Management acted 'in good faith in their assessment of the worker and their application of the policy'
A transit provider had reasonable cause to order a drug and alcohol test for a safety-sensitive worker who was found asleep in his vehicle, an Ontario arbitrator has ruled.
The worker was a bus operator for the Toronto Transit Commission (TTC). His position was designated as a safety-sensitive one.
The TTC's Fitness for Duty Policy mandated drug and alcohol testing when supervisors had reasonable grounds to suspect employee impairment while on duty. The policy listed indicators that warranted testing such as erratic behaviour, deteriorating physical appearance, and other signs suggesting drug or alcohol use – although it wasn’t an exhaustive list. Extreme fatigue engaged the policy in determining fitness for duty, but it didn’t require testing.
The policy also required the supervisor overseeing the testing to ensure the employee being tested was given safe escort to their place of residence or the care of another person, so they didn’t operate a vehicle on their own.
“It’s a well-written policy, in part because it sets out examples of indicators that would be used io determine whether a referral for testing was appropriate, and the list of indicators wasn’t exhaustive, leaving open the possibility that other indicators would be taken under consideration - which is always a good practice when drafting policies generally,” says Rich Appiah, principal of Toronto employment and labour law firm Appiah Law.
There was also an Operating Excellence agreement with the union that established penalties for various instances of misconduct. Nesting or taking steps to deliberately go to sleep on the job warranted a 10-day suspension, while dozing off at work received a five-day suspension. In both cases, the employee had to sign a two-year last-chance agreement.
Sleeping at work
On June 19, 2019, several subway stations were closed for repairs, so the TTC deployed shuttle buses along the route. Late in the evening, a supervisor found the worker’s bus parked on a residential street, which was contrary to TTC rules. The vehicle's lights were off, the driver’s seat was reclined, the blind was pulled down over the window, and the worker was sitting in the seat, appearing to be asleep. The supervisor tapped on the window, startling the worker and waking him up.
The supervisor observed that the worker’s uniform was messy and dishevelled, and the worker was sweaty and clammy. He was also yawning and looked like he had the flu. The supervisor had never met the worker before.
The supervisor asked if the worker needed medical assistance, to which the worker replied in the negative. The worker explained that he had been instructed by a manager to wait on a nearby street rather than in the layover area, as it was busy with all the shuttle buses. This didn’t make sense to the supervisor and he told the worker that sleeping was a violation of the Operating Excellence agreement. The worker said that he had dozed off while waiting to resume his shift and that it would never happen again.
The supervisor felt that the worker wasn’t providing straight answers to his questions and he was being evasive. Given the worker’s appearance and behaviour, he believed that the worker wasn’t just tired and something was impairing his judgment.
The supervisor filled out the policy’s reasonable cause testing documentation form and checked off boxes for the indicators of impairment – confused, slow, inability to focus on work, fatigue or exhaustion, deteriorating physical appearance, excessive yawning, and careless performance of job. He didn’t check the boxes for excessive perspiration or lack of motor co-ordination, but he noted that the worker was “groggy and appeared fatigued.” The supervisor then told the worker that he was going to call transit control and begin the procedure for drug and alcohol testing.
As required by the policy, an assistant manager was called to the scene to provide a second opinion. The assistant manager arrived about 20 minutes later and, after speaking to the worker, agreed with the supervisor’s assessment. The worker confirmed that he was medically fit and not on any medication, and he apologized for dozing off.
Drug and alcohol testing
The assistant manager took the worker to a nearby station for testing. The worker participated in a breathalyzer test and provided a saliva sample. The breathalyzer test was negative, so the worker was allowed to drive himself home.
However, the saliva test came back positive for cannabis. The TTC terminated the worker’s employment on July 24 for violating the Fitness for Duty policy.
The union grieved the decision to require drug and alcohol testing, arguing that the worker’s behaviour was indicative of fatigue, not impairment, and that the situation should have been handled under the TTC's Operating Excellence policy, which governed infractions like sleeping on duty. The union also pointed out procedural gaps, including the decision to let the worker drive himself home after testing, contrary to the policy’s supervisor guidelines. As a result, the testing wasn’t allowed under the policy and the results couldn’t be held against the worker, said the union.
In addition, the worker explained that his dishevelled appearance was habitual and he normally reclined his seat while driving his bus.
The TTC argued that the worker’s behaviour and appearance, combined with his parking violation, established sufficient grounds for drug and alcohol testing, while the worker’s explanations were inconsistent and unpersuasive.
Followed fitness for duty policy
The arbitrator found that the supervisor and assistant manager acted within the bounds of the Fitness for Duty Policy, which allowed subjective judgment when assessing reasonable cause for testing. Although the union challenged the credibility of the supervisors’ observations, the arbitrator found their conclusions about potential impairment to be reasonable under the circumstances.
“Reasonable people can disagree on whether the threshold has been met,” said the arbitrator, adding that some deference must be afforded to supervisory judgments, particularly in safety-sensitive environments like the TTC. The arbitrator also noted that the policy required a second opinion before determining reasonable cause, which was followed.
The supervisors’ good-faith observations and conclusions drawn from those observations were the ultimate deciding factors in this case, according to Appiah.
“One of the supervisors confirmed that he had never met the worker, so it's not like this was a case of two managers who had a grudge against the worker or some sort of hidden agenda to persecute him,” he says. “Here we had two people who, at least from the arbitrator’s perspective, appeared to be acting in good faith in their assessment of the worker and their application of the policy.”
The arbitrator acknowledged the TTC's failure to enforce its policy requiring safe transportation home for employees subjected to testing. However, this was a separate issue after the incident that didn’t negate the initial decision to test, the arbitrator said.
“The arbitrator observed that long before the worker arrived at the station [for testing], there was reason to believe that he might have been impaired,” says Appiah. “So the fact that he was allowed to drive home after he was assessed played no role in determining whether or not there was reasonable cause to suggest that he was impaired.”
Reasonable cause for testing
The arbitrator concluded that the TTC had reasonable cause to order the drug and alcohol test, based on the worker’s behaviour and presentation at the time of the incident.
Employers should be mindful that drug testing policies can’t be arbitrarily imposed in workplaces, unionized or not, but the TTC had a good policy in place with union consent, with a template for managers to record their observations in assessing whether there was reasonable cause, says Appiah.
“There are human rights considerations when drafting these types of policies, so employers should always keep that in mind,” he says. “But there was a standard means by which observations could be communicated on a form that made it helpful for managers to complete.”
“In most workplaces - especially when you've got busy workplaces such as the TTC - having those types of templates available to managers makes the recording process a lot easier for them, and provides them with some assistance as to the things that they should be thinking about when recording their observations.”
