February 28, 2018

Check Your Pockets: Newfoundland Court of Appeal Upholds Termination for Inadvertent Possession of Marijuana at Work

Every day we find tiny treasures in the pockets of our jackets, pants, shirts and dresses. They are reminders of past purchases, and sometimes if we are lucky, they might just buy us our morning coffee fix. Unfortunately, this was not the case when a millwright, who worked on an offshore oil rig, dug into his pocket during security screening, before boarding a helicopter to the rig.
The Newfoundland and Labrador Court of Appeal ruled in favour of the employer when it found that an arbitrator’s application of a strict liability standard to a workplace drug policy was reasonable in Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7.
The Court of Appeal’s decision set aside a prior decision of the Supreme Court of Newfoundland and Labrador and restored the arbitrator’s decision, upholding termination for possession of marijuana in the workplace.
It is widely known that offshore work is highly dangerous and as a result, requires strict policies on the possession and use of drugs or alcohol in the workplace and zero-tolerance is the norm.
In this case, an employee got called into work on the rig. He reported to the helicopter facility where he proceeded through security screening. During the screening, an item was detected in the front left pocket of his jeans. When the pocket was checked, it contained a small piece of tinfoil with a small quantity of marijuana inside. The RCMP were called, but declined to press charges due to the small quantity.
The employee denied knowing that the marijuana was in his pocket. A urine test was then performed which tested positive for marijuana.
In accordance with the employer’s drug and alcohol policy, which prohibited the “use, possession or distribution of an illegal drug, or drug paraphernalia by an employee while on company facility or while performing company business”, the employee underwent a dependency assessment. The dependency assessment revealed that the employee did not have any dependency issues.
The employee was terminated for cause for violating the employer’s drug & alcohol policy for possession of a prohibited substance while on company facility or while performing company business.
The Union grieved the termination. The arbitrator did not accept the employee’s claim that he was not aware of the marijuana inside his pocket, and that he may have used the substance previously and simply forgotten to take it out of his pocket.
The arbitrator applied the concept of strict liability, which imposes liability on a party without the requirement of knowledge or intent, to find that the grievor was in possession of a prohibited substance on company facility or while performing company business, dismissing the grievance and upholding the termination.
The Union brought an application for judicial review of the arbitrator’s decision. In Communications, Energy and Paperworkers Union (UNIFOR, Local 2121) v Terra Nova Employers’ Organization, 2016 NLTD(G) 194.  The Supreme Court of Newfoundland and Labrador, Trial Division determined that the legal test for possession required to establish a violation of the policy on the balance of probabilities did include a mental element.  Justice Burrage found that in order to establish possession, the grievor must have knowledge that he possessed the drug and that the arbitrator’s finding that the grievor was unaware of the possession and had “simply forgotten”, was inconsistent with a finding of possession and violation of the policy because of the lack of the mental element required to establish possession. He therefore found that the arbitrator’s decision was unreasonable, quashed and allowed the grievance.
The employer appealed the decision of the application judge to the Newfoundland and Labrador Court of Appeal. The Court of Appeal determined that Justice Burrage erred in applying the standard of reasonableness to the arbitrator’s decision. The Court of Appeal found that the application judge did not assess the reasonableness of the arbitrator’s approach, which applied the concept of strict liability, wherein a mental element is not engaged. Instead, the application judge substituted his own view that a mental element must be incorporated in order to find a violation of the policy. Ultimately, the Court of Appeal found that the arbitrator’s interpretation and application of the policy fell within a “range of possible, acceptable outcomes which are defensible in respect of facts and law”, and allowed the appeal and restored the arbitrator’s decision to uphold the termination.
This decision confirms that an employer need not establish a mental element when justifying termination for possession of prohibited substances in a safety-sensitive workplace.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.