Dismissal for Cannabis Fuelled Safety Incident Upheld

Written by Lewis Waring, Paralegal and Student-at-Law, First Reference Editor

In Canadian Pacific Railway v United Steelworkers – TC Local 1976 (“Canadian Pacific”), an employer’s dismissal of an employee who committed a safety infraction while intoxicated with cannabis was upheld as reasonable. The safety-sensitive nature of the workplace, the employee’s history of intoxication and the lack of any connection to medical or addiction issues were key factors in a labour arbitrator’s decision to uphold the employee’s dismissal.

Background

The employer was a federally regulated railway company. The employee had been employed by as a grounds person until her dismissal in December 2020 for her involvement in a safety incident. Following an investigation, the employee had tested positive for cannabis usage and had been dismissed for cause.

The incident in question occurred during an overtime shift. Eight hours prior to the beginning of that shift, the employee had ingested cannabis to the extent that she had been significantly impaired as a result. During the following shift, the employee had thus become involved in a dangerous safety infraction while under the influence of cannabis. The employer responded by conducting drug testing and imposing a 20-day suspension. The employee, in this case, had a history of usage, having been at one time deemed unfit for a safety-sensitive position as a result of testing positive for substance usage. This usage was found to be unconnected to any medical needs and was thus deemed to be recreational in nature. After a period of considering its options, the employer ultimately decided it appropriate to dismiss the employee for cause. This decision was upheld by a labour arbitrator as being a reasonable decision.

Issues underlying workplace intoxication

Substance use in the workplace is a complex issue that may or may not involve a wide variety of issues including human rights as well as workplace safety. While intoxication in the workplace can have several negative effects and can in some cases be dangerous, employers should be cautious of responding to it with dismissal. While dismissing an employee for intoxication in the workplace can be appropriate in some circumstances, it can also be disproportionate and bring a significant risk of liability for wrongful dismissal or for human rights discrimination on the grounds of disability.

Intoxication in the workplace can very well be grounds for a disciplinary response but an appropriate response will often not be dismissal. As is the case with all other mistakes and misconduct, employers are expected to discipline employees in a proportionate manner, one that takes into account the seriousness of the conduct involved and any relevant history of similar transgressions. Employers who respond to worker intoxication with unreasonably harsh discipline put themselves at significant risk of liability.

While dismissing an employee for intoxication brings a risk of wrongful dismissal, even less severe forms of disciplining an employee for intoxication can result in liability for human rights discrimination. It is crucial to understand intoxication in the context of addiction, which is considered a disability under human rights law throughout the country. If an employer responds to an addicted worker’s intoxication in the workplace without considering its duty to accommodate that worker, it will be under significant risk of liability before both courts and human rights tribunals.

The risks of human rights liability are particularly poignant when considering cannabis, which may be prescribed as a medication that a worker may be recommended to or required to ingest in the workplace. Employees that use cannabis for medical purposes should always be considered identically to any other employee with a prescription. Incidents that occur due to a worker’s prescription for cannabis or any other medication should be responded to in a way that attempts to accommodate the worker’s medical needs within certain limits. Employers are expected to find a way to preserve the employment of workers that require medical cannabis as long as doing so does not require accommodation beyond the point of undue hardship. In other words, employers must attempt to accommodate an employee that uses medical cannabis in the workplace as long as that usage does not unreasonably endanger the workplace, require the dismissal of other workers or cause exorbitant financial investment.

When dismissal for cause is justified for workplace intoxication

However, given the risks inherent in responding to workplace intoxication with discipline, Canadian Pacific demonstrates that disciplining a worker for attending the workplace while intoxicated can be a reasonable response that will be upheld in a legal dispute. This case shows that a worker’s attendance at the workplace while intoxicated with cannabis can be grounds for discipline up to and including dismissal for cause. In this case, the employee’s history of recreational cannabis usage resulting in discipline as well as the safety-sensitive nature of the workplace made the employer’s decision to dismiss appropriate in the circumstances.

Employers who discover a worker has attended the workplace while intoxicated with cannabis or other substances should first and foremost understand whether the worker’s usage is connected to any addiction issues or medical needs. If the worker’s usage is connected to any medical or addiction issues, the employer should approach the incident with an eye to fulfilling its duty to accommodate what is considered a disability under Canadian human rights law. However, if the usage is unconnected to medical needs or addiction and is instead recreational in nature, the employer may be within its rights to discipline the worker for his or her misconduct. Whether discipline is merited depends upon the seriousness of the consequences of the worker’s intoxication and the nature of the workplace.

If the worker’s intoxication creates a danger to themself, colleagues or the public, discipline is likely merited. Whether this discipline should be a warning, suspension or dismissal for cause depends upon whether these responses are proportionate to the worker’s misconduct. When a worker has no history of intoxication in the workplace, a lesser form of discipline such as a warning is likely the most proportionate response. If, on the other hand, an employer has disciplined a worker on multiple occasions for using intoxicants in the workplace, responding to each instance with gradually more serious discipline, it may be appropriate to dismiss the worker for cause. Canadian Pacific demonstrates that implementing the ultimate disciplinary response for reasons of intoxication can be reasonable, but employers should approach this option with great caution and, if possible, only after consulting with counsel.

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