The Grievor Was Reinstated, Or Was He?

July 2018

Article by: Graeme McFarlane

Previously printed in the LexisNexis Labour Notes Newsletter.

In the case of International Brotherhood of Electrical Workers, Local Union 1620 v. Lower Churchill Transmission Construction Employers’ Assn. Inc. (Uprichard Grievance), [2017] N.L.L.A.A. No. 4, the arbitrator was faced with a reconsideration of his earlier decision to uphold the discharge of an employee for his failure to disclose medical marijuana use.  On judicial review, the court had found that there was just cause to impose discipline but the arbitrator’s reasoning was inadequate with respect to the finding that termination was the appropriate remedy.  The matter had then been remitted to the arbitrator.

The facts of the case are relatively simple. The grievor took a number of steps to actively conceal the fact that he had a medical marijuana prescription and was a regular marijuana user.  He claimed he did not use while working and had followed his doctor’s recommendation regarding marijuana use.  He knew that his employer had zero tolerance for drugs at the camp, but hid his drugs beside the road where he accessed them during his 21-day rotation.

The employer had a number of policies relevant to the grievor’s conduct. Under those policies, an employee was obligated to report to a supervisor if he or she was “taking a prescription or non-prescription drug for which there [was] a potential unsafe side effect”.

The grievor did not report his use of medical marijuana because he was worried he would be sent home. He deliberately left blank a portion of the onboarding medical questionnaire which dealt with medication.  There was no dispute that the grievor worked in a safety-sensitive position and marijuana use could have serious safety implications.

In the original decision, the arbitrator held that the employer rules satisfied the Meiorin test, and the grievor had engaged in significant misconduct by failing to report his medical marijuana use.  The arbitrator also held that there were no mitigating circumstances and therefore discharge was appropriate.

On judicial review, the union argued that the employer had not offered any accommodation (although none was requested) and no consideration had thus been given to alternate outcomes. The Court ultimately found that the “harsh” penalty of termination was not supported because, in part, accommodation issues had not been examined.

In his supplementary award, the arbitrator clearly thought a significant penalty was warranted. He did not agree with the union’s submissions that the grievor should be able to blithely use medical marijuana as he had before.  He stated:

If the grievor is allowed to continue the same conduct without any significant penalty, the penalty would not have a deterrent effect on other employees. The penalty should not encourage other employees to deliberately conceal medical marijuana usage or conceal other prescription or non-prescription drug usage.  The disclosure obligation is an important part of ensuring a safe workplace and is an important part of the Policies.  Therefore, the penalty needs to be significant enough to serve the deterrent purpose of discipline.

The arbitrator then fashioned a disciplinary outcome akin to a termination. He reinstated the grievor without any back pay.  However, reinstatement was made to the status of an employee without pay subject to return to active duty on appropriate conditions.  The employer and the union were to agree on those conditions, and the arbitrator gave some examples of what those conditions might include:  random drug testing; random work performance monitoring; modification of the medical marijuana prescription to conform to Health Canada recommendations; and acceptable levels of THC metabolite levels.  The union had objected to any restrictions linked to reinstatement and it is unknown whether any agreement was ever reached between the parties.  On reading the supplementary award, it appears that the arbitrator may have wanted to fashion a remedy that he knew would likely not result in the employee’s return to the workplace.

This case highlights the need to be vigilant when dealing with employees who violate a substance use policy. There has now been judicial and arbitral suggestion that focusing on the non-reporting of substance use will provide the grounds necessary for discharge for cause.  However, as this case illustrates, that may not be the case, and it will be prudent to investigate any potential accommodation or at least have an express indication from the union that accommodation is not required.