An employee was entitled to refuse to submit to a
reasonable-suspicion drug test where a supervisor smelled marijuana
in the employee's truck but had no other evidence of drug use
or impairment, a Nova Scotia judge has held.
The employer was a labourer with the Halifax Streets Department.
When the supervisor thought that he smelled marijuana in the
employee's truck, he asked him to submit to a drug test. The
employee refused, saying "it is none of your business what I
do when I am not here", and said that he was a recreational
user of marijuana and that the test would be positive anyway.
The employee was referred to a Substance Abuse Professional but
refused to answer questions about his off-duty drug use. The City
fired the employee for his "lack of cooperation and direct
violation of the HRM Substance Abuse Prevention Policy."
The employee grieved the termination, and an arbitrator
reinstated him. The City asked the court to overturn the
The court noted that although the City had a legal obligation to
protect employees' safety under the Occupational Health and
Safety Act, the arbitrator reasonably concluded that the
evidence suggesting that the employee had used or been impaired by
drugs on the job was very weak. In the circumstances, the
employee's refusal to submit to a drug test and to further
assessment was reasonable.
In short, the fact that the City had "safety concerns"
about the employee did not permit the City to dismiss him where the
City did not have just cause.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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