Recently in Communications, Energy and Paperworkers Union (UNIFOR, Local 2121) v. Terra Nova Employers' Organization, 2016 CanLII 85306 (NL SCTD), the Supreme Court of Newfoundland and Labrador quashed the decision of an arbitrator that had determined that an employer was justified in terminating an offshore union worker’s employment after he was found to be in possession of marijuana in contravention of the employer’s Drug and Alcohol Policy. In quashing the decision, Justice Burrage held that the decision of the arbitrator was unreasonable. Justice Burrage noted that while the worker was in actual possession, as the marijuana was found in his pocket, the wording of the employer’s Drug and Alcohol Policy required that the worker "know" that he had possession of the marijuana while he was on a company facility or was performing company business.

Background

The worker (the Worker) was employed by Magna Services Limited (Magna) and was part of the UNIFOR, Local 2121 union. He worked on the Terra Nova offshore petroleum production platform, located off of Newfoundland. The offshore work environment is extremely hazardous, which has led employers working in that environment to adopt strict policies prohibiting illegal drugs or alcohol, regardless of the quantity. Magna had adopted a Drug and Alcohol Policy (the Policy) which provided that the possession of an illegal drug by an employee “on a company facility” or while “performing company business” was prohibited.

After receiving a call from Magna to report to Work, the Worker arrived at a helicopter facility for transport to the offshore petroleum platform. While passing through security, a small piece of tinfoil was found that included a small quantity of marijuana. The Worker denied knowing that the marijuana was in his pocket. Magna later terminated the Worker’s employment on the grounds that he was in possession of an illegal drug, contrary to the Policy. UNIFOR, Local 2121 filed a grievance on the Worker’s behalf.

The grievance (the Grievance) was heard by a sole arbitrator (the Arbitrator). In his award, the Arbitrator dismissed the Grievance and upheld the decision of Manga to terminate his employment. In the Arbitrator’s decision, the Arbitrator quoted Resource Development Trades Council of Newfoundland & Labrador v. Voisey's Bay Employer's Assn. Inc. (2004), 134 L.A.C. (4th) 323, [RDC], a decision that had also considered the issue of possession. The Arbitrator concluded that in order to be caught by the Policy, it was necessary to prove that the Worker was in possession of the prohibited substance. The Arbitrator determined that the test for possession required actual physical presence of the drug and knowledge of its actual physical presence. The Arbitrator found that the Worker was credible and he also found as “a fact” the Worker was unaware of the presence of marijuana in his pocket at the time he entered onto the company facility. However, the Arbitrator was satisfied that at some point prior to his arrival at work, the Worker knew that he had marijuana in his pocket, but by the time of his arrival at the company facility he had forgotten it was there. As such, on the balance of probabilities, the Arbitrator concluded that the Worker was in possession of marijuana while performing company business, in contravention of the Policy and as such Magna was justified in terminating his employment. UNIFOR, Local 121 applied for a review of the arbitration decision.

Decision

In the decision, Justice Burrage noted that the arbitrator was called upon to determine if the Worker was in possession of marijuana in violation of the Policy. In order to determine this question, it was necessary to apply the facts to the legal requirements necessary for such possession. Therefore, the question to be decided was one of mixed fact and law and as such, the standard of review to be applied to the arbitrator’s decision was reasonableness.

Justice Burrage reviewed the decision in RDC and noted that the arbitrator in RDC held that possession required both actual physical presence of the drug (actus reus) and knowledge of its actual physical presence (mens rea). Justice Burrage noted that the presence of marijuana in the Worker’s jeans did not serve as a violation of the Policy. It was only once the Worker was on a “company facility” or “performing company business” that the Policy was engaged. Therefore, Justice Burrage determined that while the Worker was in actual physical possession, proof was required, on a balance of probabilities that the Worker knew he was in possession while on “company facility” or “while performing company business”. The mens rea was not simply the intent to possess the marijuana, but the intent to do so while performing company business.

In the decision, Justice Burrage noted that the Arbitrator appeared to have confused simple possession with possession that was in violation of the Policy. Justice Burrage noted that Arbitrator had found that the Worker was unaware of the presence of marijuana in his pocket. Justice Burrage distinguished between possession of marijuana and possession of marijuana while on a company facility or engaged in a company business. If the Policy only required possession, the Worker could not rely on his forgetfulness as a defence to the possession. However, the possession of marijuana was not a violation of the Policy as it was only once that the Worker was on a “company facility” or “performing company business” that the Policy was engaged. Therefore, Justice Burrage concluded that the Arbitrator had adopted a legal test for possession that was in contravention of the Policy. Justice Burrage went on to note that while the Court was required to give deference to the determination of the Arbitrator, the Arbitrator’s conclusion that the Worker was in violation of the Policy did not fall within the range of reasonable outcomes available. Under the circumstances, the Arbitrator’ ruling was set aside.

While Justice Burrage recognized that the facility to which the Worker was working was in a very “dangerous part of the world” and deterrence was critical, he did not accept Magna’s submission that the decision would open the floodgates to the transport of illegal drugs to the offshore. He noted that in many cases knowledge could be inferred despite the protestations of the employee and each case would depend on its own facts. In this case the arbitrator had found the Worker to be credible and accepted his evidence that he did not know that he was in possession at the time.

Implications

This case turned on the Arbitrator’s finding that the Worker was unaware of the presence of the marijuana as he entered security and the wording of the Policy so it is unlikely that this decision could be applied universally. However, the case does highlight the importance of having a properly worded Drug and Alcohol Policy.

This case also highlights the difficulty that employers have in enforcing Drug and Alcohol Policies. Even where a worker is found to be in possession of a prohibited substance in contravention of a Drug and Alcohol Policy, depending on the wording of the policy, the employer may have to prove that the worker knew that he or she was in possession of the prohibited substance.