Brewery worker’s job goes up in smoke after violating last-chance agreement

Moosehead had reinstated alcoholic employee under specific conditions but smoking marijuana wasn’t allowed
|employmentlawtoday.com|Last Updated: 09/03/2010

A New Brunswick brewery had just cause to fire an alcoholic employee who tested positive for marijuana, the New Brunswick Court of Appeal has ruled.

Paul Shanks worked for Moosehead Breweries in Saint John, N.B. His addiction began causing problems with his job and on March 18, 2008, the brewery terminated his employment. However, after Shanks indicated he wanted to rehabilitate, Moosehead reinstated him on July 4.

As part of his reinstatement, Shanks was required to sign a “last-chance” agreement. The agreement stipulated he would be subject to periodic and random drug screening. If any of the tests came back positive, it would be a breach of the agreement and Moosehead would immediately terminate Shanks’ employment.

On Aug. 27, 2008, a drug test was administered and Shanks tested positive for marijuana use. Shanks admitted he had “puffed” a joint six hours before a shift that had been eight days ago. Moosehead considered this a breach of the last-chance agreement and fired him.

Shanks and his union grieved the dismissal, arguing the drug test only proved past use and it didn’t mean he was impaired while on duty. However, the arbitrator found the nature of the test didn’t matter, as the last-chance agreement precluded any use of drugs and alcohol. The arbitrator said Shanks’ reinstatement depended on him completely abstaining, as Shanks had been addicted to alcohol for 13 years and any use at all could be a sign of a relapse.

“Complete sobriety and total abstention from mood altering drugs was critical to (Shanks’) recovery,” said the arbitrator.

The union appealed to the New Brunswick Court of Queen’s Bench and, when that court supported the arbitrator’s decision, the New Brunswick Court of Appeal. However, the appeal court found no reason to alter the decision.

The appeal court found the arbitrator’s decision was reasonable and it made sense for the last-chance agreement to prohibit any drug or alcohol use for a recovering alcoholic.

For more information see:

N.B.U.P.P.E., Local 362 v. Moosehead Breweries Ltd., 2010 CarswellNB 309 (N.B. C.A.)

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