November 17, 2016

Dismissal Following Positive Drug Test Excessive form of Discipline, Alberta Arbitration Board Rules

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A recent arbitration decision from Alberta tackles a myriad of issues related to a positive post incident drug test. In Epcor Utilities Inc. and CUPE, Local 30, 2016 CanLII 66181 (AB GAA) the Union grieved the termination of a bargaining unit member, a four-year employee (the “Grievor”) with Epcor Utilities in Edmonton, Alberta (the “Employer”). The Grievor was dismissed for testing positive on a post incident drug test; the test revealed the presence of illicit drugs (marijuana metabolite).

The Employer had several policy documents relating to drug and alcohol testing in the workplace as follows: Alcohol and Drug Standard; Alcohol and Drug Post Incident Testing Procedure; Alcohol and Drug Post Incident Review Form and Alcohol and Drug Testing Protocols (the “Policies”). In addition, the Employer had developed Life Saving Rules (the “Rules”).  One of the Rules was that the Alcohol and Drug Standard is to be followed. The Rules had its own Committee (the “Rules Committee”), one of the purposes of which was to ensure consistent application where the Rules were violated. The Grievor took courses in the Rules and the Alcohol and Drug Standard, both of which were mandatory, and passed.

The Union asserted that the Policies were unilaterally imposed by the Employer and that the Grievor, who tested positive for marijuana, was not in violation. The Union also challenged the fact that the post incident test had been administered in the circumstances.

The Incident

The Grievor was 25 years old at the time of the incident and worked in the role of Equipment Operator III, a safety sensitive position. He was working with a crew on a valve replacement job that required that the water in the area be shut-off. One of the crew’s employees was working in a trench, approximately 8 ½ - 9 feet deep, using a grinder to remove a valve. The guard on the grinder needed to be adjusted, so the employee passed it up to the Grievor for adjustment. The Grievor attempted to adjust the equipment while near the edge of the trench and slipped and fell in, on top of the other employee. Fortunately, neither was injured.

The crew reported the incident to the appropriate Foreman, who was off-site at the time working on another job. The Foreman then contacted the Employer’s Manager of Distribution Maintenance (the “Manager”). It was at approximately 2:00 p.m. at that time. The Manager instructed the Foreman to attend at the site and obtain statements.  He said it was ok for the crew to continue with the job until the Foreman finished the job he was working on and arrived at the site of the incident.

The Manager then called his boss, the Director of Water Distribution and Transmission (the “Director”) to report the incident. Both the Manager and Director, understanding that the position of the Grievor was safety sensitive, reviewed the flow chart contained in the pocket guide for post incident testing which formed part of the Employer’s Policies. They concluded that the incident was significant because the consequences could have been severe. Since the incident was “significant” a test was required. The Manager called the Foreman and advised him of same.

The Grievor, who meanwhile, was advised by the Foreman (upon his arrival at the site of the incident at around 5:00 p.m.), that he had to take a drug test. The Grievor’s response was that he would not pass the test. He testified to the fact that he had used marijuana four nights earlier. The Grievor also testified that the Foreman allowed him to get some cranberry juice to flush out the toxins, and then drove him to the testing site. After the test, the Grievor was advised that the result was positive. The confirmation test was also positive.

Due to the positive test, the Employer referred the Grievor to a Substance Abuse Professional (“SAP”). The Grievor told the SAP that he starting using marijuana one or two times per week to cope with stress, caused by some personal issues. During his assessment by the SAP, the Grievor committed to abstinence and to finding more effective ways to deal with stress; he also understood that continued use is incompatible with his job. The Grievor’s use of marijuana was characterized as recreational.

Although the Rules Committee recommended that the Grievor’s discipline should be a suspension of five days, subject to agreeing to a last chance agreement, the decision was ultimately made by the VP of Water Operations to terminate the Grievor. According to the evidence of the Manager, this was the first time to his knowledge that the recommendation of the Rules Committee had not been followed.

Decision

The decision of the arbitration board (the “Board”), written by the Board Chair, first determined that the Policies were not unilaterally imposed by the Employer, as the Union had asserted, but rather had been agreed to by the parties. The Chair easily concluded that the Union agreed to the changes previously implemented by the Employer by way of a Memorandum of Settlement dated April 22, 2010. The Board Chair then proceeded to determine if the Employer properly applied the Policies.

Although the information about the incident was provided to the Director third hand via telephone conversation (from the Manager who had spoken with the Foreman who was not actually present at the time of the incident) the Board Chair found that details provided to the Director were consistent with the Grievor’s own description of the event. Focusing on the actual incident itself, the Board Chair described the conduct of the Grievor as being a dangerous act. At paragraph 112 he stated:

The decision to try to perform a function near the edge of a trench is of itself careless for an employee in a safety sensitive position, but to perform a procedure that requires force to be exerted in the direction of the trench, while at the very edge of the trench, directly above a co-worker who was in fact working and not looking up, was an obviously dangerous act. When the Grievor fell into [the other employee] it was fortunately only a glancing blow. It is miraculous that neither employee suffered serious injury.

While the Arbitrator held that the inquiry into the incident by the Employer should have been more thorough before the decision was made to test the Grievor, he concluded that the inquiry was sufficient. The Board Chair accepted the Director’s evidence that her conclusion that the act of the Grievor, having kneeled at the top of a trench and putting pressure on equipment over the side of the trench, was an act that contributed to the incident. He also agreed that the incident was “significant” and determined that it was therefore necessary for the Employer to proceed to conclude if the incident was caused by the Grievor’s impairment.  The Board Chair determined that the Policies was reasonably applied by the Employer.

The Chair was then tasked with determining if the Grievor had in fact violated the Policies by testing in excess of the level specified for marijuana metabolite. The Union argued that there was no violation since the presence of marijuana metabolite does not indicate present impairment. The Board Chair gave little consideration to this argument and concluded that the Policies clearly set out the acceptable levels for drugs and alcohol and the evidence demonstrated that the Grievor was in breach.

Finally, the Chair concluded that while the Grievor should have received some form of discipline as a result of the positive drug test, termination was excessive in the circumstances of this case. In reaching this conclusion, the Board Chair pointed to the fact that a zero-tolerance approach is inconsistent with the Employer’s own Rules. The Chair pointed to the statement in the Rules presentation to employees which provided that the Employer would follow a progressive discipline approach to address any breaches.

Interestingly, the Chair did not appear to consider that the Employer’s Alcohol and Drug Standard expressly stated that any violation “may be grounds for discipline up to and including termination of employment”.

In deciding that termination was not appropriate, the Chair also considered the clean disciplinary record of the Grievor and that he was open and honest in his testimony before the Board, as well as the fact that the Rules Committee had recommended a suspension that had not been followed. Since the parties requested that the remedy in this case be reserved, should the grievance be allowed, no remedy was ordered by the Board Chair at this time.

Of note, the Employer’s nominee on the Board concurred with the Chair’s decision, except for the finding that termination was too severe. The Union’s nominee on the Board agreed with the result but not with all the reasoning and will provide reasons for her partial dissent in due course.

Takeaway for Employers

While generally, this decision is about whether a positive drug test amounts to just cause to terminate a bargaining unit member, it should serve as a reminder to employers to ensure that they carefully adhere to their policies as they relate to drug and alcohol testing or otherwise. This is especially important where employers, like the one in this case, have several policy documents or standards that may be inconsistent. As we saw in this decision, since one of the policy documents indicated that progressive discipline would be applied in event of a breach, the arbitrator found that the employer violated its own policy for failing to properly apply progressive discipline.

For a link to the decision, please click below:
EPCOR Utlities Inc. v Canadian Union of Public Employees, Local 30, 2016 CanLII 66181 (AB GAA)

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Dismissal Following Positive Drug Test Excessive form of Discipline, Alberta Arbitration Board Rules

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