In Passamaquoddy Lodge v CUPE Local 1763 2016 NBQB 056 the Court of Queen’s Bench upheld an original arbitration decision condemning an employer for suspending an employee pending the outcome of a psychiatric evaluation.read more
Intention Irrelevant in Breach of Drug and Alcohol Policy
Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7
The grievor was employed by Magna Services Limited as a millwright on a “call in” basis on the Terra Nova offshore petroleum production platform. His employment was terminated for non-compliance with the employer’s Drug and Alcohol Policy (the “Policy”) when a small amount of marijuana was found in the pocket of his jeans during a screening prior to boarding a helicopter for transport to the offshore Terra Nova platform.
The Policy strictly prohibited the possession of illegal drugs, including marijuana, and provided for the application of disciplinary action if an investigation into an incident confirmed that an employee was found to violate the policy through the possession of illegal drugs.
The grievor did not dispute that the marijuana was in his possession, but argued that he did not know how the marijuana got in his pocket. An investigation into the incident was conducted and the grievor was informed that he was removed from the recall lists and would not be recalled for further employment.
At arbitration, the arbitrator accepted the employer’s disciplinary action, stating that the grievor did not offer an alternative explanation as to how to marijuana was in the pocket of his jeans.
On judicial review at the Supreme Court of Newfoundland and Labrador, Trial Division, the judge set aside the arbitrator’s decision on the basis that it was unreasonable, as the grievor lacked the requisite intention (mens rea) for possession in violation of the Policy.
Newfoundland and Labrador Court of Appeal Decision
The Newfoundland and Labrador Court of Appeal noted that the Policy provides a basis for disciplinary action against an employee, and as such, the arbitrator correctly adopted an approach that incorporated the concept of strict liability: the doing of the prohibited act is sufficient to establish non-compliance with the Policy. At that point, the employee has the burden of demonstrating that he took all reasonable care to ensure that he did not breach the Policy. Therefore, the concept of mens rea is not engaged.
As a result, the Court of Appeal held that the applications judge did not assess the reasonableness of the arbitrator’s approach, but rather erred by incorporating the element of mens rea into the assessment of the arbitrator’s decision.
The Court of Appeal stated that once the marijuana was found in the grievor’s pocket, constituting a breach of the Policy, the employee would have had to establish that he had taken all reasonable care to ensure that he was not in possession of the marijuana, and therefore not in breach of the Policy, in order to avoid disciplinary action. The Court of Appeal agreed with the arbitrator’s decision that the employee did not establish that he had taken all reasonable care to ensure the breach did not occur, as he did not meet the standard of the reasonable person in similar circumstances.
The Court of Appeal restored the decision of the arbitrator and thus, the disciplinary action was confirmed.
Takeaway for Employers
Where a Drug & Alcohol Policy provides for disciplinary action in the event of a breach of the Policy, the employee’s mens rea, or intention, is not relevant. The incident is to be assessed on the basis of strict liability as the doing of the prohibited act constitutes a breach. Thus, to avoid disciplinary action, the employee must show that he or she took all reasonable care to prevent the breach. The standard to which a particular employee is to be evaluated is that of the reasonable person in similar circumstances.