Pound v. iWave, 2017 PECA 17, a recent decision by the Prince Edward Island Court of Appeal, is a cautionary tale for employers about the legal issues that may arise when standard form employment policies are adopted without management fully understanding their obligations to employees in practice.read more
Illegal Drugs in the Workplace: The Test to Establish Possession
The possession and use of illegal drugs in safety-sensitive workplaces continues to be a prevalent issue in Canadian labour law. A recent decision of the Supreme Court of Newfoundland and Labrador, Communications, Energy and Paperworkers Union (UNIFOR, Local 2121) v Terra Nova Employers’ Organization, 2016 NLTD(G) 194, addresses the legal test for possession in the workplace.
Michael Noseworthy (“Noseworthy”) was employed as a millwright with Magna Services Limited (“Magna”) and worked on the Terra Nova Floating Production Storage and Offloading petroleum production platform. Magna’s Drug and Alcohol Policy (the “Policy”) prohibited the use, possession or distribution of an illegal drug by an employee “while on company facility” or “while performing company business”. The Policy also provided that disciplinary action would be imposed on employees who were found to be in possession of illegal drugs in violation of the Policy.
Upon reporting to work, Magna employees were required to pass through a security scanner before being transported to the offshore. On one such occasion, a piece of tinfoil containing a small quantity of marijuana was detected in Noseworthy’s pocket. Noseworthy denied having knowledge that the marijuana was on his person when he reported to work. Magna subsequently terminated Noseworthy’s employment on the grounds that he was in possession of an illegal drug while performing company business, in violation of the Policy.
At arbitration, Noseworthy’s evidence that he had previously used the marijuana, but had forgotten that it was in his pocket, led the arbitrator to conclude that he was in possession of an illegal drug in violation of the Policy. As such, the arbitrator dismissed Noseworthy’s grievance and upheld Magna’s decision to terminate his employment.
On judicial review, the Supreme Court of Newfoundland and Labrador set aside the arbitrator’s decision that Noseworthy was in possession of marijuana while performing company business, finding that it was unreasonable in the circumstances. In doing so, the Court noted that the legal test for possession adopted by the arbitrator required proof of actual physical possession of the prohibited substance (the actus reus) and knowledge of actual physical possession of the prohibited substance (the mens rea) “while on company facility” or “while performing company business”. As the arbitrator concluded that Noseworthy did not know the marijuana was in his pocket when he reported to work, the Court found that the second arm of the test for possession had not been satisfied. Accordingly, it could not be said that Noseworthy was in possession of an illegal drug while performing company business, in violation of the Policy.
This decision creates some uncertainty about the legal test to establish possession in the workplace and is currently under appeal.
For the full decision of the Supreme Court of Newfoundland and Labrador, please click the link below:
Communications, Energy and Paperworkers Union (UNIFOR, Local 2121) v Terra Nova Employers’ Organization, 2016 NLTD(G) 194