On January 3rd, Newfoundland and Labrador Supreme Court Justice Rosalie McGrath upheld an arbitration decision to reinstate an employee who was fired after failing a drug test when a series of manifest errors occurred at the Hibernia offshore platform. The court agreed that the drug test should not have occurred, as there was no established link between the errors and the employee who was tested, and cited an insufficient investigation that did not include interviewing other employees or evaluating any other potential causes for the errors.
Gary Carroll, a helicopter landing officer with Hibernia in January of 2015, tested positive for benzodiazepines including temazepam, oxazepam, nordiazepam and lorazepam, substances only available through prescription, for which Carroll had none. As part of his employment, he was responsible for organizing operations on the platform heli-deck, including landing as well as loading and unloading passengers and baggage. He was also responsible for maintaining the helicopter’s manifest.
As concluded by the arbitration board, “Manifest errors are potentially serious issues, because the helicopter pilot makes operational calculations based on the actual weight recorded on the manifest. An accurate manifest is required under Canadian aviation regulations. The C-NLOPB (Canada-Newfoundland and Labrador Offshore Petroleum Board) guidelines state that improper loading of a helicopter is described as a ‘near miss’ and is required to be reported to the C-NLOPB via the written notification process.”
The Hibernia Platform Employers’ Organization had applied to have the May 2016 arbitration decision overturned and was opposed by Carroll’s union, the Communications, Energy and Paperworkers Union of Canada, Local 2121.
As per regulations, all four helicopter manifest errors that occurred in December 2014 and January 2015 were reported to the C-NLOPB. The offshore installation manager also conducted a safety meeting with the heli-deck crew on Jan. 11, 2015, and established additional processes for the sake of prevention.
Management determined the fourth incident, on January 13th, to be a “safety incident” that required post-incident drug and alcohol testing.
The statement of facts reads: “The offshore installation manager directed the heli-deck crew to undergo post-incident testing for drugs and alcohol … The heli-deck crew was comprised of Gary Carroll, six deck hands, and one non-unionized supervisor. All eight employees took the test.”
After Carroll was assessed for dependency and then cleared, he was allowed to resume his position with Hibernia; however, on March 30th, Carroll’s employment was terminated by the company in a written statement.
Under union accusations that Carroll was unjustly fired, the arbitration board investigated whether or not Carroll’s actions defied Hibernia’s collective agreement’s alcohol and drug policy, and concluded that “There were reasonable explanations for the Jan. 13, 2015 manifest discrepancy without the need to conduct alcohol and drug testing as a reasonable line of inquiry … The board concludes that the alcohol and drug test of (Carroll) was ordered without consideration of the explanation that errors in process had not been corrected, without an explanation from (Carroll), and without sufficient reason to link (Carroll’s) actions to the incident. It was not appropriate to order the test in the exercise of managerial discretion. Therefore, the test did not comply with Section 5.0 (2) of the Alcohol and Drug Policy, based on the language of the policy and the requirements of the arbitral authorities.”
The arbitration board also found that Hibernia was required, and failed, to ask the involved employees for an explanation of the incident after it occurred. “There were only eight employees who were tested,” McGrath stated, noting the arbitration’s findings,“It would not have caused a significant delay to ask questions of such a small number of persons.”
As a result, McGrath dismissed the application, and the decision made by the arbitration board remains.
