AH810
Canadian Pacific Railway Company
(CP)
IN THE MATTER OF AN ARBITRATION UNDER THE Canada Labour Code, RSC
1985, c L-2.
BETWEEN:
Teamsters Canada Rail Conference
(TCRC)
-and-
Dismissal of a Locomotive Engineer
Arbitration held via videoconference on January 25, 2023.
2
3
The grievor acknowledged his RPA obligations:
I [Name redacted by arbitrator] confirm that I have received the terms outlined
in this Relapse Prevention Agreement and associated Biological Testing
Protocol. I acknowledge that I have read and understood my responsibilities to
4
…
Arbitrator: Graham J. Clarke
Date: February 9, 2023
Appearances:
TCRC:
R. Church: Legal Counsel
H. Makoski: Vice-General Chairman, LE West
B. Plant: Local Chair
CP:
L. McGinley: Manager Labour Relations, Calgary, AB
T. Gain: Legal Counsel for CP
L. Trueman: Director Global Health Services & DM for CP
S. Kumasi: Manager Health Services Programs for CP
TABLE OF CONTENTS
Background ..................................................................................................................... 3
Chronology of facts ......................................................................................................... 4
Analysis and Decision ..................................................................................................... 8
Hair follicle testing evidence ........................................................................................ 8
Did the grievor violate the RPA? ................................................................................ 11
Did CP follow the procedure in its RPA? ................................................................... 12
Was there an expansion? ...................................................................................... 12
The grievor’s alleged breaches .............................................................................. 13
Did Health Services conduct a review under the RPA? ......................................... 15
What is the appropriate remedy? ............................................................................... 19
Disposition..................................................................................................................... 19
Award
BACKGROUND
- On March 22, 2022, the parties signed a Memorandum of Settlement (Appendix 2)
(MOS) revising the arbitration process in Article 41 of their collective agreement. The
arbitrator agreed to hear 4 Ad Hoc cases in 2022 and a further 8 in 2023 on the condition
that the parties would plead no more than 2 cases per day.
- The TCRC requested that this award be anonymized given the sensitive medical
information on file. CP did not object. The arbitrator will accordingly only refer to the
“grievor” in these reasons.
- CP terminated the grievor, who worked as a locomotive engineer (LE), after a
positive hair follicle test authorized under a Relapse Prevention Agreement. CP alleged
that it had just cause to terminate the grievor in these circumstances. CP submitted an
expert report which concluded that the positive test could not have come from, despite
the grievor’s speculation, a Hemp Cream product 1 made by the Body Shop.
- The TCRC argued no just cause existed given the grievor’s explanation of the
result and other negative substance tests. It also argued that hair follicle testing was
unreliable and subject to false positives. In the alternative, it argued that CP had failed to
respect its obligations under the Relapse Prevention Agreement and the grievor should
be reinstated on conditions.
- For the reasons which follow, the arbitrator has concluded that CP met its burden
to demonstrate that the grievor tested positive for purposes of the Relapse Preventing
Agreement. However, CP led no evidence about the steps that agreement required it to
take following a relapse. The arbitrator accordingly will reinstate the grievor with
conditions but without compensation.
1 TCRC Exhibits; Tab 4
CHRONOLOGY OF FACTS
6. The arbitrator has considered the entire Record and merely highlights some of the
key facts below for ease of reference.
- September 7, 2010: CP hired the grievor.
July 25, 2019: The grievor agreed to a Relapse Prevention Agreement (RPA) 2.
Some of the terms included:
The medical reports and documents regarding your [Redacted] have been
reviewed. This Relapse Prevention Agreement is an important component to
assist you in maintaining your stable and abstinent recovery. It is also required
to support your ongoing fitness for work in a Safety Critical Position, Safety
Sensitive Position. This Relapse Prevention Agreement is for a period of two
years. You are required to review and acknowledge that you understand and
agree to the terms of this Relapse Prevention Agreement.
- (Bold in original)
- The parties redacted most of the RPA’s terms except for the following regarding a
Biological Testing Protocol:
Participate in a Biological Testing Protocol as outlined in Appendix One to this
Agreement including reading and acknowledging the participant information
when Monitoring with EtG/EtS included with this agreement.
- support my stable, abstinent recovery and my ongoing fitness to work.
The RPA contained a summary of the Biological Testing Protocol which included
hair testing:
As part of your biological testing protocol, you will undergo urine and/or hair
- testing for alcohol and drugs. Please review the following information including
2 TCRC Exhibits; Tab 3 (Both parties provided only a redacted version of the RPA)
the participant information when monitoring with EtG/EtS as this will be part of
your testing.
A positive test result reported to Health Services, will prompt a review of
your fitness to work in a Safety Critical or Safety Sensitive Position and
will result in an updated Fitness to Work Assessment.
(Emphasis added)
5
6
For your violation of the CP Alcohol and Drug Policy and your Relapse
Prevention Agreement as evidenced by your positive test result for biological
monitoring on January 19, 2021.
June 8, 2021: CP responded to the grievance 9 and confirmed the termination:
After thorough review of the grievance at hand and all of the information relevant
to [the grievor’s] discipline, the company has proven and confirmed that [the
grievor] was culpable for his violation of the CP Alcohol and Drug Policy and his
Relapse Prevention Agreement.
12. October 2020: The grievor had tested negative under RPA testing 3.
December 11, 2020: Following an alleged rules violation, the grievor had a
- negative post-incident test 4.
January 19, 2021: The grievor underwent biological monitoring testing pursuant
to the RPA. His initial test result was “Positive for CarboxyTHC. Quantitative level = 1.9
pg/10mg” 5. A testing of a second sample later took place with this result: “Positive for
- CarboxyTHC. Quantitative level = 1.8 pg/10 mg”6.
February 16, 2021: CP conducted its investigation interview which included these
QA extracts:
28. According to Appendix C the Non-DOT Drug Test Results taken on January
19, 2021 and submitted to the Company on January 28, 2021 it states that the
Biological Monitoring test produced from a Chest Hair of yours provided a
quantitative level of 1.9 pg/10mg for Carboxy THC. Is this Correct?
A. Yes
In Appendix C under the Psychemedics Alcohol Reference Ranges the
- confirmation cutoff level for Carboxy THC is 1 pg/10 mg. Is this correct?
A. According to this document
- …
3 TCRC Exhibits; Tab 28
4 TCRC Exhibits; Tab 10. See also TCRC Brief at paragraphs 50-51.
5 TCRC Exhibits; Tab 5
6 TCRC Exhibits; Tab 6
- According to the Interview performed by Dr. Iris Greendwald as listed in
Appendix C you stated that there had been no marijuana use since mid 2018.
That you had a recent PIN urine and salvia test that were negative. You had a
hair test done of chest hair 3 months ago that was also negative. ls this correct?
A. That is correct
…
Furthermore in Appendix C it states that you use hemp cream from the Body
- Shop on your foot. Is this correct
A. Yes
Does the hemp cream from the Body Shop that you use contain Carboxy
- THC?
A. I don't know, but the cream does contain Cannabis Sativa Seed Oil but I am
not sure if that contains THC
- When did you start using the Body Shop hemp cream?
A. September 2020
- How often do you use the hemp cream?
A. Once or twice a week.
…
[Name redacted by arbitrator] as you have stated in Appendix C that you
have not consumed marijuana since mid 2018., can you please explain why this
Biological monitoring testing confirmed that there was a positive carboxy THC
- in your donor samples?
A. I cannot explain it. To my knowledge, I did not ingest or use any cannabis
products except for topical application of hemp cream.
…
Appendix B states A positive test result reported to Health Services, will
prompt a review of your fitness to work in a Safety Critical or Safety Sensitive
Position and will result in an updated Fitness to Work Assessment. ls this
- correct?
A. Yes
- March 4, 2021: CP dismissed the grievor via a Form 104 7:
Please be advised that you have been dismissed from company service for the
following reason(s):
17. April 9, 2021: The TCRC grieved the termination at Step 1 8 and expressly referred
CP to the arbitration award AH717 and the commentary therein about false positives in
hair follicle testing.
In all, the grievance has not raised any considerations that give the Company
reason to disturb the discipline assessed. The Company's position continues to
be that the discipline assessed was just, appropriate and warranted in all the
7
8
…
- circumstances. Based on the foregoing, the grievance is respectfully declined.
August 6, 2021: The TCRC filed a Step 2 grievance 10 contesting the termination.
- It again referred to AH717 and its concerns about the reliability of hair testing results.
October 20, 2021: CP’s response maintained its position on the grievor’s
termination:
The Union argues the hair follicle test conducted is unreliable and therefore the
company is not free to dismiss the grievor. The Company cannot agree with this
statement and maintains the hair follicle testing holds substantial evidence and
that a positive hair follicle test is a violation of the Relapse Prevention
- Agreement.
7 CP Exhibits; Tab 1
8 TCRC Exhibits; Tab 13
9 TCRC Exhibits; Tab 14
10 TCRC Exhibits; Tab 15
- January 6, 2023: The parties signed a Joint Statement of Issue (JSI) which
allowed this matter to proceed to arbitration under the terms of the March 22, 2022 MOS.
The MOS requires a JSI as a condition precedent for access to this supplementary
arbitration process.
ANALYSIS AND DECISION
22. Neither party pleaded this case as one involving the duty to accommodate 11 but
rather as a disciplinary matter.
- This case raises two key issues. First, did the grievor violate the RPA? Intertwined
with this issue is how the arbitrator should interpret the “evidence” about hair follicle
testing. Second, if the arbitrator determines that the grievor breached the RPA, did CP
fail to respect its own RPA obligations?
Hair follicle testing evidence
24. These sophisticated parties have significant experience with expert evidence 12.
- The parties exchanged their initial Briefs on January 19, 2023 for this January 25,
2023 arbitration. CP included in its Brief an expert report dated January 16, 2023 from
Dr. Melissa Snider-Adler 13. That report addressed, among other things, the arbitration
award AH717 14 and comments attributed therein to her. In its Step 1 and Step 2
grievances, the TCRC had raised AH717 to support its concerns about false positives in
hair follicle testing.
While the arbitrator may be wrong, it does not appear that the TCRC had any
knowledge of this January 16, 2023 expert report, or the request for it, prior to receiving
- CP’s Brief. The TCRC’s January 19, 2023 Brief made no reference to it.
In AH793 15, the arbitrator raised concerns about the late production of medical
evidence:
52. In the Introduction to this award, the arbitrator expressed concern about
- the disclosure in this case. The expedited railway model of arbitration, which,
11 TCRC Exhibits; Tab 1: JSI. CP’s case law suggested other employers apply a human rights analysis,
infra.
12 See, as just one example, AH663: Teamsters Canada Rail Conference v Canadian Pacific Railway, 2019
CanLII 89682.
13 CP Exhibits; Tab 14. The report does not indicate when CP asked for this opinion.
14 http://arbitrations.netfirms.com/adhoc/AH717.pdf
15 Teamsters Canada Rail Conference v Canadian National Railway Company, 2022 CanLII 102424
when it works, can hear multiple cases in a single day, cannot function without
proper disclosure and a complete Record.
61. While the arbitrator has significant concerns about the TCRC’s June
2022 failure to respect its agreement and produce relevant medical information,
CN did not satisfy the arbitrator that it could not have investigated Mr. Weseen’s
2019 request for accommodation. That investigation would have allowed CN to
evaluate Mr. Weseen’s past efforts to treat his addictions and eliminated the
need to rely on inferences in its Brief.
…
92. The arbitrator has raised certain concerns about how this matter
transpired. The parties seemed to argue different cases in their Briefs. The
Record only crystallized a few days before the arbitration. This scenario can
negatively impact both the success of the railway model of arbitration and an
arbitrator’s ability to conduct a fair hearing.
51. The arbitrator ultimately does not need to resolve this objection given
the lack of reasonable grounds to test Mr. Calibaba. However, the arbitrator
reminds both parties of the importance of the Record in these matters and the
systemic harm the late filing of information can have on this expedited
arbitration process.
9
10
Additionally, even cannabis products containing THC being used topically (as a
cream), are not expected to result in a positive drug testing, including hair
testing, for THC or THC metabolite. This is reviewed in more detail below.
11
12
32. The parties benefit from an extremely efficient expedited arbitration system.
In order to obtain those benefits, they have negotiated clear provisions which
require that all issues be identified and discussed during the grievance
procedure. A vague oral reference to alcohol and 3 AA meetings during the
investigation, especially given the IBEW’s burden of proof for prima facie
discrimination, infra, was insufficient for CN to know that Mr. S alleged that his
rights under the CHRA had been violated. Documentation was only produced
for this issue roughly 18 months after Mr. S’s termination.
28. In AH807 16, a similar issue arose. Ultimately, the arbitrator did not have to resolve
an objection about the addition of new medical evidence just prior to the arbitration:
50. CP objected to the TCRC, 2 days before the hearing, filing a December
12, 2022 note from Mr. Calibaba’s doctor providing information about his
medications. During the investigation, Mr. Calibaba had refused to consent to
providing verifying documentation about his use of diuretics, despite relying on
them as an explanation for certain events which occurred.
29. Since there was no objection to the timing of the disclosure to Dr. Snider-Adler’s
report (Expert Report), the arbitrator will not comment further on that specific aspect of
the case. However, from a systemic point of view, the arbitrator reiterates the concerns
previously expressed about the late filing of medical information. This impacts the
success of the parties’ railway model and an arbitrator’s ability to ensure a fair hearing.
This same concern exists if a party waits until just prior to an arbitration before obtaining
clearly relevant medical or expert evidence.
16 Teamsters Canada Rail Conference v Canadian Pacific Railway Company, 2022 CanLII 120899
- The Record for this arbitration contains the following evidentiary challenges for the
arbitrator. The Record has i) a single new Expert Report; ii) expert reports from AH717,
a case in which both doctors testified 17, and iii) references to a few reported decisions
about hair follicle testing.
- The arbitrator has considered the TCRC’s objection to the merits of the Expert
Report 18. Given the broad scope of s.16(c) of the Code, the arbitrator has decided to allow
the Expert Report into evidence. For several reasons, the TCRC did not persuade the
arbitrator to disregard the Expert Report.
First, arbitrators have accepted Dr. Snider-Adler as an expert witness before 19.
This does not mean that she can testify about any subject, but the arbitrator is satisfied
for current purposes that she does have the requisite expertise in the drug testing area
- which is central to this case.
Second, the arbitrator understands the TCRC’s concern when CP posed a leading
question to Dr. Snider-Adler about AH717:
4. Finally, can you provide commentary on the back and forth in the Mark Smith
case and the arbitrator’s quoting of Dr. Rosenbloom? I believe Dr. Rosenbloom
misrepresented/ inaccurately summarized your findings in making the foregoing
statement, but given the particulars of that case, the specific sentence was not
- the focus for your reply. Can you confirm this?”
There are clearly better ways to ask this expert about comments attributed to her
in AH717. Nonetheless, despite the framing of CP’s question, Dr. Snider-Adler’s response
- to the comments attributed to her in AH717 remain relevant to this arbitration.
Dr. Snider-Adler commented in the Expert Report that the opposing expert had
misrepresented her position on “false positives”. In her view, the chance of a “false
- positive” was negligible in the circumstances of this case. The arbitrator is not prepared
17 In this case, the arbitrator upheld the TCRC’s objection when CP attempted to call Dr. Snider-Adler during
its Reply. The time to do that was during its case in chief when the TCRC would still have an opportunity to
cross-examine and comment.
18 TCRC Reply Brief; paragraphs 4-39.
19 See, for example, CROA 4798.
to prefer the comments made in AH717 given the subsequent comments from Dr. Snider-
Adler in the Record in this case.
Third, while the TCRC contested the merits of the Expert Report, and pointed to
what it considered some internal inconsistencies, the arbitrator accepts its general
conclusion about the topical Hemp Cream product, given the lack of evidence to the
- contrary.
- Fourth, the arbitrator has not been persuaded to prefer Dr. Rosenbloom’s expert
report from AH717 over that produced by Dr. Snider-Adler for this case. Similarly, while
the TCRC referred to railway and other cases which raised questions about the reliability
of hair follicle testing, the arbitrator has not been persuaded to take judicial notice of them
and prefer them to the Expert Report in this case.
The parties can debate this medical issue again in a future case should the need
- arise.
Did the grievor violate the RPA?
39. The grievor had no explanation for his two positive tests other than referring to the
Hemp Cream product he used. The Expert Report before the arbitrator indicates that 20:
In this case, [the grievor] advised that he was using hemp cream from The Body
Shop. All hemp products sold through The Body Shop (as can be found on their
website) state that their hemp products contain hemp seed oil. Again, the seeds
of the hemp plant do not contain THC or CBD (or other cannabinoids). These
would not result in a positive test for THC metabolite.
40. While CP had the burden of proof in this case, the TCRC did not present any
evidence to explain away the positive tests. On a balance of probabilities, CP
demonstrated that the grievor had conducted himself in some way which resulted in his
two positive tests.
- But that does not end the analysis.
20 CP Exhibits; Tab 14; Page 6 of 23.
Did CP follow the procedure in its RPA?
Was there an expansion?
42. CP suggested that the TCRC expanded the issues in this arbitration when it argued
that CP had failed to follow its own obligations under the RPA. The arbitrator disagrees
that any expansion took place.
First, CP alleged that the grievor had violated the RPA. That makes the RPA itself
one of the issues in this arbitration. The TCRC remains fully entitled to review the RPA’s
- language and argue that CP failed to follow its own obligations under that agreement.
Second, the JSI does not require the parties’ arguments, only the facts and the
issues 21:
The joint statement of issue referred to in clause 7 hereof shall contain the facts
of the dispute and reference to the specific provision or provisions of the
collective agreement where it is alleged that the collective agreement had been
- misinterpreted or violated.
The TCRC regularly, as it has again done in this case 22, provides CP with its full
position via the steps in the grievance procedure. If CP suggests it can rely on the RPA
to support a just cause termination, then the TCRC can argue that the very same
- document prevents it from doing so.
- Third, the difference between issues and arguments is not always clear. Railway
arbitrators will prevent unfairness in situations where one party has expanded the issue
and caused prejudice to the other. For example, an improper expansion may occur when
a party raises a new issue that had not previously been candidly explored between the
parties. This occurred in AH689 23:
31. The arbitrator agrees with the sentiments expressed by these experienced
railway arbitrators. The situation may well be different in regular arbitration
where the parties have not negotiated the types of procedures which exist in
this expedited regime. A regular labour arbitration system can also take many
21 CROA MOA, paragraph 10.
22 TCRC Exhibits; Tabs 13 and 15.
23 Canadian National Railway Company (CN) v International Brotherhood of Electrical Workers System
Council No. 11, 2019 CanLII 123925
days to hear a single grievance, which allows for more leeway than does the
parties’ expedited regime in this case.
33. There is further prejudice which can arise from the addition of a new issue
close to the arbitration date. CN could not explore that issue during its
investigation or conduct a timely supplementary investigation. The arbitrator
notes further that the CHRA contains time limits for complaints.
34. The IBEW expanded its grievance beyond that which was discussed
throughout the grievance procedure. The arbitrator accordingly upholds CN’s
objection. This conclusion, however, would not apply to situations where a party
was willfully blind to a clear duty to accommodate situation.
13
17. In AH633, the arbitrator upheld an LE’s termination due to his
testing positive for cocaine when at work. Arbitrator Moreau came to a
similar conclusion for impairment in CROA 4733:
47. The arbitrator dismisses the argument that the TCRC cannot rely on the precise
terms of the RPA when arguing its case.
The grievor’s alleged breaches
48. CP alleged in the JSI and in its Form 104 that the grievor had violated both the “CP
Alcohol and Drug Policy” (Policy) and the RPA.
For the Policy issue, CP did not suggest that the hair follicle test showed the grievor
had been impaired while on duty. Railway case law is relatively consistent regarding the
possible consequences for a railroader who works when impaired, subject to human
rights obligations 24 [Footnotes omitted]:
23. This case is not about CP’s legitimate concerns over safety. A railway
is an inherently dangerous undertaking. There have been tragic deaths in this
industry. The Criminal Code and the Canada Labour Code have been amended
in recent years to increase everyone’s safety obligations.
- The arbitral jurisprudence has long reflected the serious consequences
- for railway employees who work while impaired. As AH734 indicated, railway
24 AH807: Teamsters Canada Rail Conference v Canadian Pacific Railway Company, 2022 CanLII 120899
at paragraphs 23-26.
arbitrators apply a presumption that termination constitutes the appropriate
penalty for employees who work while impaired:
For all the above reasons, I regrettably must dismiss the
grievance. There is simply too much risk to the Company and the
public when an employee in a safety- sensitive position like the
grievor reports to work in an impaired condition, in violation of the
Company’s drug and alcohol policy and CRO Rule G, and then
goes on to carry out his assigned duties. The grievor’s long
service, coupled with his forthright answers throughout this matter,
is unfortunately insufficient for the arbitrator to consider
reinstatement. The grievance is dismissed.
18. In all these cases, arbitrators consider whether compelling
circumstances outweigh the prima facie disciplinary response of dismissal
and the importance of deterrence:
54. The IBEW did not persuade the arbitrator to intervene in the
instant situation where a short service employee, working in a
safety sensitive position, consumed alcohol and then drove two of
CN’s vehicles. The standard disciplinary response for such
conduct is termination, absent compelling grounds for mitigation.
19. Despite its best efforts, the TCRC did not persuade the arbitrator
that compelling grounds existed to change Mr. Moore’s termination into a
lesser penalty.
20. While Mr. Moore no doubt regrets the August 1, 2020 event, the
arbitrator concludes that his actions have irreparably broken the essential
bond of trust that CN must have in its generally unsupervised LEs. Mr.
Moore put himself, his colleagues, CN and the general public at risk by
operating his train while impaired by cocaine.
21. The suggested mitigating factors of regret, an apology and 15
years service remain insufficient to counter the seriousness of operating
a train in this condition. Similarly, Mr. Moore had 55 demerit points,
including the August 1, 2020 “failure to properly secure your power”
incident, which provides no support for mitigating the penalty.
14
37. The “unimpaired” line of cases has commented on the implications
flowing from a negative oral swab test. For example, in CROA&DR 4524, the
arbitrator noted:
25. The applicable legal analysis changes if a person suffers from a
disability, a scenario which involves, inter alia, the burden to demonstrate that
undue hardship exists.
- However, as AH706 25 summarized, a different result occurs if an employee
violated a drug policy but was not impaired while at work:
36. The facts do not support BTC’s suggestion that the “impaired” line of
cases apply to Mr. Ouimet’s situation. Unlike in CROA&DR 4527, Mr. Ouimet’s
oral swap test came back negative. Railway arbitrators have consistently
concluded that this test result signifies the individual was not impaired. BTC had
to demonstrate that the “impaired” line of cases applied to Mr. Ouimet. It failed
to meet this burden when it referred to its amended 2018 Policy but without
providing evidence of impairment as well.
24. CP had the burden of proof to demonstrate that Mr. Playfair was
impaired at the time of the November 15, 2015 incident. As numerous
CROA decisions have already noted, it is not enough to show that a urine
test indicates an employee may have traces of marijuana in his/her
system. Those results do not demonstrate impairment at the material
times. In Mr. Playfair’s situation, he tested negative for the more specific
oral fluid drug test.
25. CP’s position, as set out in its policy and as argued, posits that
employees should never take illegal drugs. But the case law has not
upheld a policy that extends that broadly.
15
One of the terms of the Continuing Employment Reinstatement
Agreement is found in paragraph 5 of that agreement:
51. Since CP put forward no evidence about the grievor being impaired while on duty,
the Policy provided no grounds to terminate the grievor.
Did Health Services conduct a review under the RPA?
52. The arbitrator agrees with the TCRC that the RPA is not a last chance agreement.
Rather, the agreement exists to assist an employee who previously had some sort of
addiction issue. In the RPA, the grievor agreed to random testing and to provide highly
sensitive personal medical information, subject to proper safeguards. In exchange, CP
allowed him to continue to work in a safety sensitive position.
While the RPA by itself, depending on the circumstances, may not prevent
- termination, it nonetheless includes a process that CP had undertaken to follow26:
25 Bombardier Transportation Canada Inc. v Teamsters Canada Rail Conference, 2020 CanLII 53040
26 TCRC Exhibits; Tab 3; Page 34/386.
A positive test result reported to Health Services, will prompt a review of your
fitness to work in a Safety Critical or Safety Sensitive Position and will result in
an updated Fitness to Work Assessment.
- CP provided no evidence about this process taking place. The capitalization of the
term “Fitness to Work Assessment” (FWA) in the RPA suggests a specific form exists at
CP. The RPA contemplates that Health Services will review a positive test result and then
provide an updated FWA. The grievor’s testing levels would presumably constitute one
of the factors Health Services would examine during its review.
Instead, CP appeared to justify the grievor’s termination solely on the basis that
the positive tests violated the RPA. CP relied on CROA 4352 27 to support the termination
- of an employee whose hair sample had tested positive.
- However, that case examined a situation involving another positive test after an
earlier first violation of an RPA:
On April 17, 2013 the results of a controlled substance test (a hair sample)
showed positive for oxycodone. Under the terms of the Relapse
Prevention Agreement, management was advised of this result on May 9,
2013. As a result, on May 13, 2013, the grievor signed a Continuing
Employment Reinstatement Agreement. As part of the Continuing
Employment Reinstatement Agreement the grievor was required to
execute another Relapse Prevention Agreement, which he did on June 6,
2013. The grievor complied with the counselling requirements under the
Continuing Employment Agreement. He also was required to undergo drug
testing.
Should you fail to comply with the full terms of this contract,
including compliance with the Relapse Prevention Agreement, you
will be discharged from CN and will not be eligible for continuing
employment/reinstatement.
(Emphasis added)
16
3. The Chief Medical Officer, taking into consideration your specific
medical condition, will establish a Relapse Prevention Agreement. For the
duration of this contract, you are required to comply with the terms of
medical treatment and rehabilitation for your condition, as established in
a Relapse Prevention Agreement, listing all necessary behaviours
expected of you. These necessary behaviours include total abstinence
from all substances, both on and off duty, and all other requirements for
treatment, counselling, medical examinations, and blood, urine, hair,
breath and any other biolological tests. If you do not comply with the terms
of your Relapse Prevention Agreement, the Chief Medical Officer will
report this non-compliance to CN and you will be considered in breach of
this contract.
57. In CROA 4352, the arbitrator refused to reinstate the employee after yet another
positive test:
27 CROA 4352
Therefore, having regard to the specific facts of this case, the continuing
employment contract, the obligations of accommodation to the point of undue
hardship, the material relied upon by the Union and the grievor’s safety critical
position, the Company cannot be required to reinstate the grievor.
In another case CP put forward, CROA 4576 28, a similar scenario occurred
following an employee’s first violation of an RPA:
On February 12, 2015 the grievor failed a random test and was reported
as being in violation of his Relapse Prevention Agreement. He was not
terminated. Instead, after meeting with his Superintendent, he was
allowed to continue work if he signed agreements called “Continuing
Employment Contract for Safety Sensitive and Safety Critical Position for
Employees with a Substance Use Disorder.” This second form of
agreement provides, in clear terms:
…
5. Should you fail to comply with the full terms of this contract,
including compliance with the Relapse Prevention Agreement, you
will be discharged from CN and will not be eligible for continuing
employment or reinstatement.
17
What he did not do, and by clear implication cannot be further trusted to
do, is to come forward and advise the Employer of his use of alcohol or
drugs before going to work as a locomotive engineer. In these
circumstances, with such a demonstration of a lack of trustworthiness, it
is quite justified for the Employer to invoke the consequence of the
agreement, which is termination. Weighing the grievor’s right not to be
discriminated against due to his substance abuse, the safety critical
nature of the job, the effort at cover up, and the accommodation already
offered, I am persuaded that the Employer has reached the point of undue
hardship. Further, the grievor has never established that this alcohol
consumption, contrary to his agreement, was caused by a relapse in his earlier
cocaine addiction. In these circumstances, despite the several positive things
properly said in his favour, I find I must dismiss the grievance.
- (Bold text added; underlining in original)
In CROA 4576, Arbitrator Sims, following another positive test, upheld the
employee’s termination:
The type of agreement the grievor entered into accommodates substance
- dependency, but it does so on conditions. The one condition is
28 CROA 4576
abstinence, but the other is a willingness to be forthcoming and truthful
in the event of any breach or relapse. Here the grievor, following his first
relapse, was given a further chance. Following that, it turns out, he
voluntarily consumed alcohol. He did not disclose this before going to work.
He was randomly tested and then investigated. He did not attribute the test
results to his addiction, or to any relapse. Instead, he concocted an incredible
story putting the blame on his partner. The medical officer and the Company
both, quite understandably, disbelieved his story. He later confessed that it was
not true.
(Emphasis added)
18
19
20
60. The arbitrator notes that both cases CP submitted examined the situation from a
duty to accommodate perspective.
CP, unlike in the cases on which it relies, did not follow its own obligations in the
RPA. There is no Health Services analysis in the Record. Neither did Health Services
provide an updated FWA. CP instead applied a discipline analysis and equated an RPA
- breach with just cause for termination. The legal analysis does not support this position.
To the extent CP relies on the argument that the grievor had to come forward first
before it had to follow its own RPA obligations, the arbitrator must dismiss it. First, the
RPA contains no such distinction. Secondly, that argument, which has been made in the
- context of the duty to accommodate, has not persuaded arbitrators 29.
29 See, for example, AH793: Teamsters Canada Rail Conference v Canadian National Railway Company,
2022 CanLII 102424 at paragraphs 67-79.
- CP did not demonstrate it had just cause to terminate the grievor’s employment.
Nonetheless, it did demonstrate that the grievor violated his RPA and his suggested
explanation did not stand up to scrutiny. The arbitrator must fashion an appropriate
remedy.
What is the appropriate remedy?
64. The arbitrator has concerns about the grievor’s candour given his work as an LE.
The evidence in the Record provides no reasonable explanation for the positive test other
than consumption.
However, CP failed to follow the procedure contained in its RPA. It instead treated
- an RPA violation as providing just cause.
To protect both parties’ interests, the arbitrator will reinstate the grievor, but on the
following conditions:
CP will reinstate the grievor, without loss of seniority, but without
- compensation for any wages and benefits lost;
The grievor will not return to CP until its Health Services has confirmed he is
fit to work after the reasonable and appropriate testing for substance addiction
- which that staff deem appropriate;
For a two-year period starting from the grievor’s return to work at CP, he will
be subject to random, unannounced drug and alcohol testing, to be
- administered in a non-abusive fashion;
The parties will prepare a “Last Chance Agreement’ or a “Continuing
Employment Reinstatement Agreement”, if they use that type of document,
- which incorporates these conditions and any human rights obligations; and
If the grievor violates any of the conditions, he shall be liable to termination
with recourse to arbitration only for the purpose of determining whether a
- violation of these conditions occurred.
DISPOSITION
67. The arbitrator has raised procedural concerns about the disclosure in this case.
Only full disclosure allows the railway model to hear, in a procedurally fair way, multiple
cases in a single day.
- CP demonstrated that the grievor tested positive while subject to the RPA. The
Record discloses no innocent explanation for that result.
However, because CP did not follow the RPA’s process, the arbitrator has decided
- to reinstate the grievor with appropriate conditions.
- The arbitrator remains seized for any issues which arise from this decision.
SIGNED at Ottawa this 9th day of February 2023.
Graham J. Clarke
Arbitrator