Employers are increasingly taking a “zero tolerance” approach in which a minimum level of discipline – whether a suspension or dismissal – is imposed for certain serious safety violations. In a recent case, an arbitrator criticized the approach as unfair to the employee.

Plant security, conducting a random vehicle search as the employee left the premises, found a partially-consumed bottle of flavoured vodka beneath some camping equipment in the trunk of the vehicle.  The employee co-operated in the search, expressed surprise at the presence of the bottle, and voluntarily submitted to drug and alcohol testing, the results of which were negative.

The employee explained that he had borrowed his wife’s vehicle when his vehicle would not start, and that his daughter had previously borrowed his wife’s vehicle for a camping trip and had apparently not unpacked the trunk. He confirmed this on a call to his daughter in the presence of plant security. He said that he was unaware that the bottle was in his trunk when he drove to work.  The employer admitted, at arbitration, that it had no reason to disbelieve the employee.

The company suspended the employee for three days.

The company said that it had a zero tolerance policy on possession of alcohol on plant property, calling for a minimum three-day suspension.  The company’s “Rules of Conduct” stated that “Possession and/or consumption of alcohol and/or illicit drugs on Company property” would be “subject to severe discipline, up to and including discharge”.  All parties agreed that the workplace was safety-sensitive.

The arbitrator referred to “zero tolerance in the broader sense of requiring that each and every incident be investigated and addressed”, in contrast to zero tolerance “in the narrow sense of an automatic penalty for every violation regardless of the circumstances.”  He stated, “Zero tolerance in the latter sense has been held to be inconsistent with the just cause standard, so that a rule that would otherwise pass the KVP test must fail on the ?rst criterion of consistency with the collective agreement”.

In conclusion, the arbitrator agreed that the company had just cause to discipline the grievor for violation of the rule against possession of alcohol on company property.  He concluded, “I accept that in the interest of workplace safety the Company is justi?ed in adopting an approach of zero tolerance for breaches of that rule, to the extent that each and every incident is to be investigated and appropriate discipline imposed. I reject the imposition of an automatic penalty of suspension without regard to the totality of the circumstances as inconsistent with the just cause standard set out in the collective agreement.”

U.S. Steel v United Steelworkers, Local 1005, 2014 CanLII 50003 (ON LA)