Clear evidence of workplace impairment lacking; no just cause
A federal arbitrator has reinstated a railway worker fired for failing a drug test because the employer was unable to establish any impairment while at work.
The worker was a machine operator for Canadian Pacific Kansas City Railway (CPR), starting in April 2016. He had a clean disciplinary record and his position was a safety-sensitive one, as impairment could cause a significant incident affecting the health and safety of employees, the public, property, and the environment.
On June 2, 2020, the worker was charged with domestic assault after an altercation at home. The next day, police contacted CPR regarding concerns that the worker had used methamphetamine and had been under the drug’s effects while at work.
The information came from an investigating officer who reported that the worker admitted to being under the influence of methamphetamine at work and making suicidal comments. The officer’s superior officer passed on these comments to an inspector, who contacted CPR.
Investigation into potential workplace impairment
CPR launched an investigation and interviewed the worker, who denied admitting that he had ever been under the influence of methamphetamine at work or making suicidal comments. He said that he had never used the drug while on duty and hadn’t used it for five years.
CPR asked if the worker would take a drug test, to which he agreed. An oral swab test came back negative, but a urine test was positive, so CPR commenced a second investigation.
During the second investigation on July 28, the worker admitted to using methamphetamine a week before the drug test as he had not been aware of any upcoming duty – he hadn’t worked since the domestic assault charges had been laid – and he didn’t know he would be coming into the office for the statement.
On Aug. 28, CPR dismissed the worker for conduct unbecoming from the assault charges. He was also dismissed the same day for the positive drug test, which violated the company’s alcohol and drug policy.
No just cause: union
The conduct unbecoming dismissal was reduced by an arbitrator to a suspension. The union also grieved the dismissal for the positive drug test, arguing that the positive test alone wasn’t just cause. The worker categorically denied being impaired at work and the testing was done one-and-a-half months after he last worked, said the union, arguing that clear and cogent evidence was required for a dismissal.
The arbitrator noted that a positive urine test on its own doesn’t demonstrate impairment at work, as it can’t establish impairment at a specific point in time when the worker is working. However, a positive test can be used in conjunction with other evidence as showing impairment, the arbitrator said.
The arbitrator found that the police report that the worker admitted to being impaired at work was “multiple hearsay,” as CPR received the information third-hand, not directly from the investigating officer. In addition, the worker flatly denied making such an admission at the time and said he had used drugs prior to the July 16 investigation and test, when he hadn’t been working, said the arbitrator.
The arbitrator found that the worker wasn’t on duty when he was tested or during the two investigations, and there was no evidence of impairment before the domestic assault incident when he had been on duty. As a result, the arbitrator determined that CPR was unable to establish that the worker was impaired while at work.
No evidence of impairment at work
Without evidence of impairment at work, there were no grounds for discipline as off-duty drug use was not a basis for discipline, the arbitrator said. CPR was ordered to reinstate the worker to his position without loss of seniority and compensation from the end of his suspension for conduct unbecoming.
The arbitrator noted that methamphetamine use is dangerous and illegal, but the worker was candid during the investigations and volunteered to be drug tested when he wasn’t required to. CPR pushed for random testing for the worker, but the arbitrator found that without evidence of proven impairment at work, he had no jurisdiction to order random testing as a condition of a return to work.
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Vandrunen), Re (Feb. 20, 2024), Docket 4891 (CROADR).
