Failure to prove source of marijuana odour overturns a 30 days suspension

Below is Diane Maclean's summary of  Arbitrator Ronald Keras' decision issued January 23, 2012 in British Columbia Maritime Employer’s Association v. International Longshore and Warehouse Union, Canada, 2012 CanLII 5484 (BC LA) .   The case is a good illustration of  how arbitrators deal with the credibility of witnesses and what the employer must prove to establish it had just and reasonable cause to impose discipline.  

Summary

Background

The grievor had been dispatched to an employer who has a zero tolerance for alcohol and drug use on its site. The foreman entered the dock office where the grievor was working by himself. The foreman smelt the distinct odour of marijuana. He did not confront the grievor and he did not see him smoking or observe smoke in the air. The foreman contacted the head foreman who came to the trailer and also smelt marijuana. He asked the grievor if he had been smoking marijuana and he denied it. The grievor was fired and sent home. The Association also suspended the grievor from all work for a period of 30 days and warned him that future incidents could lead to further discipline and, potentially, deregistration.

The grievor said he had worked on the waterfront for over 40 years. He testified that the work site was covered by cameras and that the dock office is used by everyone and people are in and out during the night. The grievor was aware of the employer’s zero tolerance policy. He testified that he did not smoke marijuana on shift or before shift. The office contained dirty coveralls and garbage and would smell.

The union representative who met with the grievor that night said there was no smell of marijuana in the dock office when he arrive. He also testified that he works at the site 85% of the time and that it was not uncomm to smell skunk, which has a similar smell to marijuana. He also testified that the grievor did not smell or look like he was under the influence.

Analysis and Decision

The arbitrator discussed assessing the credibility of witnesses. First, to determine if there is a true conflict in the evidence and, second, if not a conflict, to arrive at an explanation for the opposite conclusions arrived at from the same set of circumstances. The arbitrator was satisfied that that the foremen believed they smelled marijuana. The arbitrator agreed that weight can be given to non-expert testimony but “such weight must take into account that they are not experts and that there is evidence of competing odours on the Neptune site”. The arbitrator was also satisfied that the grievor’s behaviour was not particularly suspicious, stating further that:

There was no evidence of the Grievor trying to conceal anything or that he was looking sheepish or guilty or that he appeared to be under the influence of having recently smoked marijuana. As a consequence the Association’s case succeeds or fails on the circumstantial odour evidence alone, whether it can be found to be the odour attributed to the smoking of marijuana and if so, can it be attributed specifically to the Grievor. It is the odour alone that is the key evidence in this case as the Foremen did not call the RCMP or Neptune Management. Consequently no one asked the Grievor to empty his pockets; there was no search of the Grievor or of the Grievor’s property. There was no evidence proffered of a search of the office for any corroborating paraphernalia or residual (roach) evidence associated with the smoking of marijuana. There were no “professional experts” involved. (McDonnell Douglas, supra)

The onus is on the Association to prove, on a balance of probabilities that the grievor smoked marijuana at work. There are two hurdles. First, is to prove to the arbitrator that the odour was of marijuana. Second, is to prove the odour was the result of the grievor smoking marijuana. Here, the Association has established a prima facie case that there was an odour and that the odour may be mariuana and the grievor was the only one in the office at the time.

Now it turns to the union to offer an explanation. The grievor denied smoking marijuana and one of the union’s witnesses testified that it was not uncommon to smell skunk, which had a similar smell to marijuana. The arbitrator commented:

In the instant case there are two possibilities that don’t involve the Grievor. One is that the odour was not as a result of someone smoking marijuana. The other possibility is that someone else may have been smoking marijuana and came into the office close to the time when Mr. Cross entered the office and stayed long enough to have the odour remain. Of course, the third possibility is that the Grievor was smoking marijuana in the dock office. For that possibility to be found more probable than not would require concluding that the first two possibilities were less probable and discounting the Grievor’s testimony about the stupidity of smoking marijuana in the dock office given the open access to the dock office and the frequency of visitors. His evidence about access and visitors was corroborated by Union witnesses and that evidence was unrefuted.

The arbitrator was not satisfied that the Association had discharged its onus in this case. He did not make a finding about the grievor’s innocence, finding instead that there was insufficient evidence to support the foremen’s conclusion that the odour was marijuana and that the odour was because the grievor was smoking marijuana in the dock office.

Certification--Continuous Work Process and scope of the bargaining unit

In Ming Pao v. CEP Local 2000 issued on February 7, 2012 the Labour Relations Board upheld the dismissal of the employer's objection to the certification of  press-room employees. While confirming that employees in one continuous work process are included in one bargaining unit, the Board u

More Discipline Arbitration Awards-- denials of wrongdoing, failure to show remorse and excessive internet usage

1) FortisBC Energy Inc. v. International Brotherhood of Electrical Workers, Local 213, [2011] B.C.C.A.A.A. No 130 (No. A-086/11)
The grievor was dismissed for having a prostitute in a company vehicle during work time. This case is interesting for its discussion about credibility. As well, the arbitrator commented on the grievor’s ongoing denial of wrong doing and its effect on the employment relationship. Arbitrator Keiras upheld the dismissal.

2) British Columbia Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, [2011] B.C.C.A.A.A. No. 123 (No. A-080/11]
 Arbitrator Irene Holden upheld the imposition of an 8 day suspension.  The grievor  was given a suspension for refusing to do work, instigating a work stoppage, and writing an inaccurate and insubordinate letter about the employer and one of its managers. Some of the issues addressed are: protection of the shop steward when involved in legitimate activities; failure to show remorse; and failure accept responsibility for his role in events. 
3) In Health Employers’ Assn. of British Columbia v. Health Sciences Assn. of British Columbia [2011] B.C.C.A.A.A. No. 125 (No. A-083/11)  Arbitrator Nick Glass overturned the disimissal of an employee for time theft and excessive internet usage. Some of the issues addressed here: technical problems in determining personal internet use at work; the distinction between time theft and wasting time; the importance of evidence showing the ability of the grievor to change his ways; and the importance of an apology and expressing remorse. In this case, the arbitrator substituted a 15 day suspension for the dismissal.

(notes:  these decisions are not yet available on CanLii but are available on QuickLaw; and also,  many thanks to Diane MacLean for her contribution)

Estoppel

I'm often asked to explain the doctrine of estoppel and how it applies in the labour relations context.  I found this nice quote in University Health Network v. Ontario Nurses Association issued two weeks ago:

54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor-    Man  Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel. The Supreme Court found that labour arbitrators are not legally bound to apply equitable and common law principles, including estoppel, in the same manner as courts of law. Labour arbitrators have a different mission, informed by the particular context of labour relations.


55. The Supreme Court cited Paul C. Weiler’s, (then) Chairman of the British Columbia Labour Relations Board, decision in Re Corporation of the City of Penticton and Canadian Union of Public Employees, Local 608, (1978), 18 L.A.C. (2d) 307 (B.C.L.R.B.), at p. 320 regarding why the doctrine of estoppel must be applied differently in a grievance arbitration than in a court of law:


    " ...a collective bargaining relationship is quite a different animal. The union and the   employer deal with each other for years and years through successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to day basis across the entire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later on takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on it face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side…."

Employer who terminated employees on LTD must pay severance

This summary was prepared by Jim Quail, Legal Director at the Canadian Office and Professional Employees Local 378.

The BC Court of Appeal today issued West Fraser Mills v USWA a decision regarding non-culpable absenteeism and human rights. 

The case concerned seven employees who had been on LTD for an extended period. The employer terminated their employment for non-culpable absenteeism, and a while later closed the mill. As a result of the termination the affected employees lost their entitlement to severance arising from the closure.

Arbitrator Emily Burke found that the terminations were motivated by the employer’s closure plans and intended to avoid having to pay the severance. While the terminations per se of the disabled employees would not have violated the Human Rights Code, the deprivation of entitlement to severance transformed them into discrimination on the basis of disability.  The arbitration award was issued in October 2010 and is available on CanLii.

The employer appealed to the Court of Appeal (appeals of the general law go to the Court under  s. 100 of the Labour Relations code; appeals based on the Labour Code or its principles go to the LRB under s. 99).  The Court unanimously upheld the award.