Canada: British Columbia Labour Arbitrator Finds Just Cause For Discipline in Post-Accident Drug Testing Dismissal Case Even Though the Drug Policy Had Been Previously Set Aside

The employer in Teck Coal Limited (Line Creek Operations) v International Union of Operating Engineers, Local 115, 2018 CanLII 69605 (BC LA) is a mining company that implemented an Illegal Drug and Alcohol Policy in or around 2012.

In or around 2017, an employee accidentally drove one of the employer’s trucks into a cement barrier. The employee failed to report the accident to his supervisor immediately. The employee was required to undergo post-accident testing for drug metabolites the morning after the incident. He tested positive for a cannabis metabolite well above the threshold set out in the employer’s Policy. The employer therefore dismissed the employee relying on its Policy, as well as for failure to report his use of drugs and his involvement in the accident.

The employee’s union grieved the dismissal, and challenged the reasonableness of the Policy. The Policy was set aside for ambiguity in a separate arbitration proceeding. In the dismissal grievance, the labour arbitrator was required to determine whether the employer could still prove just cause for the employee’s dismissal even though the Policy had been set aside.

The arbitrator held that, while the employer could no longer rely on the Policy in order to prove just cause, the employer was not precluded from imposing discipline, and in fact retained a “presumptive right to impose discipline” for the reasons set out in the dismissal letter, regardless of the Policy’s demise. The arbitrator reasoned that the legal foundation for the imposition of discipline resided not in the Policy, but in the employer’s right to manage. Accordingly, the employer’s right to impose discipline could survive even though the Policy had been set aside. The arbitrator noted that reasonable cause and post-incident testing are permitted even without a written policy, and that attending work in a state of impairment constitutes conduct for which no specific rule is needed to show cause for some discipline.

The arbitrator ultimately held that it would have been unfair to preclude the employer from alleging that the employee had compromised its interests in the specific circumstances of the case, and the issue of what, if any, discipline would survive arbitral review would be decided at a later time, after a full hearing of the merits of the employer’s case.