March 8, 2018

This report is inspired by an article written by Adrian Miedema, of Dentons Canada LLP. Possession Of “Small Amount” Of Marijuana Was Just Cause To Fire Employee Who Had “Not Carefully Checked His Pockets” Before Screening To Board Flight For Offshore Platform  and is based on an recent appeal decision Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII)

In Newfoundland, a unionized millwright who was on-call was called in to shift and was later dismissed on the onshore platform because he had marijuana in his pocket that he “didn’t know was there.”

However, on appeal, the arbitrator’s decision was originally overturned, with the lower court judge having concerns because the individual “did not know the marijuana was there.” According to the lower court judge, the individual did not have the requisite mens rea (or intention) for possession required to violate the policy.

This is in contrast to the strict liability approach adopted by the original arbitrator. The strict liability approach means that mens rea is not engaged and that doing the prohibited act is sufficient to establish noncompliance with the policy.

The appellate court noted that strict liability applies when there’s a public-interest objective of safeguarding society’s welfare or protecting the public.

We note that the work for which the individual was engaged was indeed safety-sensitive. The potential for catastrophic environmental and/or public impacts in the event the individual was derelict in their duties was present.

Had the lower court’s decision been upheld, it would’ve raised significant concerns for employers and rendered the operation of alcohol and drug policy safety protections to a large extent unworkable. Fortunately, the Newfoundland and Labrador Court of Appeal restored the original arbitrator’s decision and upheld the termination.

There is an obligation on the part of employees to take all reasonable action to ensure that they do not breach company policy.

In this circumstance, the failure to check the pockets before reporting for shift did not meet the reasonable person standards to take the next necessary steps to comply with the alcohol and drug policy.

Workforce Delivery Inc. provides front-line supervision and upper management alcohol and drug work policy training. Also, we provide on-the-fly administrative support for live issues that you or your organization may be encountering. For more information, please contact us at the following.

Samuel Kemble

Director,  Labour Relations and Workforce Delivery

(780) 886-1679

www.workforcedelivery.com