Positive urinalysis drug test not grounds for dismissal: Arbitrator

Tests weren't proven to show current impairment
|Canadian Employment Law Today|Last Updated: 06/02/2014

CP Rail did not have just cause to dismiss an engineer who used marijuana two days before he was involved in a train derailment, an arbitrator has ruled.

CP Rail had a drug policy and related procedures for its employees that stipulated using a “prohibited substance” while employed in a “safety critical position” was grounds for termination of employment. The railway employed various post-incident testing to determine if employees involved in a workplace incident had used drugs or alcohol.

On Dec. 17, 2013, there was a train derailment involving a locomotive engineer who had been with CP Rail since 1984. Over his 29 years with the railway, the engineer had no incidents of discipline on his file.

CP Rail followed its normal procedures and sent the engineer for three different tests: breath, oral fluid, and urine.

The tests of his breath and oral fluid came back negative, but his urine test was positive. Because of this positive test, a formal investigation was scheduled for Jan. 31, 2012.

The engineer was interviewed for the investigation and he admitted to using marijuana at a Christmas party two days before the incident. CP Rail accepted this meant the engineer wasn’t impaired when he reported for work two days after using the drug, but it still violated its alcohol and drug policy — which prohibited any use of drugs while in such a position. The engineer’s employment was terminated.

The arbitrator found CP Rail’s policy that a positive drug test was itself grounds for discipline or discharge was “unreasonable and beyond the well accepted standards.”

The purpose of the policy was to prevent workplace impairment but the tests weren’t proven to show current impairment, said the arbitrator.

The arbitrator referred to a similar case in which another CP Rail employee with a positive test had his dismissal rescinded and a 30-day suspension substituted. In that decision, the arbitrator stated the policy had “no basis in science or technology with respect to impairment or the risk of impairment on the job” and didn’t further the railway’s “legitimate business interests.”

CP Rail was ordered to reinstate the engineer with compensation for all wages and benefits lost. The arbitrator noted CP Rail disagreed with the reinstatement and the railway said the arbitrator and the union must “bear the burden of responsibility” for any future incidents that threaten public safety because of drug or alcohol use by the engineer. The arbitrator stated the decision was based on the facts and the law and had nothing to do with what could happen in the future, scolding the railway for trying to “influence the outcome of a grievance in its favour by resorting to veiled threats of legal consequences against the arbitrator.”

See Canadian Pacific Railway and Teamsters Canada Rail Conference (Gardippe), Re, 2014 CarswellNat 929 (Can. Railway Office of Arb. & Dispute Res.).