An appeals court has ruled against a company that fired an employee for failing a drug test. The judgment by the Newfoundland & Labrador Court of Appeal is the first since Parliament voted to legalize marijuana.
Justice Gale Welsh dismissed an appeal by the Hibernia Platform Employers’ Organization over the firing of Gary Carroll, a longtime helicopter deck hand on a Hibernia rig. Carroll tested positive for banned tranquilizers under a company Drug And Alcohol Policy permitting tests “after a significant incident or a safety incident as determined by management.” The test followed repeated complaints of misplaced luggage aboard choppers that ferried crew from the offshore platform.
Unifor Local 2121 challenged Carroll’s firing as disproportionate, and the drug test as unnecessary. An arbitration board and lower court agreed, ruling misplaced luggage was not so serious a “safety incident” that it justified testing all eight helicopter deck hands on duty. Unifor argued managers conducted so many drug tests after trivial incidents that it “amounted to random drug testing” in breach of a 2013 Supreme Court ruling that tests could only be performed with cause and consent.
“The employer submits that the board’s decision was unreasonable because the interpretation of the Drug And Alcohol Policy resulted in an interference with management’s right to order drug testing,” wrote Justice Welsh. The Court dismissed the company’s appeal.
The Senate by a June 19 vote of 52 to 29 passed into law Bill C-45 An Act Respecting Cannabis. The legislation to take effect October 17 legalizes recreational marijuana, including public possession of up to 30 grams of dried cannabis. Employers’ groups unsuccessfully appealed to Parliament to amend the bill to permit random workplace drug tests.
Derrick Hynes, executive director of Federally Regulated Employers – Transportation & Communications, testified May 2 at the Senate legal and constitutional affairs committee that legal marijuana will pose workplace issues. “We don’t want the courts to sort that out later,” said Hynes. “The time is now.”
“Workers, unions, employers – we all take safety very seriously, and we don’t want to paint a picture that there is a crisis here, that the sky is falling,” said Hynes. “But we do have concerns that drugs and alcohol exist in the workplace, and that legalized marijuana will exacerbate those concerns.”
Union executives said there was no reason to have Parliament overrule the Supreme Court in broadening employers’ power to randomly test for drugs. “The reality is cannabis is still an illegal substance if you are going to work,” Hassan Yussuff, president of the Canadian Labour Congress, said in April 26 committee testimony. “Nothing will change.”
“Despite fear mongering by employers, there is nothing in the legislation that fundamentally changes the legal landscape on random alcohol and drug testing in the workplace,” said Yussuff; “This bill should not be used as an excuse to upset the carefully crafted balance. The labour movement takes issues with workplace health and safety very seriously.”