Canada: Dismissal Following Positive Drug Test Excessive Form Of Discipline, Alberta Arbitration Board Rules

Last Updated: November 22 2016
Article by Ashley Savinov

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.


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)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ashley Savinov
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.