Intention irrelevant in breach of drug and alcohol policy

A Newfoundland and Labrador Court of Appeal has reached its decision in the case of Terra Nova Employers’ Organization versus Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7.

The grievor had been employed as an on-call millwright by Magna Services Limited and based at the Terra Nova offshore petroleum production platform, but was terminated for carrying a small amount of marijuana during a pre-boarding helicopter screening for transport to the offshore site. The employer held that this was in non-compliance with its Drug and Alcohol Policy.

The Policy strictly prohibits employee possession of illegal substances, including cannabis. According to the Policy, when employees are found to be in possession of an illegal substance and found to have violated the Policy, disciplinary action is applied.

In the case of Terra Nova Employers’ Organization versus Communications, Energy and Paperworkers Union, the employee found in possession of marijuana did not dispute the accusation, but claimed that he was unaware as to how the cannabis got into his pocket. As a result of the investigation into the incident, the employee was removed from Magna Services’ on call lists, and was not offered further employment with the company.

At arbitration, the disciplinary action was accepted by the arbitrator because the employee was unable to support his claim of innocence by offering any alternative explanation as to how the drug was found in his clothing; when the case was reviewed by the Supreme Court of Newfoundland and Labrador, Trial Division, the arbitrator’s mens rea argument was not upheld.

The Court of Appeal recognized that the company’s policy allowed for disciplinary action and that the arbitrator used strict liability to claim that acting in a way that is prohibited is enough to establish policy non-compliance. This leaves the responsibility of proving that all reasonable care was taken to ensure compliance with the policy on the shoulders of the employee, in which case mens rea, or intention, cannot be claimed.

Thus, the Court of Appeal did not rule in regards to the arbitrator’s approach to the case, but that the applications judge had made a mistake by using mens rea in the first place in its assessment of the arbitrator’s ruling.

The Court of Appeal agreed with the arbitrator’s decision that the employee had not taken all reasonable care to make sure that he did not possess cannabis, and did not meet the reasonable standard of having done so. As a result, the Court of Appeal upheld the decision of the arbitrator and confirmed the disciplinary action.

Mens rea is not relevant in breaches of Drug and Alcohol Policies, and each circumstance must be assessed individually and on the basis of strict liability to avoid a breach. In Terra Nova Employers’ Organization versus Communications, Energy and Paperworkers Union, in order to avoid disciplinary action, the employee had to have shown that he made a reasonable effort to prevent a breach of the company’s policy. In similar circumstances involving a reasonable person, it is expected that such effort would be made.

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