Tuesday, February 21, 2012

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.  



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.

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