Two recent arbitral decisions from British Columbia have upheld terminations where employees were found to have returned to work after smoking marijuana during their lunch breaks. These decisions come at an interesting time, as the newly elected Federal government has promised to legalize and regulate the use of marijuana.
In a decision involving Insurance Corporation of BC and the Canadian Office and Professional Employees Union, the employee was terminated after he admitted to driving off the employer’s property during his lunch break, smoking marijuana, and returning to work. The employee also admitted to having done so on previous occasions. Despite this admission the employee maintained that he was not intoxicated when he returned to work, and that he only smoked marijuana as a stress reliever, not to get “baked”. The arbitrator rejected this defence, finding that it was unnecessary to conclude that the employee was impaired to uphold the termination. The employee’s intent was to alter his state of mind and return to work. That fact, along with the fact he had breached the employer’s code of ethics, was sufficient to justify discipline. Despite having worked for the employer for 24 years and having no discipline on record, the arbitrator upheld the termination, noting that the employee was not entitled to assess his own capabilities to drive and work under the influence of marijuana. The fact the employee believed he could smoke marijuana so long as he did not get “baked”, highlighted the fact that he failed to realize the severity of the incident.
In a decision involving Vancouver Shipyards and the Marine and Shipbuilders union, an off duty police officer out for a bike ride, observed marijuana smoke emanating from a moving vehicle. When he stopped beside the vehicle at a light, the driver blew marijuana smoke in the officer’s direction. After following the vehicle for a short period of time, the officer found it parked in the employer’s parking lot and alerted the employer. Two employees admitted to having been in the vehicle and admitted to having seen the cyclist, but denied having smoked marijuana, claiming it was cigarette smoke. The arbitrator rejected the evidence of the employees, finding that the officer, who happened to be a member of the drug squad, was credible and would have known the smell of marijuana. The arbitrator also found that it did not matter the employer was unable to establish that the employees were intoxicated when they returned to work. It was sufficient that they had smoked marijuana during their break. In upholding the dismissals the arbitrator found that the long service of the employees and their discipline free records were insufficient to overcome the seriousness of smoking marijuana and returning to a safety sensitive workplace.
These decisions, while not binding on arbitrators, provide a strong indication of the approach arbitrators will take to marijuana use during the work day, and suggest that such use is likely to be incompatible with the continuation of the employment relationship.
If you have any questions concerning the information presented in this article, please contact Chris Leenheer, Partner.