Canada: Will Legalization Cause Workplace Safety To Go Up In Smoke?

Last Updated: April 26 2018
Article by Michèle Brown-Gellert and Jessica R.W. Bungay

The imminent legalization of marijuana is causing angst for many employers. Employers are unsure of how the issue can be dealt with in terms of prohibiting use in the workplace and addressing concerns of workplace safety. The recent decision of University of Windsor v Canadian Union of Public Employees, Local 1001, 2017 CanLII 9594 (ON LA) provides some guidance on the appropriate response when an employee is found to have smoked marijuana in the workplace while on duty.

The Facts

Two university custodians, while working the overnight shift, were caught smoking marijuana by a campus police officer in the university's parking lot. Both grievors initially denied that they had been smoking marijuana or that they had marijuana in their possession. One of the grievors eventually admitted to the officer that they had smoked marijuana, but did not specify when or where, and the other grievor eventually handed over a small bag of marijuana to the officer.

The officer reported the incident to the grievors' manager. The grievors were sent home pending an investigation. During the investigation, the grievors continued to deny that they had smoked marijuana on campus. However, the investigation led the employer to conclude that the grievors were untruthful and had in fact smoked marijuana on campus during their shift.

The grievors were terminated following the conclusion of the investigation despite their seventeen years of service and clean disciplinary records. The employer felt that the grievors' possession and consumption of an illegal substance on campus while on duty, their lack of candour at the time of the incident and the safety sensitive nature of their employment were cause for termination. The union grieved the discipline.

Following the termination and on their own accord, the grievors sought help for their drug use.

The Arguments

At the Arbitration hearing, the University argued that termination was the appropriate discipline because both employees worked unsupervised in a safety sensitive environment. The crux of the employer's position was that the grievors' dishonesty post-incident resulted in a complete breakdown of trust in the employment relationship. In light of the unsupervised nature of the work, the employer argued that it could no longer trust the employees to work safely and unimpaired.

The union's position focused on the strong mitigating factors which called for a progressive disciplinary procedure. These mitigating factors included the substantial service of both grievors with the employer and their clean disciplinary history. The union disputed the fact that the custodial work was safety sensitive. The union also argued that the evidence did not support a conclusion that the grievors' had worked unsafely.

The union also argued that the grievors' substance use constituted a disability and that the employer had a duty to accommodate the grievors. One of the grievors identified himself as needing help for his substance use post-termination. The union argued that the fact that he only identified himself as such after termination did not absolve the employer of its duty to accommodate. The other grievor did not identify herself as needing help for her substance use. However, she did attend narcotics anonymous meetings following her termination. The union relied on this fact to argue that the employer was also under a duty to accommodate her.

The Decision

It was undisputed that the grievors' behaviour was inappropriate. The issue to be determined was whether termination was appropriate in the circumstances or whether a lesser penalty should have been imposed.

The Arbitrator found that the grievors had been dishonest during the incident, throughout the investigation and post-termination. He further held that their substance use was unrelated to a disability. The duty to accommodate was therefore not triggered.

The Arbitrator concluded that although there were strong mitigating factors which favoured a lesser penalty (substantial service, clean disciplinary records, good performance, custodial position was not safety sensitive), there were significant aggravating factors which justified the termination, such as the fact that the custodial position was largely unsupervised and required a significant degree of trust. The employer was justified in its loss of trust in the employees. The Arbitrator upheld the termination of both grievors.

What This Means for Employers

The following are some key takeaways to help employers prepare for the legalization of marijuana:

  • Employers have a right to prohibit the use of marijuana in the workplace and to prohibit employees from attending at work while under the influence of marijuana.
  • Where substance use is characterized as a disability, the employer will continue to have an obligation to accommodate the employee's disability.
  • Employers should review and update their current drug and alcohol policies in preparation for the legalization of marijuana. We recommend that you have your policy reviewed by legal counsel.
  • Termination may be warranted in circumstances where an employee attends at work under the influence of drugs or alcohol, brings drugs or alcohol to the workplace or consumes drugs or alcohol in the workplace. However, each situation is dependent on the facts and there may be human rights issues at play that require consideration. You may wish to consult with legal counsel.

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.

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Michèle Brown-Gellert
Jessica R.W. Bungay
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