Employers are increasingly taking a "zero tolerance"
approach in which a minimum level of discipline – whether a
suspension or dismissal – is imposed for certain serious
safety violations. In a recent case, an arbitrator criticized the
approach as unfair to the employee.
Plant security, conducting a random vehicle search as the
employee left the premises, found a partially-consumed bottle of
flavoured vodka beneath some camping equipment in the trunk of the
vehicle. The employee co-operated in the search, expressed
surprise at the presence of the bottle, and voluntarily submitted
to drug and alcohol testing, the results of which were
The employee explained that he had borrowed his wife's
vehicle when his vehicle would not start, and that his daughter had
previously borrowed his wife's vehicle for a camping trip and
had apparently not unpacked the trunk. He confirmed this on a call
to his daughter in the presence of plant security. He said that he
was unaware that the bottle was in his trunk when he drove to work.
The employer admitted, at arbitration, that it had no reason
to disbelieve the employee.
The company suspended the employee for three days.
The company said that it had a zero tolerance policy on
possession of alcohol on plant property, calling for a minimum
three-day suspension. The company's "Rules of
Conduct" stated that "Possession and/or consumption of
alcohol and/or illicit drugs on Company property" would be
"subject to severe discipline, up to and including
discharge". All parties agreed that the workplace was
The arbitrator referred to "zero tolerance in the broader
sense of requiring that each and every incident be investigated and
addressed", in contrast to zero tolerance "in the narrow
sense of an automatic penalty for every violation regardless of the
circumstances." He stated, "Zero tolerance in the
latter sense has been held to be inconsistent with the just cause
standard, so that a rule that would otherwise pass the KVP test
must fail on the ﬁrst criterion of consistency with the
In conclusion, the arbitrator agreed that the company had just
cause to discipline the grievor for violation of the rule against
possession of alcohol on company property. He concluded,
"I accept that in the interest of workplace safety the Company
is justiﬁed in adopting an approach of zero tolerance for
breaches of that rule, to the extent that each and every incident
is to be investigated and appropriate discipline imposed. I reject
the imposition of an automatic penalty of suspension without regard
to the totality of the circumstances as inconsistent with the just
cause standard set out in the collective agreement."
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