Refusal to take drug test not just cause for dismissal: Arbitrator

Policy didn't indicate refusal was considered on par with positive test
|Canadian Employment Law Today|Last Updated: 07/29/2013

A Nova Scotia company wrongfully dismissed an employee who refused to take a drug test after a supervisor smelled marijuana on him at work, the Nova Scotia Supreme Court has ruled.

On Dec. 2, 2011, a supervisor for the Halifax Streets Department came over to a city truck with two employees inside. The supervisor claimed he smelled marijuana, but both employees denied there was any smell. The supervisor allowed them to leave, telling them to drive safely.

About an hour later, the two employees were called into a meeting and asked to take a drug test. One employee — the one who had been in the passenger seat — refused, saying he was a recreational user of marijuana and the test would be positive because marijuana stayed in the system for a period of time, making it difficult to determine impairment. The employee was suspended with pay pending further investigation.