'The presumptive outcome is termination' for safety-sensitive railway workers: lawyer
A long-time railway worker’s positive drug test result following a workplace accident was just cause for dismissal, a federal arbitrator has ruled.
The worker was a railcar mechanic for Canadian Pacific Kansas City railway (CPKC) in Winnipeg, hired in 1987.
On April 1, 2019, the worker returned from a leave of absence. He was operating a trackmobile – mobile equipment that moves railcars – when a railcar derailed. CPKC ordered the worker to submit to a post-incident drug test, which involved an oral fluid test and a urine test. The tests came back positive for levels of cannabis above the cutoff amount stipulated in CPKC’s drug and alcohol policy.
CPKC was required under the collective agreement to conduct an investigation, but before it could do so the worker entered a 60-day residential treatment program for substance abuse, which he completed on June 21. Three days later, CPKC moved forward with an investigation.
During the investigation, the worker explained that the positive drug test was a result of his doctor’s suggestion to self-medicate with liquid cannabis tincture. He said that he had intended to tell his manager about it when he returned from his medical leave on April 1, as he was aware of his safety-sensitive position and the policy requiring him to report it to the company’s occupational health and safety (OHS) division. However, his manager was on vacation and the only option was the supervisor. The worker was uncomfortable discussing personal medical issues with his supervisor because she was female, so he decided to wait until his manager’s return two days later.
Requirement to report cannabis use immediately
The worker also suggested that his doctor gave him a permit – which allowed him to acquire medicinal cannabis - instead of a prescription, which he believed relieved him of the need to report his cannabis use. He said that he would have reported a prescription immediately, as stipulated by the policy. The worker added that he thought CPKC’s drug policy was “convoluted, complicated, and has a lot of grey areas” that made it hard to understand.
The worker said that he didn’t have an addiction, but he might have had one if he hadn’t obtained treatment.
On July 12, CPKC terminated the worker’s employment for violating its alcohol and drug policy and Canadian Railway Operating Rule (CROR) G, which prohibits the use of intoxicants or narcotics while on duty.
The union filed a grievance challenging the dismissal as “overly aggressive,” citing the worker’s 32 years of service and his participation in a rehabilitation program. The union requested reinstatement with conditions, including successful completion of drug and alcohol screening and continued attendance at meetings, while emphasizing that the worker had not intended to conceal his cannabis use from his employer. The union also referred to the Canadian Human Rights Act, arguing for individualized accommodation in cases involving substance abuse treatment.
CPKC maintained that the drug test results justified the worker’s termination, as he had been working in a safety-sensitive position at the time of the incident. The company’s policies, as well as longstanding arbitration precedents, supported dismissal for employees who work while impaired.
The company also referred to three previous instances of disciplinary suspensions against the worker, although the union disputed them because they were unrelated to drug testing and impairment and they had been resolved with the agreement that they were not to be used in any way in future grievances.
No disability
The arbitrator noted that neither the worker nor the union claimed that the worker suffered from a disability, with the worker only saying that he might have developed an addiction if he didn’t go to rehabilitation. Attending such a program after a positive drug test also didn’t demonstrate that the worker suffered from a disability, so there was nothing supporting an argument for accommodation without medical evidence, said the arbitrator.
“Under these circumstances, where you've had an accident and an employee who is working under the influence of drugs to the extent that he tested above the threshold, the presumptive outcome is termination,” says Michael Penner, a labour and employment lawyer with Levitt LLP based in Victoria. “That's not to say that it’s termination in every instance, but that's the starting point and the arbitrator’s looking to the union to move them off of that presumption.”
“What the union failed to do was to say [the worker] actually had a condition that demanded accommodation,” he adds. “Had they gotten to that that point where they established that this guy had a disability that hadn’t been accommodated, either during his employment or in the consideration of the termination of his employment, that would have changed the analysis.”
The arbitrator agreed with CPKC’s position, emphasizing that railway jurisprudence has consistently upheld termination as the appropriate response when safety-sensitive employees are found to be impaired on the job, regardless of disciplinary record.
"The presumptive penalty of dismissal applies to any employee who works while impaired," the arbitrator said, adding that the safety risks posed by the worker’s role within the railyard were "obvious."
Well-established drug policy
An arbitration like this in the railway industry is a little different from other arbitrations in that there’s a long-established, robust, and articulated drug policy that has been scrutinized repeatedly by arbitrators in similar situations, says Penner.
“And not only that, but because we're dealing with such a huge workforce, many of whom are dealing with very high safety environments, the arbitrator has a large body of previous decisions that clearly establishes that if you test positive after an accident, you're done,” he says.
The worker argued that his use of cannabis was related to a medical issue and that he had intended to inform his supervisor about his condition. However, the arbitrator found that the worker’s explanations, including his distinction between a "permit" and a "prescription" for cannabis and his decision to delay informing his employer, undermined his credibility.
The worker’s explanation was not only convoluted, but also self-serving, according to Penner.
“In one breath, he's parsing down the language of the drug policy in a way that favours him by saying he wasn’t prescribed the cannabis, he was permitted to obtain it, and then in his next breath, he's saying, ‘As a layman, I have no comprehension of the minutiae of the policy’ - that alone completely decimated his credibility,” he says. “And then he compounded that by saying he had every intention of telling the employer he was taking drugs, but the person he wanted to talk to wasn't there and the person that was there he didn't want to talk to her.”
“He knew exactly what he was obliged to do when he showed up to work, he chose not to do it, and then tried to use a very arcane argument about the particular wording of the policy,” adds Penner. “It comes across as disingenuous and there's no element of contrition.”
Long service not enough to overturn termination
The arbitrator also rejected the union's argument that the worker’s long service warranted a reduction in the penalty, finding that such service doesn’t “rebut the presumption that dismissal is the appropriate penalty for being impaired when performing a safety-sensitive job."
The arbitrator concluded that the dismissal was justified due to the seriousness of the offence, the lack of candour in the worker’s responses during the investigation, and his disciplinary record. The grievance was dismissed.
“If you’re an enterprise that necessitates a drug and alcohol policy, the more detailed you can be in that policy the better, particularly when it comes to the situations in which testing can occur,” says Penner. “There's a lot of law around that, so it can't be indiscriminate - it has to be appropriate without being unduly invasive and respect the rights of employees.”
“But, like any policy, it must be known, it must be articulated, it must be applied consistently, and the consequences for not following that policy have to be clear before you can apply the penalties.”
See Unifor Local 101R v. Canadian Pacific Kansas City Railway, 2024 CanLII 57556.
