurse had a disability, namely drug addiction, but still upheld the termination.

Ruling: The Ontario appeals court found the arbitrator’s ruling unreasonable, ordered a new trial and awarded the nurse $8,000 in legal costs.

Analysis & Takeaway: Having found that she was addicted and that her addiction was a contributing factor in stealing the drugs, the arbitrator should have recognized that the nurse had a valid legal claim and given her a chance to prove it at trial.

Ontario Nurses’ Association v. Cambridge Memorial Hospital, 2019 ONSC 3951 (CanLII), July 17, 2019

13. NWT Arbitrator Says Alcohol Possession Firing without Asking About Dependency Is Failure to Accommodate

What Happened: A social welfare worker in a distant, isolated rural community where alcohol was banned got fired after the RCMP confiscated a package addressed to her containing beer, wine and hard liquor. The union claimed discrimination because the employer didn’t first ask the worker if she had an alcohol dependency requiring accommodation.

Ruling: The arbitrator found the employer liable for failure to accommodate and upheld the grievance.

Analysis & Takeaway: To activate the accommodations process, employees are supposed to come forward and seek help for their dependencies. The problem is that employees often don’t realize they have dependencies. And given previous indications, the employer should have at least asked the employee if she had alcohol issues before deciding to fire her for smuggling in booze.

Union of Northern Workers v Govt. of the Northwest Territories, 2019 CanLII 18391 (NT LA), Feb. 19, 2019

14. BC Tribunal Finds Evidence that Firing Medical Marijuana User May Have Been Disability Discrimination

What Happened: A store fired an assistant manager soon after learning that she used medical marijuana for migraine headaches and anxiety. The assistant manager claimed the timing was no coincidence and sued for disability discrimination.

Ruling: The BC Human Rights Tribunal allowed the case to go to trial.

Analysis & Takeaway: At this stage, it was too early to rule out the possibility that the assistant manager had actual disabilities and that this factored into the decision to fire her. So, dismissing the claim without giving her a chance to prove the allegations would be premature and unfair.

McNish v. The Source and others, 2019 BCHRT 126, June 21, 2019

15. Nova Scotia Arbitrator Says Firing for Alcohol-Related Absenteeism Is Failure to Accommodate

What Happened: A veteran mine worker with alcohol issues and a history of attendance problems got fired for not showing up for 2 shifts in a row without notifying a manager at least an hour before the shift began in violation of his last chance agreement (LCA).

Ruling: The arbitrator reinstated the worker, but without compensation and on a conditional basis because of his failure to come forward and disclose his alcohol problem.

Analysis & Takeaway: The LCA was defective to the extent that making a person-to-person call to a manager of an underground mine is extremely difficult. More significantly, the LCA addressed just the absenteeism issues without dealing with their underlying cause, namely, the worker’s alcohol dependence. True, the worker never acknowledged his dependence; but the employer had plenty of evidence of it and didn’t take the trouble to explore and confirm its suspicions. As a result, enforcing the LCA violated the worker’s rights to accommodation.

UNIFOR, Local 823 v K + S Windsor Salt Ltd (Pugwash Facility, Nova Scotia), 2020 CanLII 64088 (NS LA), September 9, 2020

 16. BC Arbitrator Reinstates Maid Fired for Violating Last Chance Alcohol Agreement

What Happened: A ritzy hotel fired a housekeeper who got caught with alcohol in her lemonade bottle at work 10 months after signing a last chance agreement promising not to drink before shifts.

Ruling: The BC arbitrator reinstated the housekeeper with no loss of pay.

Analysis & Takeaway: The hotel had a legitimate interest in maintaining its reputation. It also recognized the and tried to accommodate the housekeeper’s stress issues via the last chance agreement. For her part, the housekeeper was forthright and honest about her alcohol use. So, the arbitrator decided that termination was too harsh and reinstated her with no loss of pay, provided that she complied with new, stricter conditions in her last chance agreement.

Harrison Hot Springs Resort v Unite Here, Local 40, 2019 CanLII 28162 (BC LA), March 11, 2019

17. Ontario Arbitrator Reinstates Transit Worker Fired for Refusing Drug Test

What Happened: A worker was found asleep in his car 30 minutes into his shift. Upon waking him up, the foreman notice that his eyes were bloodshot and that he was walking and talking unusually slowly. Suspecting drug/alcohol use, the foreman asked the worker to submit to testing under the company’s fitness for duty (FFD) policy. The worker refused and was fired.

Ruling: The arbitrator found no just cause to terminate and reinstated the worker.

Analysis: It came to the witnesses. Most of them testified that the worker seemed “very alert” during the shift and was normally sluggish. The arbitrator found the foreman who testified against the worker to be less credible and suggested that his “negative history” with the worker might have factored into his demand that the worker undergo FFD testing.

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2019 CanLII 36521 (ON LA), April 24, 2019


In addition to the above 27 rulings, there was one split decision in which for-cause testing was appropriate for one safety-sensitive worker but not another based on the circumstances involved.

Alberta Arbitrator OKs Post-Incident Testing of One Safety-Sensitive Worker but Not Another

What Happened: Two safety-sensitive workers had to submit to drug and alcohol testing after being involved in separate safety incidents. The first worker seriously injured himself by kicking a steel crowbar he was using to try to move a heavy load; the second worker was involved in a forklift spill with no injuries and only minor property damage. Both tested negative. The question: Was the company justified in requiring them to undergo post-incident testing’

Ruling: Yes, for the first worker and No for the second, concluded the Alberta arbitrator.

Analysis & Takeaway: The first worker’s decision to kick a load that could have easily been moved with a forklift was “impetuous and rushed,” not to mention out of character for a veteran worker with his excellent safety record; the second incident, by contrast, was fairly insignificant and thus not grounds for post-incident testing. However, since operator error was clearly involved and the forklift driver had been involved in 2 previous incidents, the company was justified in issuing him a warning.

Interfor Acorn v United Steelworkers, Local 2009, 2020 CanLII 47162 (AB GAA), June 17, 2020