Terminating a unionized employee for substance abuse in the workplace is tricky, considering the duty to accommodate and the traditional mitigating factors arbitrators will consider when determining whether termination is an appropriate response (length of employment, discipline record, remorse, etc).
A recent arbitration decision might bring some comfort to employers. In Vale (Manitoba Operations) v. United Steel Workers (Fudge Grievance),  MGAD No 11, an arbitrator dismissed an employee’s grievance after he was terminated for possession and use of marijuana in the workplace. There was insufficient evidence to show that the grievor suffered from a drug addiction.
The grievor worked in a mine refinery. The parties agreed that the overall operation of the employer was a safety sensitive workplace.
The grievor attempted to convince the arbitrator that he suffered from a drug addiction and that the employer should have accommodated him. The grievor described a pattern of marijuana abuse, testifying that he had been a heavy user of marijuana since the age of 15. At the time of termination, he was 24 years old.
As described by the arbitrator, the grievor’s testimony was uncorroborated subjective evidence of heavy drug use as part of a dysfunctional personal life. Irresponsible drug use, without more, does not prove that someone suffers from an addiction, reminded the arbitrator.
While an arbitrator can consider a grievor’s self-assessment, here the grievor’s credibility was diminished because he was not forthcoming during the investigation; he originally claimed that he smoked marijuana occasionally at work, but later admitted to smoking 3 to 4 times per week.
Moreover, the grievor’s claim that he received a diagnosis from the Addictions Foundation of Manitoba was insufficient because he failed to produce any report confirming the diagnosis. An adverse inference could be drawn for failing to produce such a document.
In the end, short of any evidence that the grievor suffered from an addiction, the arbitrator was left with the available mitigation factors, but in this case none were sufficient to justify a lower penalty.
This decision is a reminder that uncorroborated personal claims of drug abuse are often insufficient, whether during arbitration proceedings or for the purposes of accommodation.