[1997] OLRB REP. JULY/AUGUST 680
2399-96-G Ontario Allied Construction Trades Council and Labourers' International Union of North America, Local 506, Applicant V. Ontario Hydro and The Electrical Power Systems Construction Association, Responding Parties
BEFORE: R. O. MacDowell, Chair.
APPEARANCES: John Moszynski and Bob Maskey for the applicant; M. Patrick Moran. Barry Roberts and John Douglas for the responding parties.
DECISION OF THE BOARD; August 8, 1997
INTRODUCTION: WHAT THIS CASE IS ABOUT - IN BRIEF
This is an arbitration proceeding under section 133 of the Labour Relations Act, which arises from the grievance of employee "N" ("the grievor"). "N" contends that, on October 2, 1996, he was discharged by Ontario Rydro without just cause.
At the time of his discharge, "N" had been working as a labourer at the Pickering Nuclear Generating Station, for about 2½ years. During that 2½ years, there was no complaint about the quality of the grievor's work.
Rydro asserts that on October 2, 1996, the grievor was found in possession of marijuana; and that, in addition, the evidence before the Board establishes that the grievor has smoked marijuana on a number of occasions while at work. In Hydro's submission, this behaviour provides 'just cause" for the grievor's discharge.
Rydro submits that a nuclear facility is an extremely sensitive work environment, where it is appropriate to enforce a policy of "zero tolerance": that is, employees found in possession of drugs or alcohol should be subject to immediate discharge. Consumption of alcohol or drugs is an even more dangerous dereliction of duty. Rydro asserts that strict enforcement of these rules is essential in order to ensure the safety of employees and the general public.
Hydro points out that safety is a critical concern in this industry, which is closely scrutinized by the Atomic Energy Control Board and the public. At this kind of workplace, drugs or alcohol would -not only raise a safety hazard, but would also prejudice the image and viability of the business. Safety and commercial interests are intertwined; moreover, at the time of the grievor's discharge, the facility was undergoing a licencing review in which questions had been raised about the adequacy of the company's efforts to control drug and alcohol use on its premises. The grievor's misconduct occurred at an especially sensitive time.
The union replies that Rydro discovered the marijuana in the grievor's possession and secured some damaging admissions from him, in a manner that violated the grievor's rights under the Canadian Charter of Rights and Freedoms. The union asserts that, because of this "Charter breach", none of this evidence can be relied upon to support the grievor's discharge. In the union's submission, the fact that the grievor did in fact smoke marijuana at work is irrelevant in the face of the violation of the grievor's Charter rights. The union asserts that the grievor should be reinstated to his former job with full compensation for any wages lost.
In the alternative, the union asserts that the grievor's actual drug use at work (i.e. as opposed to drug use on his own time), was confined to a relatively short period of time (a few weeks) when he was experiencing personal problems at home. In the union's submission, this situation should be regarded as an isolated period in an otherwise unblemished work history. Whatever the grievor may have been doing on his own time, his behaviour on the job has generally been satisfactory.
The union further asserts that the grievor's drug use was rooted in a "drug dependency" that should be treated as a "disease” or "disability" that requires accommodation, rather than as a basis for discipline or discharge. According to the union, the grievor has successfully come to grips with his disability since the date of his discharge, so that there is now no risk associated with reinstating him to his former job.
In the union's submission, the situation either does not call for a disciplinary response at all, or calls for a lesser penalty than discharge. The union urges the Board to reinstate the grievor in his former position - perhaps with conditions requiring the grievor to pursue treatment for drug dependency, if the Board concludes that such condition caused or contributed to the events giving rise to his discharge.
CREDIBILITY
The hearing in this matter consumed several days, during which the Board heard from a number of employer witnesses, as well as from the grievor himself. Much of the background was not in dispute. However, the grievor and the employer witnesses had somewhat different recollections of what was said and done on October 2, 1996, when the grievor was found with marijuana in his possession; so it is necessary to choose between these competing versions of events. The witnesses' credibility is squarely in issue.
In choosing what version to accept (in whole or in part) I have taken into account such factors as: the demeanour of the witnesses when giving their evidence; the clarity, consistency, and overall plausibility of that testimony when subjected to the test of cross-examination; the ability of the various witnesses to resist the tug of self-interest or self-justification when framing their answers or confronted with "troublesome facts"; and what seems most probable in all the circumstances. I have also taken into account the fact that the employer witnesses were excluded from the hearing room before giving their evidence, while the grievor was in the hearing room throughout the entire proceeding; moreover, while all of the witnesses were testifying about events that occurred some months ago, the three security officers made careful contemporaneous notes, which they used to refresh their recollections. Finally, I have taken into account the fact that the grievor was smoking marijuana during the morning of October 2nd, so that when he was confronted, around lunchtime, he may still have been impaired to some extent. In the circumstances, one might not expect a crystal clear memory of events.
With these factors in mind, I am satisfied that I should prefer the evidence of the employer's witnesses, wherever there is a material conflict with that of the grievor.
For completeness, I should note that although the grievor opted to testify on his own behalf, he did so under the protection of the Ontario Evidence Act and the Canada Evidence Act, so that his answers could not be used against him in later proceedings.
BACKGROUND: THE WORK SETTING
Ontario Rydro operates a number of nuclear generating stations, one of which is located at Pickering, Ontario. At the Pickering facility, Rydro employs more than 2,000 operating personnel, as well as several hundred construction workers.
The level of construction activity at Pickering - and thus the construction labour force -fluctuates from year to year in accordance with the need for repair or renovation of the operating system. These construction employees are represented by trade unions and are covered by a collective agreement. Construction labourers are represented by Local 506 of the Labourers' International Union, which, in turn, is a member of the Ontario Allied Construction Trades Council, that bargains with Ontario Rydro.
The grievor is a construction labourer who has worked at the Pickering site, sporadically, for a number of years. His most recent period of employment commenced in April 1994.
At the time of hire (or rehire), every construction employee undergoes a training and orientation session, to acquaint the new employee with local work rules - including safety requirements. Each new employee is provided with an information package from the manager of his division. The new employee "signs off' on this package to confirm that he has received it.
The material received by the grievor on rehire contains the following paragraph:
Possession and/or Use of Alcohol ID rugs
The possession, consumption of use of alcohol or illegal drugs on Ontario Hydro property is prohibited. The Corporate Policy is that “anyone found in possession or using alcohol or illegal drugs on Ontario Hydro property will be subject to immediate termination of employment".
Suspected possession of, or trafficking in illegal drugs, both on or off site, will not be tolerated and shall be referred through Security to appropriate law enforcement agencies. We believe that it is in everyone's interest, for reason of safety, that this policy be maintained and strictly enforced.
Safety
On any construction site, there are numerous rules and regulations which must be obeyed to enhance the safety of all. These rules will be explained to you in a safety indoctrination for new employees session. Your foreman/general foreman is also available to assist you if you have any questions about safety - be sure to ask first and work safely at all times. Employees who work in an unsafe manner may be subject to discipline.
(emphasis added)
The grievor signed the orientation package on April 5, 1994.
The grievor testified that he could not remember reading these rules, that he did not know that there was a rule against drugs and alcohol in the workplace, and that he "hadn't really thought about" whether the company condoned the use of drugs or alcohol at work. The grievor said that he was confused, and that he did not really appreciate how seriously the company viewed the issue. On the other hand, the grievor conceded in cross-examination that he had worked in the construction industry for many years, and he had never encountered an employer who condoned drug use on a work site.
I am satisfied therefore, that the grievor was well aware that it was wrong for him to possess or use drugs at the nuclear facility, and that if he were caught, his job would be "on the line". The company's "zero tolerance policy" is well-known and quite clear. To repeat, it provides that:
"Termination will occur on a first offence in cases [of] possession, sale, or consumption of alcohol or drugs on Ontario Hydro property."
- Immediately after the grievor's discharge, the company issued a memorandum to all staff, concerning the use of drugs or alcohol at work. That memorandum was co-signed by all of the trade union groups representing employees on the site. It reads as follows:
Subject: Drug and Alcohol Use On-Site
There have been two recent events at Pickering involving evidence of drug and alcohol use on-site. In one event, an empty liquor bottle and used, home-made "hash" pipes were found. The other event involved empty beer cans found on Pickering "A" 339' elevation.
These events constitute violation of Ontario Hydro Safety rules and federal laws and must be reported to regulatory authorities. Given current concerns about the quality of our work and our operating license application, it is particularly troubling to the public, the regulators and to us as employees to hear that we could have people involved in the operation of this nuclear power plant who are perhaps less than fully alert due to use of these substances. These events are completely unacceptable and must be stopped immediately.
Management will be making a number of changes to prevent recurrence of these events. These will include tightened access into the operating island. Although management is ultimately accountable for correcting this problem, it is every employee's obligation to report illegal behaviour. To that end, it is requested that you report any illegal activity to your supervisor, employee representative and/or Security.
If you have a substance abuse problem, then you should seek help through the Employee Assistance Program. If you do not do so and are caught using alcohol or illegal drugs on-site, you will be subject to disciplinary action which could include immediate termination.
(emphasis added)
This memo does not constitute complete union endorsement of the "automatic discharge feature" of the company's "zero tolerance policy". Nor does the memo have contractual force. Nevertheless, there can be no doubt that unions and management have the same attitude to drugs and alcohol in the workplace: there shouldn't be any.
Accordingly, to the extent that the 'just cause standard" depends upon local norms and expectations, there is no doubt that this memo supports the employer's policy of zero tolerance. The collective bargaining parties have confirmed that drug use at work is a serious offence which exposes the user to "immediate termination".
Nor is it difficult to understand why, on this subject, the unions and the employer are in substantial agreement.
The operation of a nuclear generating facility poses a unique range of risks, which can only be avoided if all personnel scrupulously adhere to safe work practices. In fact, it is precisely because minor errors can lead to serious consequences, that a nuclear facility is subject to rigorous inspection by the federal regulatory authorities, and is exposed to a high degree of scrutiny by a concerned public. It is in everyone's interests to minimize these risks.
In the fall of 1996, the Pickering facility was undergoing a licensing review, and had received a number of critical comments from advocacy groups - both in public hearings and in the local press. Among those criticisms was an attack on the company's alleged inability to control drug and alcohol use by its employees. And as the memo acknowledges, there was some basis for this concern, because evidence of drug/alcohol use had been found, even though the users had not been identified. So the incident with the grievor occurred at a time when the company was particularly (and legitimately) sensitive to this issue.
It is not disputed that the grievor's job required a degree of perception, alertness and judgement, or that the performance of his ordinary functions would be fraught with danger if his faculties were impaired. Pickering is an operating nuclear generating facility as well as an ongoing construction site, where one can expect to encounter moving machinery and equipment that has to be handled carefully. There are bulky cylinders containing inflammable gases (acetylene, propane) which have to be properly connected, secured, or moved about - often at great heights. Tools and materials have to be hoisted from one level to another. Employees have to negotiate elevated catwalks and stairways, or work in confined spaces. Instruments have to be handled prudently, working with others in a co-ordinated effort. And so on.
However, this is not just an ordinary construction site with an industrial facility close by. In addition to the "ordinary hazards" which might be encountered on any construction project, this is an operating nuclear facility, with hazards unique to this environment - including the potential release of radiation. And, quite apart from any safety problems that could be triggered by damage to the company's operating system, there would be significant commercial consequences if a reactor had to be shut down to deal with a local accident or to effect repairs. Mishaps are costly from both a safety and economic perspective.
There is no doubt therefore that impaired judgement could have serious consequences for an employee and his fellow workers; or that an accident could have devastating ramifications in a nuclear environment, where the company makes prodigious efforts to minimize radiation hazards. That is why the company, the trade unions, the regulatory agency, and public critics all agree that there must be strict adherence to the safety regimen, if these risks are to be minimized.
In summary, there are personal, public, and commercial interests at play in this setting, and they all point in the same direction. They suggest that a "zero tolerance policy" makes sense. This is not a "moral" or "societal" condemnation of drug use - as perhaps animates the federal drug laws. Rather, it is a reflection of the employer's obligation to provide a safe workplace, and the employees' obligation (to himself and his co-workers) to work safely.
THE EVENTS OF OCTOBER 2, 1996
On the morning of October 2, 1996, an operating employee ("the informant") came to see Lloyd Tryon, a security supervisor. The informant complained about what he described as a serious safety violation: he said that a construction worker was using a remote area of the power house, called the "valve room", to sleep and smoke marijuana. The informant wanted it stopped.
The informant explained that he was familiar with the odour of marijuana, and that there was no doubt in his mind that the construction worker had been smoking marijuana on a number of occasions over the past two weeks. The informant said that every time that he was in the area of the "valve room" (2-4 times per shift), he would observe the construction worker sleeping, or apparently asleep, and on several occasions the odour of burnt marijuana was still in the air. The informant demanded action - although he said that he did not want to be identified as the one who had lodged a complaint.
It was agreed that Tryon and two other security personnel would meet the informant, at noon, in the area of the alleged incidents, so that the informant could show them where the drug smoking was going on. Since the "culprit" was expected to be at lunch during this period, the security guards anticipated that they would have a free hand to investigate.
As agreed, at about 12:00 p.m., Lloyd Tryon, Jim Beatty, and Tom Brady met the informant in the vicinity of unit #8 where the valve room was located. The three guards then climbed up several flights of stairs, and made their way to a small room at the "317 foot level", where the informant said the construction worker had been sleeping and smoking marijuana.
This is not a regular work area. It can only be reached by ladder, or by going up a number of steel staircases to the roof, then across a catwalk to the door leading into the valve room. It is an isolated spot where there are no employees stationed. There is no reason for a construction worker to be there.
When Tryon, Brady and Beatty reached the valve room, they observed a sheet of plywood fashioned into a make-shift bed, complete with a bag of white cotton gloves for a pillow. At various places on the cement floor they observed what they believed to be signs of marijuana smoking. In his notes, Tryon recorded that he saw: "tiny portions of marijuana plant, seed and paper, burnt and ground into the floor". The other two guards testified that they saw matches, ash, and what they took to be a "roach" - that is, the remains of a marijuana cigarette that were much smaller than a normal cigarette butt. However, after a brief inspection, the guards left the area undisturbed, and resolved to come back after lunch when, (according to the informant), the construction worker was expected to return to his hiding place.
Tryon directed Beatty and Brady to return to the area about 1:30 p.m. Tryon told the two guards that if there was no marijuana smoke in the air, they were to approach the employee and make a note of what was said and what they saw. The guards were also instructed to take careful note of any attempt to hide or destroy evidence. But they were not to search the employee unless he was "caught in the act", nor were they to detain or arrest him. They were to report to Rydro Security and members of management, using the telephone located in the valve room.
Beatty and Brady did as they were instructed. They returned to the valve room about 1:30 p.m. and found "N", lying on the plywood bed with his hands on his chest, apparently holding something. There was no marijuana smoke in the air, but according to the two guards, the grievor was acting suspiciously.
The grievor was surprised, of course, by the guards' sudden appearance. According to the guards, he hastily moved to conceal something that he had in his hands, then appeared to slip something surreptitiously into the side pocket of his coveralls. Thereafter, he kept one hand in this pocket for the entire period that the guards were in the vicinity - not only while he was answering questions in the valve room, but also while he was descending the steel stairs to ground level.
The guards thought it curious that the grievor would walk across the roof, over an elevated catwalk, then down a steep steel staircase, without holding on to the handrails. They were also worried that he seemed to be edging towards an open grate, where contraband material might be disposed of irretrievably. Brady took up a position over the grate, and both guards watched the grievor quite carefully.
The two guards reported their initial observations from the telephone in the valve room, and arranged to meet Lloyd Tryon at ground level. They told the grievor that they were taking him to see a supervisor.
The grievor protested that he had not done anything wrong. The grievor said that employees often took unauthorized breaks in remote areas where they would not be seen. The grievor said that he had no direct supervisor. Re said that he was "on call", and carried a pager so that he could be reached by anyone who wanted him.
In the course of these events, the two guards carefully followed the instructions that they had been given. They made no effort to "arrest" or "detain" the grievor, nor did they make any effort to search him. They merely told the grievor that he had been found in an unauthorized area, and that they were all going to have to discuss the situation with a supervisor. They guards did not mention the possession or use of marijuana.
The grievor made no effort to leave; but, of course, that is not surprising. The grievor was not an ordinary citizen in a public place. Re was an employee, at work, on the company's premises. He had been found idle in an unusual place. Re was being confronted by a representative of management, and told that he would have to explain the situation to another representative of management. In the circumstances, one would not expect an employee to refuse to accompany the security guards, let alone flee the scene.
Shortly after the grievor and the two guards reached ground level, Lloyd Tryon arrived and identified himself as the "security supervisor". There was then a short interchange about the grievor's sleeping on the job. As before, the grievor maintained that his job took him to all parts of the plant, that there was nothing unusual about "resting" when he was not busy, and that he could be reached by pager if he were needed. The grievor protested that he had done nothing wrong.
After a brief discussion along these lines, Tryon told the grievor that he was not really concerned about whether the grievor was sleeping on the job. The problem was much more serious than that. Tryon told the grievor that he had been under close surveillance for some time, and that it was well known that he was routinely using the valve room to smoke marijuana (i.e. Tryon put to the grievor what the informant had reported to Tryon earlier that day). At this, the grievor replied, "Look, can we talk about this? I only smoke it for my own use. I don't sell or anything".
Tryon then asked if the grievor was currently in possession of any drugs. The grievor replied, "If you've got surveillance, then you already know". The grievor then reached into his coveralls and produced a blue change purse from the pocket that had earlier been the focus of the guard's suspicion. The change purse contained a small amount of marijuana.
The grievor testified that he had brought a quantity of marijuana to work earlier that day, but because he had smoked some of it before lunch, he was not sure whether there was any left when Tryon asked him for it. The grievor testified that, at the time, he didn't really know whether he was "in possession" of marijuana.
In this regard, it is interesting to note that it is not so easy to smuggle contraband into this particular workplace. In order to prevent the transfer of contaminants, employees reporting for work must discard all of their street clothing, put their personal effects in a locker, cross a room naked, then get dressed again in work clothes prescribed by the company. Personal items must be carried from one area to another in a small plastic bag. That is how the grievor brought marijuana into the workplace.
5 I. Since the grievor did not stow his drug supply in his locker, the only reasonable inference is that he brought this material to work in the expectation that he would be smoking it there. And that was the grievor's evidence at the hearing. The grievor testified that he had smoked marijuana earlier that day - indeed, that he had been regularly smoking marijuana every day since the late summer of 1996.
The grievor testified that although he does not drink, he has smoked marijuana - occasionally and recreationally - for many years. He said that, for the most part, it has not been a problem. He said that he began to smoke more frequently for a period in 1990 after a car accident (not drug related), and that this prompted him to approach a psychiatrist for assistance. That psychiatrist prescribed a regimen of counselling and medication, but the grievor abandoned the effort after a few weeks. Nevertheless, the grievor said that he had encountered no further difficulties with marijuana over the next few years. The grievor testified that he continued to smoke the drug, from time to time, but it had no real impact on his daily activities.
The grievor testified that, until relatively recently, he never smoked marijuana during working hours. That behaviour did not begin until the summer of 1996, when the grievor was under a lot of personal pressure. The grievor testified that in the summer of 1996, his mother was terminally ill, and his wife was about to deliver their first child.
1 should note that when the grievor was confronted by security personnel on October 2, 1996, he did not reveal that he had been smoking marijuana regularly at work. Re did admit to Tryon that he smoked marijuana outside the workplace, and explained that he did so because he had personal problems. The grievor said, "I don't want to lose my job. Can't we talk about this? Can't you give me a break?" Tryon replied that there was nothing to talk about, and that, no doubt, the grievor would lose his job, because the company's policy prohibited drugs or alcohol on the work site.
Tryon then told the grievor that he was "under arrest", that he was going to be searched to see if there were any other drugs. Tryon advised that, thereafter, he would be taken to see the construction supervisor and other members of management. In response to the grievor's inquiry about the word "arrest", Tryon explained that he was a "special constable" who was entitled to make an arrest.
Tryon told the grievor that he had no intention of involving the police, and that, from his perspective, the matter should be handled as an internal disciplinary matter. Tryon said that the grievor would lose his job. However, Tryon added that it was really up to Ontario Rydro to decide whether to involve the local police, and because it was possible that the police might be involved, Tryon told the grievor that he was not obliged to say anything further.
However, Tryon did not give the grievor this "caution" earlier in the piece, nor did Tryon advise the grievor that he could or should speak to a lawyer.
Tryon then proceeded to search the grievor. No further drugs were found.
I might note that in the course of his evidence before this Board, the grievor insisted that it was Tryon's search that discovered the illegal drugs. The grievor maintained that he did not produce the blue change purse on his own, or in response to questioning.
However, all three guards dispute this scenario, and I prefer their evidence on this point. I am satisfied that the grievor did produce the blue change purse when he was confronted by Tryon, accused of smoking marijuana on the job, and told that he (the grievor) had been under close surveillance for some time.
This reference to "surveillance" was, of course, untrue. There had been no surveillance at all. Tryon merely put to the grievor what he had learned from the informant. On the other hand, there is also no doubt that the informant's observations were quite accurate; so it is not surprising that the grievor responded the way he did. The grievor knew that the accusation was true: he had been smoking marijuana, on a regular basis, at work.
In any event, I am satisfied that the search was conducted only after the grievor had produced the marijuana and had admitted that he was a regular user.
Shortly after this interchange with the security staff, there was a brief meeting in the office of John Douglas, the supervisor of construction engineering. Douglas was joined by Phil Scofield, the general foreman. The grievor was accompanied by the chief union steward, who spoke to the grievor briefly before the meeting started.
Douglas reviewed the facts as he understood them, and indicated that Rydro's drug policy called for immediate termination if someone was found in possession of drugs. The grievor replied that he had a lot of personal problems, and that he had tried to give up smoking marijuana but had been unable to do so. The grievor asked if there was any alternative to discharge. Douglas responded that the company had an Employee Assistance Program (EAP) that (inter alia) addressed employee drug dependency; but that employees were expected to approach the EAP on their own, before there were problems in the workplace.
Douglas told the grievor that, from the company's perspective, the grievor had engaged in serious misconduct for which there was an established policy and a prescribed response. In the company's view, it was too late to engage the EAP.
Douglas testified that he discharged the grievor in accordance with the company's "zero tolerance" policy, because in his view, he had no alternative. The policy was clear, it did not contemplate any exceptions, and the grievor had been found with marijuana on his person. The prescribed penalty was discharge, and that is what Douglas considered appropriate.
It is not clear whether the grievor was aware of the EAP prior to his discharge. The EAP is well publicized in the workplace, but, according to the grievor, he did not pay much attention to notices or posters on the employee bulletin boards.
EVENTS FOLLOWING THE GRIEVOR'S DISCHARGE
The grievor's discharge was finalized on October 2, 1996. His grievance was referred to arbitration before this Board on November 8, 1996. On November 14, 1996, the grievor attended Pinewood Centre (associated with Oshawa General Hospital) for an assessment interview concerning his drug use. Thereafter, he attended a number of counselling sessions to address this issue.
The grievor's testimony in this regard is supplemented by three letters from an "addiction's counsellor" associated with the Pinewood Centre. The second letter, dated March II, 1997, includes these comments:
"N" attended Pinewood Centre's Ajax Office for his assessment interview on November 14, 1996. “N" agreed to attend the Guided Self-Change Program (GSC) which ran from January 8-29, 1997. The GSC Program is a four session early intervention program which assists clients to reduce their substance use. It also is geared to strengthen client motivation and commitment to change. Following the GSC Program, [which ended January 29, 1997] "N" opted to abstain from cannabis use and to participate in the Structured Relapse Prevention Program (SRP), which runs from February 12 - April 9, 1997. The SRP Program is an eight session program to assist clients in identifying high risk situations associated with substance use and to develop coping strategies to offset the triggers and urges related to those situations.
"N" has reported abstinence from cannabis use for 31 days and is an active participant in group discussion. He is slated to complete the SRP Group on April 9, 1997. On April 14, 1997 "N" has a case management meeting scheduled to discuss further treatment options, if any.
A later letter dated May 26, 1997 repeats that information and contains these additional observations:
"N" completed the Structured Relapse Prevention Program on April 9, 1997. He was an active participant in group, sharing personal experiences, challenging others with feedback, and receiving feedback from others. He reported overall progress and success in his identified goal of abstinence from cannabis use. "N" was given the options of continuing in a Relapse Prevention Maintenance group for added support or attending monthly case management meetings. "N" reported overall confidence in maintaining his goal and opted for monthly case management meetings. His next case management meeting is June 11, 1997.
As will be seen, the letters from Pinewood describe the program in which the grievor enrolled and the grievor's own assessment of his progress. The addiction counsellor does not express any views of her own as to whether the grievor has or has not abstained from cannabis use since his involvement with Pinewood. Nor is there any opinion as to whether the grievor was or was not actually "addicted" to cannabis, or whether that substance has addictive properties, or whether it would pose a risk to reinstate the grievor to the work setting described above. Indeed, there is no indication that the addiction counsellor was aware of that work setting, or this litigation, or the circumstances that brought the grievor to Pinewood, or the grievor's earlier unsuccessful effort to abstain from smoking marijuana.
The addiction counsellor did not give evidence before the Board; and, strictly speaking, the letters are not a "medical opinion" at all: the addiction counsellor is not a physician. More significantly, though, the letters do not make a clinical diagnosis of "addiction" or express any firm prognosis for recovery - let alone express the opinion that the grievor has fully recovered. There is no independent verification (by drug testing, for example) that the grievor has not been using his drug of choice, and there is no assessment of the likelihood that he will continue to abstain (which is to say, the likely success of the monthly meetings which the grievor has opted to attend). There is no indication of what the counsellor thinks might be necessary to address the grievor's problem.
These "gaps" or "questions" are troublesome, when one recalls the grievor's testimony that in 1990, he was involved in a much more concerted program directed by a physician which the grievor abandoned after a few weeks. That program didn't work out - as subsequent events seem to have established - so it is not at all clear what to make of the grievor's commitment to attend one counselling session a month.
This is not to say that the letters from the addiction counsellor are misleading in any way. It is simply that they do not provide a strong foundation for the grievor's alternative defence of "addiction/ disability followed by successful recovery"; and because the counsellor was not called as a witness, she had no opportunity to amplify her views.
Nor was the grievor's own testimony completely consistent with his alternative defence, or with the position described in the letters from Pinewood.
As I have already noted, the grievor testified that he has been an occasional marijuana user for many years. But the grievor did not think that his situation was much different from someone who drank alcohol on a regular basis. The grievor testified that the only time that he became a heavy user was in 1990 when he was involved in a car accident and sought help from a psychiatrist, and again in the summer of 1996, when he was experiencing family problems.
The grievor told the Board that he did not regard himself as "drug dependent". The grievor said that, as a result of his counselling sessions, he was satisfied that he did not need to smoke marijuana in order to cope with his problems and that he was confident that he would be able to refrain from doing so. On the other hand, he admitted in cross-examination that he had continued to smoke marijuana after January 29, 1997 when he completed the "Guided Self-Change Program" mentioned above (and, according to the counsellor's letter, had "opted to abstain from cannabis use"). And, of course, his effort in 1990 proved unsuccessful.
It is not clear when the grievor stopped smoking marijuana - if indeed he has actually stopped completely. What is clear is that, even accepting his evidence, he continued to smoke marijuana for some months after his discharge, and for many months after the personal difficulties that, he said, accelerated his marijuana use. His mother's death occurred in August 1996, and his child was born, without complications, in early September 1996.
There is no professional evidence about the grievor's stress tolerance, or whether, as he suggests, stress is a cause or "trigger" for his drug use. What can be said is that the sources of stress described by the grievor are the ordinary events of life; so that unless he really has come to grips with this situation, he remains at risk of using drugs again - as apparently happened after 1990.
DECISION
I - OVERVIEW
Before turning to the union's "Charter argument" (unlawful search and seizure, the right to counsel, the grievor's privacy interests, and so on), I think that it is useful to consider the labour-relations context in which this case arises, and the way it should be decided absent Charter considerations. For the Charter is only one element in the case; and while the union focuses on the grievor's rights and the grievor's personal problems, one also has to keep in mind the employer's concern: which is the grievor's behaviour at work and the consequent threat to himself to his fellow workers, and to members of the public who might be affected by an industrial accident. It is not at all clear how the Charter fits into this employer-employee equation or the framework of collective bargaining law; and in determining that impact, I do not think that it is inappropriate to keep in mind the operational impact in the particular setting under review.
From a labour-relations perspective, what is at issue in this case is the grievor's conduct in the workplace, and whether that conduct warrants termination of his employment relationship with Hydro. This is not a proceeding in which the grievor is pitted against THE STATE - at least as conventionally conceived, nor is an employer-employee relationship (or the alleged breach of an employment contract) something that typically attracts Charter scrutiny. Rydro's actions have not put the grievor's liberty at risk and the grievor's liberty is not at risk in these proceedings either. He faces no fine or other criminal sanction. This is an essentially civil proceeding, that is not even governed by the strict rules of evidence (see section 48(1 2)(f) of the Labour Relations Act and the decision of the Divisional Court in Re Greater Niagara Transit Commission and Amalgamated Transit Union, Local 1582 (1987), 6] O.R. (2d) 565). And in a civil proceeding (with the grievor in a role analogous to a "plaintiff') there is no firmly established "privilege" against self-incrimination.
No doubt, in appropriate circumstances, the Charter may be engaged as part of the legal analysis of work-place events - just as, on occasion, an arbitrator may be called upon "to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement" (to quote the provisions of section 48(12)(j) of the Labour Relations Act). However, the grievor's principal claim in this case is that he was discharged "without just cause" contrary to the terms of a negotiated collective agreement; so it may be useful to begin with the articulated reasons for that discharge, and determine whether, in the ordinary course, the fact of smoking drugs in a nuclear generating facility gives an employer 'just cause for discharge". The Board will then turn briefly to whether the employer is prohibited from relying upon these facts because of the manner in which certain evidence was obtained. Finally, I will consider the union's alternative argument that the grievor's behaviour was rooted in a "disease" (addiction) from which he has recovered or which is now in remission.
II- CHARTER CONSIDERATIONS ASIDE: IS THERE JUST CAUSE FOR DISCHARGE?
From Rydro's perspective, this problem came to its attention when an employee complained that a fellow worker was using drugs and demanded that Rydro put a stop to it. The complainant was identifying an unsafe work situation (as he was perhaps obliged to do pursuant to the Occupational Health and Safety Act), and Rydro immediately investigated that complaint (as it was also obliged to do under the ORSA). As a result of that investigation, Rydro determined that, at the very least, the grievor was a marijuana smoker, that he had some marijuana in his possession, and that he had brought the drug into the work place through the screening procedure described above. There was a strong inference that he brought the marijuana to work with the intention of smoking it there, and the evidence before this Board confirms that, for at least a four to six-week period (and perhaps longer), the grievor did smoke marijuana at work on a regular basis.
In other words, the allegations raised by the fellow employee are undoubtedly true.
Leaving aside for the moment whether the employer can rely on the evidence establishing these facts, and whether Rydro must comply with the Charter when enforcing its safety rules, would the situation support the grievor's discharge?
In my view it would.
This is a construction case", the grievor is a "construction worker", and the grievor is working in an environment which is, to say the least, extremely "safety sensitive". Given the nature of a nuclear facility, the employer has a well-founded and legitimate concern about safety. Rydro is obliged, by statute, to promote a safe work environment. The grievor's co-workers are entitled, by statute, to demand it.
There is really no dispute that the grievor's job requires a degree of perception, alertness, and judgement. Any impairment of his faculties increases the risk of accident, and endangers not only his own life, but also the lives of fellow workers (hence the informant's complaint). This concern is confirmed and underlined by the joint union-management statement reproduced above. The parties expectations and the collective bargaining regime are completely congruent with statutory norms - and with common sense.
This is not to say that the union-management statement constitutes an amendment to the collective agreement or a "specific penalty" within the meaning of section 48(12)(17) of the Labour Relations Act. However, that joint statement is a reflection of the operating and collective bargaining environment; and that is something that an arbitrator can take into account when determining whether there was 'just cause" for discharge. For to some extent, the concept of "just cause" takes its colour and content from the context in which those words are to be applied, and in this case it is evident that Ontario Rydro and its unions take a dim view of drug use in the workplace.
The arbitral jurisprudence makes it perfectly clear that for employees in safety-sensitive positions, the consumption or alcohol or drugs is a serious offence that warrants discharge unless there are compelling mitigating circumstances. (See for example: Re Brewers Warehousing Co. Limited and United Brewery Workers, et al. (1984), 16 L.A.C. (3d) 84; Re inter-City Truck Lines (Canada) inc. and Teamsters Local 880 (1988), 32 L.A.C. (3d) 370; Re Corporation of the Borough of East York and CUPE Local 114 (1990), 11 L.A.C. (4th) 133; Re Canadian National Railway Co. and United Transportation Union (1994), 43 L.A.C. (4th) 124; Re Pacific Elevators Ltd. and Grain Workers Union Local 333 (1991), 22 L.A.C. (4th) 346; Re Canadian National Railway Co. and CAW LocaI 100 (1993), 33 L.A.C. (4th) 17; and Re Mitchell Island Forest Products Ltd. and IWA Local 1-217(1996), 60 L.A.C. (4th) 73.) Truck drivers, construction workers, locomotive engineers and construction workers (etc.) work in a very different environment from file clerks or teachers. Any impairment of their faculties could have serious consequences for themselves and others. Thus, in Schindler Elevator Co. vs. International Union of Elevator Constructors, Local 50 (unreported), Board File No. 0539-96-G, November 13, 1996, the Board recently observed that:
There is no doubt that elevator mechanics, be they on a regular maintenance route or working as a service mechanic, work in highly dangerous circumstances. As was brought out in the cross-examination of various grievors, particularly Mr. MeKechnie, the maintenance which is performed on elevators requires a mechanic to work with tools on numerous moving or rotating parts, often while perched on top of a moving elevator. The mechanics regularly perform their work in short sleeve shirts, and without rings or jewellery, for safety reasons. The mechanic may be working on one elevator while other elevators are moving around him. The work involved is highly complex and far from routine. The severe harm that could befall a mechanic should he lose his balance or momentarily lose his concentration in whole or in part due to the consumption of any alcohol or drugs, whether consumed on work hours that are paid or unpaid, is patent.
There is also a safety concern regarding the public. As a general observation, it can be fairly stated that most individuals encounter one or more elevators in a typical business day. For the most part, the public takes the proper functioning of elevators for granted. It is, perhaps, a testimony to the high quality of work performed by elevator mechanics and helpers that the public can ride in elevators without fear of mishap. Consider, though, the potential for severe injury or death that could result from the faulty repair or maintenance of an elevating device. The failure by an elevator mechanic to properly perform his job because of the consumption of any alcohol or drugs, irrespective of when it was consumed, could have significant consequences for the public, the mechanic, and the employer, both financial and otherwise. Mr. McCann conceded this in cross examination.
There are certain business interests of the employer which were also relied upon by counsel during argument. Should one or more members of the public be injured or killed as a result of negligence or carelessness caused or contributed by the use of alcohol or drugs by a Schindler employee, there would be direct and significant business consequences for Schindler. Additionally, each of the grievors drove to Austin's in a Schindler vehicle, and the potential consequences of driving such a vehicle when affected by alcohol or drugs are obvious. There are also other consequences to Schindler when a mechanic drinks alcohol during the work day. The evidence established that mechanics regularly come into contact with customers (including engineers, property managers and building superintendents) at both residential and commercial accounts. There was evidence that on at least one occasion a client smelled beer on the breath of its mechanic. It cannot be to the benefit of Schindler to be perceived by the public as permitting the consumption of alcohol or drugs by its mechanics. In this context, Schindler also has an interest in limiting the use of alcohol or drugs during working hours. There is also a business interest in precluding a mechanic wearing a Schindler logo from consuming beer during the entire work day, on the basis that to permit consumption of beer in those circumstances may well affect the public's perception of Schindler's operations.
The Board went on to say:
I am of the view that the employer has established significant, legitimate interests which permit for the conclusion that the rules imposed by it regarding the use of drugs and alcohol are reasonable, in the circumstances of this case. Quite simply, the consequences of a Schindler employee becoming affected by the consumption of any alcohol or drugs at lunch are so significant, to the mechanic, the public, and the employer, that a "zero tolerance" rule is warranted. It should be kept in mind that the evidence established quite clearly that, for the most part, the elevator mechanics employed by Schindler are unsupervised and therefore not subject to direct managerial control. It is not realistic to permit the individual mechanic (as counsel for the employer put it) "to be his own liquor control board". The potential consequences of individual error are just far too severe. If the above interests are to be protected, the only reasonable means of doing so is to preclude Schindler employees from consuming alcohol or drugs at any time during the working day, whether the time is paid or unpaid.
These observations are consistent with a long line of cases that suggests that, in certain industries, there must be an uncompromising standard in order to deter conduct that so seriously threatens the safety of others - and, in many cases, the public as well. It is not a question of work performance, as such, but whether the safety of other workers or the public is put in jeopardy by the impaired worker. And, as will be seen, this case is a lot like Schindler.
In this case the employer's business is a hybrid of the nuclear and construction industries, and, in my view, an employer in that setting is entitled to demand that employees refrain from possession or consumption of intoxicating substances while at work. I do not have to reiterate the human and commercial consequences of an industrial accident. Quite apart from that, though, the employer is under a statutory obligation to maintain a safe workplace and to take reasonable steps to ensure that employees are not exposed to preventable risks - whether such risks arise from dangerous machinery, noxious substances, or unsafe work practices. One element in a prevention program is the imposition of discipline, to deter employees who might be disposed to break the rules - especially when employees know that the risk of detection is low and the employer's problems of proof can be significant.
Against that background, there is something to be said for certainty of result, when, as in this case, the company actually has been able to establish the contravention of its work rules. Indeed, in the company's submission, to do anything else "sends the wrong message" to employees like the grievor, who either knew the rules but did not think that he would be caught, or seems to believe that despite the company's published policy, an arbitrator would not likely uphold a termination. There is also much to be said for the company's submission that "zero tolerance" and the "certainty of discharge" are both necessary to effect general deterrence; and that the work-place safety regimen of this nuclear facility would be undermined if a drug-smoking construction worker were able to escape responsibility for his behaviour.
I do not suggest that arbitrators should respond mechanically to the problem of alcohol or drug use in the workplace. It is necessary to be sensitive to the grievor's individual circumstances, as well as the context under review. For, as I have already noted, there is a world of difference between an impaired file clerk and an impaired construction worker - particularly one that works in an operating nuclear generating facility. But here, the work setting and the bargaining parties' understanding both point in the same direction: drug smoking in this workplace is an exceptionally serious matter and, prima facie, employees who engage in that misconduct, should expect to be discharged.
In the instant case, the grievor engaged in serious misconduct, which he knew the employer would not tolerate. That is why he chose a remote location where he did not expect to be discovered. The grievor brought marijuana into the plant and smoked it during working hours - not just once or twice, but on numerous occasions over at least a 4 - 6-week period. Not to put too fine a point on it: the grievor acted with callous disregard for his own safety and for the safety of his fellow workers; and he exposed the company to the prospect of serious criticism and commercial consequences - not least because, at the time, the company's safety practices were under intense scrutiny by public interest groups and its regulatory agency.
This is not a case where the employer has tolerated the grievor's behaviour or has singled him out for special treatment. There is no discrimination here. The company has taken steps to put all employees on notice of their obligations under the collective agreement, by including the workplace rules in the orientation package provided to all employees when they come on site. In a couple of cases where an employee's drinking problems were detected before they surfaced on the work site, the employees were diverted into the EAP, and in a couple of cases, alcohol problems led to discharge. However, this is not an employer that has tolerated using drugs or alcohol at work, nor (on the evidence) has there been any case similar to that of the grievor. This is not a situation in which there has been condonation, nor have there been "mixed messages" or a "double standard".
Long service is always something which tells in an employee's favour, because employees with long service have an investment in their jobs which should not be lightly erased. In this case, though, the grievor has been employed (most recently) for only 2½ years. While this is not insignificant, neither is it substantial when weighed against the gravity of the grievor's misconduct.
In all the circumstances of this case, I am satisfied that the employer had 'just cause" to discharge the grievor.
To put the matter another way: the company's "zero tolerance policy" is a reasonable one, so that a construction worker at a nuclear power site, can expect to be discharged if s/he has drugs or alcohol in his/her possession, or consumes those substances at work.
But is the company precluded from proving or relying on the grievor's misconduct, because of its own breach of the grievor's Charter rights? Does the Charter regulate the way in which the employer goes about enforcing its safety rules, and does the Charter shield the grievor from the employment consequences of his misconduct?
III - THE CHARTER ISSUE
Counsel for the union submits that there is no evidence properly before the Board to support the employer's position, because its investigation was totally tainted by numerous violations of the grievor's Charter rights. The physical evidence and the grievor's admissions are all "fruit of the poison tree", and the informant's charges are unsubstantiated hearsay.
Briefly put, counsel asserts: that the grievor was subjected to an unreasonable search and seizure for which there was no authority and no reasonable or probable cause; that the grievor was arbitrarily detained; and that he was not "cautioned" in a timely way or informed of his right to speak to a lawyer. Counsel submits that the grievor's admissions and the physical evidence must be completely disregarded - either in the exercise of the Board's discretion, or pursuant to section 24 of the Charter, which reads as follows:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Counsel relies on a number of cases including Weber v. Ontario Hydro (1995), 82 O.A.C. 321, where the Supreme Court of Canada held that an arbitrator could apply the Charter and was a "court of competent jurisdiction" for the purpose of section 24 remedies. Weber - at least implicitly - suggests that the Charter applies to Ontario Rydro's employer-employee relationships.
This Charter argument raises a variety of interesting legal questions, including:
Is Ontario Hydro an entity to which the Charter applies at all; and, in particular, does the Charter apply to the company's employer-employee relations and the administration of a negotiated collective agreement?
Were the security guards subject to the Charter when they confronted the grievor on company premises during working hours and questioned him about his drug use; and, in particular: was he arbitrarily detained, did he have a right to remain silent, did the guards have an obligation to advise him of such rights, and should the grievor have been told to speak to a lawyer?
Does it matter that one of the guards was a "special constable" who purported to "arrest" the grievor; or, despite the terminology used, was this really the exercise of "managerial" rather than "state authority"?
Was there an unreasonable search and seizure under the Charter and/or a common law tort which taints the physical evidence and precludes its use? What about the grievor's admissions?
Does it matter that the evidence in question is being tendered in a civil proceeding, somewhat analogous to a wrongful dismissal action, where the grievor is challenging the employer's decision but does not face THE STATE, as such, or state-imposed sanctions of fine or imprisonment?
If there has been a Charter breach, would the admission of the impugned evidence "bring the administration of justice into disrepute"? What do these words mean in the context of an arbitration proceeding?
This list is not exhaustive, and, of course, the company would answer "no" to all of these questions.
Again, in brief: the company submits that the Charter has no application to its relationship with its construction employees or to the way in which it investigates violations of workplace safety policies. In the company's submission, neither the Charter nor the criminal law applies in these circumstances - not least because, in the instant case, no police were involved, no charges were laid, and no state penalties were ever contemplated. The company merely decided on the basis of the information received that the grievor was not a suitable employee.
The company asserts that despite some of the language used by the guards, the authority to which the grievor was submitting was not that of the State - but rather that of an employer, who was entitled to question the grievor about his activities, demand that he turn over any contraband, and invoke the civil sanction of discharge. The company points out that, in a nuclear environment, there are a number of rules and restrictions that the company is required to enforce on its premises; and, in the company's submission, this rule is not much different. Indeed, the company is obliged to take action to maintain a safe work-place. Whether or not evidence of the grievor's drug use would be admissible in Court in a criminal proceeding, it is properly put before an arbitrator to establish 'lust cause" for terminating an employment relationship.
The company submits, in the alternative, that even if there was some tort or Charter breach, it would be inappropriate to exclude the impugned evidence - especially given the serious safety concerns involved, and the fact that the employer was not asserting some State interest, but rather was trying to protect its employees and the public, at the instance of one of those employees. The company submits that even under Charter section 24, there is a discretion to admit "tainted evidence"; and the phrase "bring the administration of justice into disrepute" was never meant to apply to grievance arbitration proceedings arising under a negotiated collective agreement. Indeed, counsel goes so far as to suggest that, if the phrase does apply to grievance arbitration proceedings, the process would fall into disrepute if clear evidence of drug use were not admitted. If the grievor were to escape responsibility on this basis, it would fuel employee cynicism and undercut objectives to which the union and employer both subscribe.
Counsel urges the Board to exercise an informed labour relations judgement, weighing the institutional as well as the individual rights concerned. In his submission, the grievor should not be able to escape civil responsibility for his behaviour - any more than a shopkeeper would be precluded from seeking restitution from a thief whose criminal charges had been dismissed on Charter grounds.
The employer submits that the Board should admit the guards' evidence in its totality, whether or not such evidence would be admitted in a Court of law. The company relies, among many cases, on Greater Niagara Transit Commission, supra, where the Divisional Court held that an arbitrator should receive evidence in an arbitration proceeding even though that same evidence had been excluded from a criminal trial on Charter grounds (though the analysis in that case is not completely congruent with Weber); and R. V. Shafie, 31 O.A.C. 362 where the Ontario Court of Appeal examined competing authorities and concluded that "actions that at the hands of the police or other state or government agents would be detention do not amount to detention within the meaning of section 10(b) of the Charter when done by private or non-governmental persons". In Shafie, the Court expressed concern about what it described as "the judicialization of private relationships beyond the point that society could tolerate", and Krever, J.A. went on to observe:
"The requirement that advice about the right to counsel must be given by a schoolteacher to a pupil, by an employer to an employee or a parent to a child, to mention only a few relationships, is difficult to contemplate."
However, given the way that this litigation unfolded, I do not think that it is necessary to reach any final conclusion about any of these difficult questions, because apart altogether from the guards' evidence, there is independent testimony establishing the fact that the grievor smoked marijuana at work. And that evidence comes from the grievor himself.
In support of its position, the company tendered the testimony of five witnesses: three security guards and two members of management. The grievor was not called as a witness by the employer - although perhaps he might have been (thus illustrating a significant difference between civil and criminal proceedings). Nevertheless, after the company closed its case, the grievor chose to take the stand on his own behalf, to contradict the company's version of events, and to advance the alternative "defence" that his use of drugs at work was rooted in a "disease" or "disability" which has now been successfully treated. And, having chosen to give evidence, the grievor was subjected to cross-examination.
Counsel for Hydro objected to this post-discharge evidence, on the basis of the Supreme Court of Canada's decision in Compagnie Miniere Quebec Cartier v. United Steelworkers of America, Local 6869 (1995), 125 D.L.R. (4th) 577. However, the grievor was clearly entitled to testify on other matters, and in the course of cross-examination, counsel elicited the grievor's admission that he had indeed smoked marijuana on numerous occasions, in the 4-6 weeks preceding his discharge on October 2, 1996.
Accordingly, even if the evidence of the guards is totally rejected, there is independent evidence that the grievor engaged in the misconduct for which he was discharged; moreover as I have already indicated, this was the kind of conduct for which discharge was warranted.
In summary, while there may be some doubts about whether the Charter applies to Ontario Rydro in its capacity as employer (see Bartello v. Canada Post Corporation (1987), 18 C.C.E.L. 26) and similar doubts whether, in the circumstances of this case, a Charter breach should result in the exclusion of evidence from this essentially civil proceeding, I do not have to reach any final conclusion about that, because the employer's position is supported by other evidence, unaffected by any Charter taint.
IV - IS THE GRIEVOR'S MISCONDUCT ROOTED IN A "DISEASE" OR "DISABILITY" FROM WHICH RE RAS NOW "RECOVERED"?
Since the Cartier decision (supra), there has been considerable arbitral debate about the use of post-discharge evidence. Some arbitrators have noted the Court's observation that such evidence may be considered if it "sheds light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented", and have admitted the evidence for that purpose. Other arbitrators have pointed out that the Court made no mention of statutory provisions such as section 48(17) [or 48(12)(j)] of the Labour Relations Act - which gives the arbitrator an independent statutory authority to decide what is "just and equitable in all the circumstances". The emphasized words drawn from section 48(17) are clearly broad enough to encompass post-discharge events which might influence the arbitrator's statutory discretion - such as a post-discharge apology with restitution, or, conversely, continued deception or lying at the hearing. Since the statutory discretion is available despite a discharge "for cause", there is no reason to limit the plain words of the legislation to events preceding the discharge. "All of the circumstances" means ALL of the facts arguably relevant to the exercise of the statutory discretion. Accordingly, either arbitral approach would permit evidence of a disease which reduces the grievor's personal culpability for the events giving rise to his discharge, but which is under control (or not) by the time of the hearing. (See Re Mitchell Island Forest Products Ltd. and IWA Local 1-2 17 (1996), 60 L.A.C. 73, and Re Alcan Smelters and Chemicals Ltd. and CAW Local 2301 (1996), 55 L.A.C. (4th) 261.)
However, for present purposes, I do not have to review these authorities, because, in this case, even if the post-discharge evidence is accepted, I do not think that it alters the result.
There is not much doubt that, today, drug addiction can be regarded as a "disease" that with appropriate attention and treatment can be controlled. Drug addiction is, moreover, a condition with both physiological and psychological components: a complete inability to control one's drug use with progressively debilitating consequences; and an inability to recognize the reality of the situation or the destructiveness of this behaviour - what writers in the field describe as "denial". And one of the dominant characteristics of this "illness" is the addict's belief that he is not addicted.
An addict takes drugs to feel normal, or to cope with normal daily pressures, and s/he sees nothing abnormal about that. The constant ingestion of drugs is as necessary for an addict as insulin is for a diabetic; and it is because of this interplay between physiological and psychological pressures, that the condition is so difficult to "cure". Control of addiction requires a degree of effort and commitment which many individuals are unable to muster. (Again see the comments in Mitchell Island Forest Products Ltd., supra, at pages 8 1-84 and 89-93.)
Because the essence of drug addiction is an inability to control drug use, it is wrong to assign "fault" to an addict who uses drugs inappropriately. S/he cannot do otherwise. In this regard, an addict is in a different situation from "normal" employees who may act irresponsibly, but are not clinically addicted. Threats or consequences which are sufficient to deter normal individuals are much less likely to have the desired effect on an addict, whose freedom to choose is severely restricted by the addiction itself (although the threat of discipline may be an element in the equation). Thus, a "one track" "zero tolerance policy" that only involves discharge - and takes no account of disability - may not survive scrutiny under either a 'just cause" test, or under the Ontario Human Rights Code.
However, it is precisely because ordinary sanctions may not work that, if someone is clinically addicted to drugs or alcohol, there must be positive assurance that s/he has recognized the condition and taken active steps to bring it under control. For although an employee cannot be discharged for addiction, per se, his/her consequent behaviour may have serious impact on himself/ herself or others, and the risk of that behaviour can pose an identifiable hazard. In safety sensitive jobs, other employees (or the public) can be put at serious risk (hence the informant's complaint in this case).
Of course, it is always difficult to distinguish irresponsible drinking or drug use from behaviour rooted in the "disease of addiction". While addiction may be the cause of drug use on the job, so may many other things, including boredom, irresponsibility, lack of judgement, or an inclination to defy the rules. A person caught drinking or using drugs on the job is not necessarily addicted. Nor does the mere use of drugs at work establish addiction - especially in the case of cannabis, where the addictive properties are a matter of some debate.
However, even if the evidence does establish addiction - essentially a medical diagnosis - it does not mean that the addicted employee should be reinstated or that discharge is inappropriate. In fact, it probably means that traditional forms of deterrence are not enough to ensure compliance with workplace norms, and there must be additional positive indications that the individual has taken successful steps toward recovery. Drug addiction seems to be a particularly tenacious affliction, so where the individual is involved in a "safety sensitive" position, there must be affirmative evidence not only that the individual actually is "addicted", but also that there are positive assurances that the employee has recognized it, that the employee has sought appropriate treatment, that the treatment is working, and that there is little risk of relapse.
So what is the evidence in the instant case?
The grievor has obviously been using marijuana for some time, and was caught doing so at work; moreover, if the grievor is to be believed, he smoked marijuana quite a bit in the late summer and in the fall of 1996. However, the grievor also testified that, except for two periods when he was under personal pressure, he was merely a recreational user of marijuana, and that his recent encounter with counselling had convinced him that he was not drug dependent.
Accordingly, assuming that someone can become addicted to cannabis, it is not so clear that the grievor is so addicted, or that he regards himself as an addict. What is clear is that the grievor continued to smoke marijuana for some months after his discharge, and for some period after he attended counselling sessions - which, in any event, were initially designed only to accomplish "controlled use", not abstinence.
There is no medical diagnosis of addiction, nor any medical prognosis of probable recovery. There is no detail about the grievor's "recovery program", other than the fact that he has attended a number of counselling sessions, and proposes to attend one counselling session a month for some period into the future. Indeed, there is no independent verification that the grievor has actually stopped using drugs, because the counsellor's letter merely records what the grievor himself has reported to her.
In short, if the grievor actually is addicted to drugs, the evidence does not establish that fact, and does not give one much confidence that he has come to grips with his situation. Nor does it disclose the degree of commitment evidenced in many of the reported cases. On the contrary, the situation is very similar to that faced by arbitrator Gorsky in Stelpipe Page-Hersey Works and CAW, (unreported, October 3, 1993 - noted in Canadian Labour Views):
No one able to medically assess whether the grievor's behaviour on March 6, 1993 could be attributed to his medical condition or as to his prognosis was called to testify on his behalf. In addition, while I do not wish to deprecate the grievor's sincerity, portions of his evidence can only be viewed as being self-serving ... The documentary evidence filed on behalf of the grievor lacks sufficient detail to give me the confidence to act on it alone. I am unable to accept the explanation for having no witness called on behalf of the grievor with expert qualifications, whose testimony might have tipped the balance in favour of returning him to work subject to conditions ... As noted above, there are also shortcomings in the documentary evidence submitted on behalf of the grievor which point in the direction of some of his assertions being self-serving. These relate to certain dates testified to by him, which are not supported by the documentary evidence, and the grievor's explanation for the discrepancies was not entirely satisfactory. There were also differences in some of the facts testified to by the grievor at the hearing as to when he ceased drinking alcohol and the recounting of the same facts in the documentary evidence ... In the circumstances, and in the absence of more substantial evidence about the grievor's condition and his potential for rehabilitation, I feel constrained about relying, to the extent that I would have to do, on the grievor's evidence as to his prognosis for maintaining sobriety and being able to carry out his obligations to his employer in a satisfactory manner, including his obligation to attend work.
I have the same reservations.
For the foregoing reasons, I am satisfied, that however the situation is analyzed, this grievance must be dismissed.
If the grievor is not addicted to marijuana, his misbehaviour provides just cause for discharge, and the mitigating circumstances are insufficient to warrant an exercise of the Board's remedial discretion under section 48(17) of the Labour Relations Act.
Alternatively, if the case is approached from the perspective of disease/disability and recovery, there is insufficient evidence to support a finding of "addiction", and only weak evidence of the kind of recovery program which might support reinstatement (with conditions) to a "safety sensitive" position.
I do not wish to leave this matter, however, without one concluding observation.
In the course of argument, both counsel noted that: this is the construction industry, the Hydro collective agreement has a "hiring hall" clause, and that it is possible that, in response to Hydro's call for more labourers, the union may refer the grievor to the site at some point in the future - as it has done periodically in the past. If that were to happen, the fact that the grievor was discharged in October 1996 may not be a complete answer to his job referral months or years later. The employer would have to exercise its judgement in a manner that is reasonable, having regard to the circumstances that obtain at that time - including any evidence that the grievor has abandoned his use of drugs.
The point is: discharge in the construction industry may not have the finality that it has in an industrial setting; and it is important to appreciate that nothing in this decision forecloses a future decision in the grievor's favour based on evidence that is different from the evidence adduced before me.
With these additional observations, though, this grievance is dismissed.