Pubdate: Mon, 28 Jul 2014
Source: Montreal Gazette (CN QU)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.montrealgazette.com/
Details: http://www.mapinc.org/media/274
Author: Andy Riga
Page: A4

RAILWAYS, UNIONS DISPUTE WORKER DRUG USE

Arbitration Rulings Show It's Considered a 'Disability'

MONTREAL - A war of words has broken out over a fired cocaine-using 
locomotive engineer.

Canadian Pacific chief executive Hunter Harrison lashed out when CP 
was ordered this month to reinstate the engineer even though an 
arbitrator confirmed the employee had "consumed cocaine at a time and 
of a quantity which could impact his work performance."

Harrison said: "On my watch, this individual will not operate a locomotive."

The engineer's union - Teamsters Canada Rail Conference - called 
Harrison's comments an "unjustified and unprecedented" personal 
attack, arguing the worker deserved a second chance.

The case made headlines, but a Gazette review of Canadian Railway 
Office of Arbitration decisions shows it regularly deals with cocaine cases.

 From a 2011 CROA decision involving a CP employee:

"To put it simply, he was passed out drunk for the better part of his 
tour on duty, following which he was alcohol and drug tested, and 
returned a test positive for cocaine." The arbitrator also noted the 
worker "engaged in binge drinking during the afternoon prior to the 
commencement of his tour of duty at 1:30 a.m."

Montreal-based CROA, jointly administered by CP, Canadian National 
and rail unions, helps resolve disputes between management and workers.

In their rulings, arbitrators often cite the Canadian Human Rights 
Act, which defines a disability as "any previous or existing mental 
or physical disability and includes disfigurement and previous or 
existing dependence on alcohol or a drug."

As one CROA decision noted: "As with any disability, (drug addiction) 
triggers an obligation of reasonable accommodation on the part of an 
employer and a union, to the point of undue hardship."

Here's a look at five cases that involved cocaine. The details are 
from CROA decisions and may not reflect the final outcome, as 
decisions can be appealed in court.

Engineer made headlines

Background: In December 2012, a CP employee was operating a train as 
its locomotive engineer. The train was involved in a manoeuvre that 
resulted in a locomotive being derailed in a Cote St-Luc rail yard. 
The engineer was directed to submit to a substance test that found he 
had used cocaine within 24 hours of his being available for duty. CP 
fired the employee.

Dispute: The union argued the discipline was excessive. It presented 
evidence the engineer had received treatment for cocaine dependency 
and had taken part in individual and group therapy between October 
2013 and March 2014.

Ruling: A July 2014 CROA decision noted "on the balance of 
probabilities, the (employee) did consume cocaine at a time and of a 
quantity which could impact his work performance." But rather than 
fire the engineer, CP should give him "another chance to demonstrate 
his ability to be a safe and productive employee in control of his 
drug dependence." For two years, he is to refrain from using illicit 
drugs and be subject to random alcohol and drug testing.

Bottom line: The employee must be reinstated. CP says it will appeal 
the decision to Quebec Superior Court, arguing it "sets a dangerous 
precedent and is grossly unacceptable for the safe operation of a 
railway." CP says the employee is "currently not on the 
job."Background: The case involves a CN employee with a cocaine 
addiction who had been fired, but was reinstated in February 2012 
"for compassionate reasons" after a CROA hearing. He had been found 
responsible for "a derailment accident involving two dangerous 
commodity tank cars." At the time, the man, a traffic coordinator, 
was told to abstain from consuming alcohol or illegal drugs; he was 
also to be subject to random alcohol and drug testing for two years. 
In November 2012, he submitted to a drug test. His "hair sample was 
returned as positive for cocaine," according to CROA. CN fired him.

Friend's crack pipe blamed

Background: The case involves a CN employee with a cocaine addiction 
who had been fired, but was reinstated in February 2012 "for 
compassionate reasons" after a CROA hearing. He had been found 
responsible for "a derailment accident involving two dangerous 
commodity tank cars." At the time, the man, a traffic coordinator, 
was told to abstain from consuming alcohol or illegal drugs; he was 
also to be subject to random alcohol and drug testing for two years. 
In November 2012, he submitted to a drug test. His "hair sample was 
returned as positive for cocaine," according to CROA. CN fired him.

Dispute: The employee argued he should be reinstated. During a 
hearing, he suggested "his positive test result was not by reason of 
his own consumption of cocaine," according to CROA. "He (maintained) 
that when he discovered that a girlfriend living with him was in 
possession of crack cocaine he took possession of the cocaine and the 
pipe used to consume it, breaking the pipe and placing it in the 
garbage along with the crack cocaine. He suggests he might then have 
absorbed some of the cocaine through contact with his eyes, mouth or nose."

Ruling: In an April 2014 decision, an arbitrator said he had 
"substantial difficulty with the (employee's) explanation." The man 
"was given a last chance. For reasons he best understands, he failed 
to take advantage of it. His positive drug test for cocaine is 
plainly in violation of the terms of his reinstatement to employment."

Bottom line: The employee lost his job.

Police seize drugs in home

Background: In 2011, police searched the home of a veteran CP 
employee. They seized seven pounds of marijuana, 57 grams of cocaine, 
93 codeine pills, as well as psilocybin (magic mushrooms), CROA said. 
He was charged with possession of cocaine and marijuana for the 
purposes of trafficking, as well as possession of property obtained 
by crime. But charges were reduced to the possession of prohibited 
drugs, "apparently in exchange for a guilty plea for which (he) was 
sentenced to a 12-month conditional discharge, six months' probation, 
an order that he supply a DNA sample and that he be subject to a 
10-year weapons prohibition." CP fired him. The man's job title was 
not mentioned in the ruling.

Dispute: The employee's union argued firing was too severe for 
several reasons, including the fact he had: never been disciplined in 
his 27 years at CP for a drug or alcohol offence; was found not 
guilty of drug trafficking; and had an admitted drug dependency. The 
union also suggested CP had "failed its duty to accommodate this 
disabled worker."

Ruling: In a February 2014 decision, an arbitrator noted CROA has "an 
open and compassionate approach to the cases of employees who may 
have a drug problem, and/or are found in possession of small 
quantities of drugs intended for their personal use." But in this 
case, the employee "crossed a line by moving beyond the mere 
possession or use of drugs into what I am satisfied was substantial 
involvement in drug trafficking."

Bottom line: The employee lost his job.

Second chance ends quickly

Background: CN fired a locomotive engineer after a positive test for 
cocaine in July 2012. It was the second time CN had fired him for 
cocaine use. In a June 2012 ruling, a CROA arbitrator overturned the 
first firing. As part of that ruling, the man was to refrain from 
using illegal drugs and was to submit to drug tests. Only six weeks 
after that decision, during a reinstatement medical assessment, a 
drug test was administered. "His hair sample was ultimately confirmed 
as being positive for cocaine," CROA said.

Dispute: The union said CN's decision to fire him was excessive and 
unwarranted because the engineer "is disabled and requires 
accommodation." It demanded he be reinstated. "The employee suggested 
there must have been a positive reading by reason of chemical 
reaction resulting from a renal biopsy which he had recently 
undergone," CROA said.

Ruling: In a July 2013 decision, an arbitrator found the man failed 
to honour the conditions under which he was reinstated. "At a 
minimum, that positive test is clearly inconsistent with the 
(employee's) own account that he had not consumed cocaine since 
December of 2011."

Bottom line: The employee lost his job.

Collision leads to drug test

Background: A CN conductor underwent drug and alcohol testing after 
his train was involved in a collision with a patrol foreman's 
vehicle. The test showed he had consumed cocaine about 48 hours 
before the incident, which "violated his obligation not to be under 
the effects of a prohibited narcotic while we was subject to duty." 
CN dismissed him.

Dispute: The man's union asked the arbitrator to overturn the 
dismissal in part because though he admitted to cocaine use, he did 
not do so while on duty.

Ruling: In an October 2011 decision, an arbitrator said he was 
satisfied the man had "successfully controlled his (cocaine) 
addiction," having completed a six-week detox program and attended 
Narcotics Anonymous meetings. After 31 years of "exemplary service," 
it was not appropriate for CN to fire the man, the arbitrator ruled. 
The man should be reinstated, without compensation for lost wages. He 
was ordered to abstain from using illicit drugs, told he would be 
subject to random drug and alcohol testing and ordered to regularly 
attend meetings of a support group such as Narcotics Anonymous.

Bottom line: The employee kept his job.
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MAP posted-by: Jay Bergstrom