Timmins-area Gold Mine Worker Gets Fired For Testing Positive For Marijuana Twice

In a 2015 blog post, Suzanne Desrosiers wrote that the legalization of marijuana “DOES NOT allow an employee to:

1. Be impaired at work;
2. Compromise his/her safety;
3. Compromise the safety of others;
4. Smoke in the workplace;
5. Have unexcused absences; and/or
6. Show up late for work.”

Unfortunately, a 14-year Newmont-Goldcorp employee did not see that blog before being suspended and later terminated for violating the first three things on Suzanne’s list. In the arbitration decision Newmont-Goldcorp Canada Ltd. and USW, Local 7580 (CA-009-21), Re, 2023 CarswellOnt 8995, an arbitrator upheld that employee’s termination.

The facts in the Newmont-Goldcorp decision are important. When the unnamed employee was operating a truck, his coffee spilt on his leg, and he reached to pick up the mug, causing him to look down. By not paying attention he ended up in an accident that caused $60,000 in damage to the truck. The employee’s unusual behaviour after the incident made management request that he takes a drug test, as per the Alcohol and Drug Free Workplace Program (which is also referred to as the policy). The employee tested positive for marijuana. He later admitted that he smoked 12 hours before his scheduled shift. A further assessment of the employee found that he did not need assistance for a substance abuse disorder, as his marijuana use was deemed to be recreational. As a result, the employee received a 40-hour unpaid suspension for violating the drug policy. The union grieved this decision.

After the incident, the union and the employer entered into a last-chance agreement, which required that the employee takes a drug test before returning to work after the suspension. Although the employee was aware of the upcoming test, he smoked marijuana 24 hours ahead of the time he was scheduled to return to work. When the employee failed the drug test, he was not permitted to start his shift. The employee later received a termination letter. The union also grieved this decision.

The arbitrator found that the Alcohol and Drug Free Workplace Program (the policy) was reasonable. It complies with the precautionary approach required under the Occupational Health and Safety Act (OHSA) where employers must take precautions to protect workers. The arbitrator noted that the employer had the obligation to prevent the danger of the employee driving heavy machinery in the mine while impaired. Finding that the policy was reasonable, the arbitrator turned to the employee’s discipline and termination. The arbitrator found that the employee’s reckless actions that caused the truck damage were likely connected, in part, to him being under the influence of marijuana. Therefore, the suspension was justified. The arbitrator also found that the employee testing positive for the second time was contrary to the last chance agreement and the policy. As such, the arbitrator also upheld the termination.

Facts are always important when it comes to cases involving marijuana

The facts are important to this case. This is a case where (1) a heavy machine operator who (2) recreationally used marijuana in (3) a workplace where a mishap could be dangerous in (4) contravention of a policy. If any one of those four factors were different, a different outcome may have occurred. If the employee was working a job where some impairment by marijuana would not cause danger to the workplace, a slower application of progressive discipline would be more appropriate. If this employee was addicted to marijuana (a disability) the employer would have a duty to accommodate. In cases of drug addiction, employers may have a duty to inquire, which I have written about in a previous blog. Finally, to discipline in a case of drug abuse, it is best to have either a valid progressive discipline policy or a valid drug policy that you can rely on. Failure to have a valid policy can result in your disciplinary decision being found to be arbitrary or unfair in the circumstances.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation our team of employment lawyers can help employers address a drug abuse issue happening in your workplace. As addiction is connected to human rights, it is important that you make the right call when you believe an employee is abusing drugs. To contact one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.