In June, an Ontario arbitrator upheld the suspension and dismissal of an Ontario gold mine worker who failed a drug test for cannabis after a serious workplace incident and a return-to-work test.
The employer, Newmont-Goldcorp Canada (NGC), hired the worker in 2007 at its gold mine near Timmins, ON. According to the NGC drug and alcohol policy, drugs and alcohol on the job and reporting for work under the influence of drugs or alcohol are strictly prohibited. In addition, NGC drug and alcohol policy required testing after a “serious or high potential incident,” unless there was immediate evidence that other factors unrelated to the acts of employees were the sole cause. Such incidents were defined as causing a fatality, serious injury, a harmful environmental incident, or serious loss or damage to property, equipment, or vehicles.
According to the policy, NGC employees who tested positive for cannabis use and were permitted to continue their employment would be required to pass another test before returning to work and undergo random testing.
In September 2021, the employee spilled hot coffee on his leg when driving a lubetruck. Subsequently, the lubetruck struck a berm, and the rear end of the truck was damaged. Furthermore, following the incident, it was noted that the employee’s speech was rapid, he was hyperactive and crying, and he was shaking. NGC required the worker to undergo a post-incident drug and alcohol test, who tested positive for THC.
The employee had admitted having consumed cannabis approximately 12 hours before his shift. As a result, he was suspended for 40 hours for violating the drug and alcohol policy and required to enter into a last-chance agreement (LCA) to take a return-to-work test and submit to random testing for one year.
However, the union grieved the policy and the fact that the worker had to submit to post-incident testing, arguing that the company’s interests were not sufficiently balanced with interfering with the employee’s privacy and recreational consumption of cannabis by the drug and alcohol policy.
Moreover, the union also claimed that it wasn’t a serious incident that caused much damage, while NGC stated that repairing the lubetruck cost $60,000.
In November 2021, the employee tested positive for cannabis again on his return-to-work test, stating that he consumed it approximately 24 hours before his scheduled return to work. As a result, NGC terminated his employment for breaching the LCA.
The union grieved the termination, arguing that there is currently no available test to establish whether an individual is functionally impaired from cannabis; furthermore, the policy did not provide any clear guidance as to when employees could use the drug recreationally.
“If you’ve got good policies and you enforce them properly, reasonably, and consistently, we’re not going to argue over the impairment part – or at least it’s not going to be as significant,” he says. “If there’s an accident in the workplace, the employer has to prove that they took all reasonable steps and the policy is the foundational element of the due diligence process,”
Lorenzo Lisi, leader of workplace law group Aird & Berlis
However, the arbitrator noted that a unilateral policy must be consistent with the collective agreement and be reasonable, and referred to the previous decision by the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, which determined that an employer may require drug or alcohol testing with reasonable cause. The Supreme Court also found in Irving that testing individuals with a problem of drug and alcohol abuse could be a legitimate part of continuing employment.
Finally, the arbitrator determined that the worker exercised poor judgement in taking his eyes off the road when his coffee spilled, which led to an accident that resulted in significant financial loss for NGC due to repair costs. Therefore, the arbitrator concluded that the damage to the company equipment was significant and justified testing under the policy.
Importantly, the arbitrator also determined that it was necessary for NGC to exercise “the precautionary principle to ensure the safety of the workplace,” given the safety requirements of the mine and NGC’s obligations under the Ontario Occupational Health and Safety Act (OHSA).
In his interview with HR Reporter, Lorenzo Lisi, the leader of the workplace law group at Aird & Berlis in Toronto, said NGC’s comprehensive and consistent policy set up its successful defence of the grievances and emphasized the importance of vigilance in safety-sensitive industries.