Published: July 17th 2014 | Source: Toronto Star
Canadian Pacific Railway is going to court to fight an arbitrator’s order that it must reinstate a locomotive engineer who tested positive for cocaine use.“The arbitrator’s decision is an outrage and, as a railroader, I am appalled we would be forced to place this employee back in the cab of a locomotive. On my watch, this individual will not operate a locomotive,” said CP’s chief executive officer Hunter Harrison in a news release.
“We have an American CEO, criticizing Canadians for our laws and the way we do things in Canada,” Doug Finnson
According to a July 14 decision issued by the Canadian Railway Office of
Arbitration, the locomotive engineer was involved in an incident on Dec.
27, 2012, where a freight train ran through a mainline crossover switch
that derailed a locomotive in a Montreal-area yard.
After the incident, he was tested, and it was determined he had cocaine in his system.
“The company is correct in its assertion, on the balance of probabilities, that the (individual) did consume cocaine at a time and of a quantity which could impact his work performance,” arbitrator Michel Picher writes.
CP fired him on Feb. 14, 2013, but his union, the Teamsters Canada Rail Conference, said the dismissal was excessive, and argued for his reinstatement, noting the Canadian Human Rights Act requires a duty to accommodate for his drug dependency.
The union did not deny the locomotive engineer has an addiction issue, with a Laval rehab centre filing documents that he is “cocaine dependent.” But the centre said he had treatment between October 2013 and March 2014, and has showed success in remaining cocaine free.
Picher said given the evidence, he sees it as appropriate to give the
individual “another chance to demonstrate his ability to be a safe and
productive employee in control of his drug dependence.”
Picher ordered the employee reinstated, without any loss of seniority, but without any compensation for any wages or benefits lost.
“It was not a catastrophe or accident,” said Doug Finnson, vice-president of the Teamsters Rail Conference of Canada. “It was a minor little screw-up.”
He added that the individual “did not get off scot-free. He will be subject to random drug testing for two years.”
Finnson argued that while any illegal drug use is not acceptable, he said that “depending on the circumstances some people are entitled to a second chance.”
Harrison, who hails from Tennessee, says this decision highlights the need for public debate, regarding the rights of an individual when employed in positions involving the safety of the public.
“Companies in Canada need the ability to carry out random drug tests as safety should trump the rights of any individual who makes the dangerous choice to place themselves, their co-workers and the general public at risk,” said Harrison, who noted railroads in the United States are required by U.S. federal law to perform random drug tests.
Finnson dismissed Harrison’s comments as a publicity stunt.
“We have an American CEO, criticizing Canadians for our laws and the way we do things in Canada,” he said, noting the human-rights policies and the Canadian system of arbitration must be respected.
Routine workplace drug and alcohol testing is not permitted in Canada because courts and tribunals have ruled that such tests to be an invasion of privacy, as well as questions around whether a positive test equal impairment.
Previous court cases have made it clear that employers have a duty to accommodate a drug or alcohol dependency, because it is considered a disability.
Debate continues about whether more random testing is needed in certain fields, such as a nuclear plant or in the Alberta oilsands.
In 2013, the Supreme Court of Canada ruled that a mandatory random alcohol testing policy imposed by Irving Pulp and Paper at a Saint John, N.B., mill was unreasonable.
The Supreme Court said a labour arbitration board was right to reject the tests because there was no evidence of an alcohol problem at the plant.
In 2011, the Toronto Transit Commission endorsed a policy for random drug and alcohol testing, but its implementation has been on hold as the Amalgamated Transit Union is challenging the move.
Brad Ross said the TTC does pre-screening of potential employees as well as testing for those involved in an accident or who may appear to be impaired in some fashion.
Union president Bob Kinnear said he recognizes the need for public safety but worries about certain individuals being singled out.
“If you are going to suggest a bus driver should be tested, should the surgeon or the police officer be tested?” he said. “How about the Prime Minister of Canada, who is making decisions, to go war or what have you?”
“If this is the direction we’re going, then we better be taking a look at any job that has a responsibility to the public,” Kinnear said. “Let’s not cherry-pick.”