Carelessness causing accident not reason for dismissal, but rude and intimidating behaviour during drug testing along with attempt to skew results was
An Alberta employer had just cause to dismiss an employee who admitted to tampering with his drug and alcohol test following an accident in the workplace, an arbitrator has ruled.
Kirt Tiessen, 28, was a labourer for Finning Canada, a supplier of industrial heavy machinery based in Edmonton. Tiessen operated forklifts and loaders at Finning’s branch in Fort McMurray, Alta., starting in 2008. Like all Finning employees, Tiessen received extensive safety training and orientation.
On Sept. 15, 2010, Tiessen was instructed to move a heavy toolbox with a forklift. While he was doing so, the toolbox shifted and crashed to the floor. Tiessen immediately shut off the forklift and reported the incident to his supervisor, as per company policy. The toolbox had to be replaced at a cost of almost $5,000.
Finning determined that the incident was the result of Tiessen not properly securing the toolbox, not moving the forklift properly and failing to do a proper job hazard analysis before proceeding, which is required under company policy.
Finning’s drug and alcohol policy stipulated that after an incident, Finning could request an employee take a drug and alcohol test if there were reasonable grounds to suspect the employee had consumed alcohol. Tiessen was asked to take a test that day, but he refused, saying he had dinner plans and they couldn’t keep him past his shift. When management told him there would be consequences for not taking the test, Tiessen became agitated and was swearing before leaving for home.
The next day, Tiessen said he would take a test because Finning was forcing him to, though Finning said it was his choice whether he wanted to follow the rules or not. Tiessen’s first test came back diluted — caused by Tiessen drinking a large amount of water before the test — so he was asked to stay for another one. Tiessen became angry, used profanities with the lab staff and insisted his human rights were being violated by making him wait. He continued to act aggressive and rude, such as playing his iPod at maximum volume without earphones in the waiting room. Tiessen eventually left without taking a second test and Finning marked it as a refusal.
The following day, Sept. 17, Tiessen was asked to take more tests. He showed up late to the lab and continued with his rude behaviour, including wearing a vulgar shirt and using bad language, which intimidated the female lab staff. The samples were also diluted but one was able to detect THC, a chemical in marijuana, so it was sent for further testing.
On Sept. 27, Finning terminated Tiessen’s employment for violating its drug and alcohol policy and violating its code of conduct with his bad behaviour at the testing lab.
The arbitrator found the accident in the workplace was the result of Tiessen’s carelessness, which could have endangered the safety of himself and other employees, and caused damage to Finning property. This carelessness was reasonable grounds for Finning to investigate and request a drug and alcohol test, said the arbitrator. However, on its own, it warranted discipline less than dismissal.
However, the arbitrator found Tiessen’s “protracted, premeditated, offensive course of conduct” over the three days of testing at the lab created a poor impression of Finning and “destroyed the trust and respect which is essential in an employment relationship.” In addition, Tiessen admitted he purposely sabotaged his urine samples by drinking excessive amounts of water before the tests, which further hurt the company's trust in him, particularly since he was a relatively short-term employee.
The arbitrator upheld Tiessen’s dismissal.
For more information see:
•Finning (Canada) v. I.A.M. & A.W., Local 99, 2012 CarswellAlta 412 (Alta. Arb. Bd.)
