Human Rights Office

Human Rights Office
Human Rights Office

Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 34078 (CA LA)

 

Summary

ATS provides airport services to various airlines in designated airports throughout North America. At Toronto Pearson International Airport, ATS is contracted with several airlines to provide service and ramp operations. Throughout his nine years with ATS and at the time of his discharge, the Grievor was employed as a ramp agent, with an impeccable disciplinary record.

The Grievor’s job was performed at or around the aircraft that are in the process of landing and disembarking and those aircraft which are in the process of loading and departing. Once the aircraft has landed, one ramp agent, usually the lead hand or chief, will marshal the aircraft into position while the two remaining ramp agents observe the movement of the aircraft to ensure that there are no obstructions while it is moving into place. The ramp agents are responsible for a visual inspection of the aircraft, and if any damage or concerns are observed, they are reported to the pilot.

On a different occasion, the Grievor was found by the airport authorities to have a joint in his possession and that this event was communicated to Mr. Baines. Although Mr. Baines would have become aware of the Grievor’s conduct, this incident was not reported to the managerial levels above.

On July 7, 2016, the Grievor was assigned to a three-person ramp crew. On the day in question, they had previously landed, offloaded and serviced two aircraft. On the third aircraft, a United Airlines flight, once landed, marshalled in and chalked, the Grievor took the tow bar in hand, walked the tow bar towards his co-worker and then “rolled” it towards his co-worker. It seemed that the co-worker attempted to grab it but missed, and as a result, the tow bar struck the aircraft damaging one of its lamps. The damage was immediately reported and repaired, but as a result, the flight got 45 minutes delayed.

The Grievor and his co-worker were then met by Mr. Manni Baines, the Duty Manager and directed to file a written statement of the events leading to the aircraft's damage. Then, during a conference call, it was determined that the Grievor and his co-worker did not follow the standard operating procedures and as a result, the Grievor was given a two-day suspension, pending the outcome of the urine analysis.

On or about July 13, 2016, ATS was informed that the Grievor’s urine sample came back positive for marijuana metabolites. Then, on July 20, 2016, the Grievor’s was questioned by human resources and the administration regarding his knowledge about the Zero Tolerance Drug and Alcohol Policy, and he disclosed his use of medical marijuana, 5 mg. per day, as prescribed by his doctor.

At the same meeting, the Union advised ATS that it was their opinion that the Grievor’s urine test did not indicate impairment, the test indicated small traces of THC-COOC in the Grievor system which can, in a regular user, be present for upwards of sixty days. This outcome was consistent with the Grievor's medical prescription of marijuana. The Grievor was asked to explore alternatives to using medicinal marijuana; to acknowledge that he had a substance abuse problem; to enter an Employee Assistance Program, meet with a counsellor, remain drug and alcohol-free; and to agree to random drug testing to avoid termination. The Grievor did not sign the Final Warning nor agree to its terms, did not explore alternatives to medicinal marijuana, and as a result, the Grievor was terminated.
 

Questions to be Determined and Findings

1. Did the Grievor’s use of medically authorized marijuana violate the drug and alcohol policy? (NO)

2. Does an immediate or automatic discharge (subject to mitigating circumstances) following a positive test result violate the Collective Agreement and applicable legislation? (YES)

3. Did the termination violate the Grievor’s rights under the Canadian Human Rights Act? (YES)
 

Reasoning

1. In his evidence, the Grievor stated that he suffers from a lower lumbar related workplace injury caused by excessive twisting and turning. And from a sports-related knee injury. He had been prescribed medicinal marijuana for three years. His prescription was for 5 grams per day and had a duration of twelve months. But, in cross-examination, the Grievor acknowledged that he was unaware of the strain or strength of the marijuana that he purchased and was using in July 2016.

The Tribunal took testimony from two medical experts. ATS called doctor Mathew Burnstein, and he described the impairment effect of marijuana as initially acute causing a temporary reduction in concentration, motor skills, situational awareness and learning. Dr. Burnstein placed greater value in Health Canada recommendations that the ability to drive or perform activities requiring alertness may be impaired for up to twenty-four hours.

On the other hand, Dr. Caroline MacCallum, a licenced physician in British Columbia called by the Union, was of the opinion that four to six hours was the likely window of impairment. Dr. MacCallum disagreed with Dr. Bornstein’s conclusion that the Grievor could have been impaired from marijuana use on July 7, 2016, when the accident occurred.

The Tribunal found that the evidence does not support a finding that the Grievor was impaired at the time of the incident on July 7, 2016.

“The Grievor was not impaired and as such did not violate the ATS Drug and Alcohol Policy by reporting for work or working while impaired.” (p. 57)

2. The ATS Corporate Drug and Alcohol Policy mandates drug and alcohol testing after an accident or incident regardless of its significance, which is overly broad and unreasonable. The evidence demonstrates that ATS determined that a post-incident drug and alcohol test was required without a review of any of the surrounding circumstances and there was no concern for or balancing of the Grievor’s privacy interests, breaching the proper application on the ATS Drug and Alcohol Policy. However, the Grievor in his testimony admitted to possessing marijuana in the workplace before the incident, which did not result in disciplinary action, breaching the ATS Drug and Alcohol Policy again. Therefore,

“…following a significant incident, such as damage to an aircraft resulting in a lengthy delay in the departure of that aircraft, a previous breach of the drug and alcohol policy and having been in possession of marijuana in the workplace would establish a reasonable basis to require the Grievor to undergo a post-incident drug and alcohol test immediately. Although the process followed by ATS was flawed, the result, the ordering of the drug and alcohol test, was ultimately correct. In these circumstances, it would not be appropriate to void or invalidate the results of the drug and alcohol policy.” (p. 48)

The ATS Drug and Alcohol Policy mandates automatic discharge if an employee test positive for drugs or alcohol following a reasonable cause test or a post-incident cause test. The automatic discharge is subject to mitigating circumstances, which are specifically limited to situations where the employee suffers from an addiction. The policy does not provide for a meaningful process or accommodation for those who are prescribed or authorized to use narcotics or other controlled substances, such as marijuana, to treat physical or mental health issues. This process does not comply with the Employer’s obligations under the Canadian Human Rights Act (CHRA) which requires an Employer to accommodate an employee’s disability to the point of undue hardship.

“The ATS Drug and Alcohol Policy contemplates the accommodation of an employee suffering from addiction but does not, in its application, contemplate the Employer’s duty to accommodate an individual who suffers from a physical ailment which requires the individual to take pain medication, which includes an authorization to take medicinal marijuana. For this reason, I find that the ATS Drug and Alcohol Policy does not comply with the CHRA.” (p. 52)

3. Once informed of the Grievor’s medical authorization for marijuana, ATS had both a procedural and substantive duty to accommodate the Grievor. There were two attempts to accommodate the Grievor: the first attempt was for the Medical Review Officer (MRO) to review the Grievor’s medical authorization. The MRO failed to make the necessary inquiries concerning the Grievor’s authorization for medical marijuana. This process, yet again, was not in compliance with the ATS Drug and Alcohol Policy and was a breach of the procedural duty to accommodate. The second attempt to accommodate the Grievor occurred when ATS suggested and gave the Grievor an opportunity to find or obtain alternate pain medication. Since the Grievor rejected this opportunity, ATS has argued that the Grievor had failed in his duty to cooperate.

“It is the impairing effects of drugs while working that ATS is attempting to address. Their concern of avoiding or eliminating the potentially impairing effects of medicinal marijuana is a legitimate and paramount concern for ATS. This concern, however, is not addressed by the having the Grievor use a different pain medication which may have the same or similar impairing effects. ATS’s suggestion to change medication was more form than substance and was not, in all the circumstances, reasonable. The Grievor’s rejection of this proposal did not discharge the Employer’s duty to accommodate the Grievor.” (p. 61)

The Tribunal argues that what should have occurred is, once informed that the positive test was the result of legally authorized medication, in this case, medicinal marijuana, it was required upon ATS to attempt to accommodate the Grievor. ATS was very hesitant in accommodating the Grievor in his safety-sensitive position as ramp agent or accommodating the Grievor with conditions, given the fact that the Grievor was authorized the maximum daily dose of marijuana and was unaware of the strain or strength of the marijuana. Even though the accommodation process, in this case, was not simple, these issues do not justify the termination of the Grievor.

“The evidence establishes that ATS failed in its duty to attempt to accommodate the Grievor, terminated the Grievor without just cause and in doing so, violated both the CHRA as well as its obligations under the Collective Agreement.” (p. 66)
 

Remedy

Reinstatement that could include conditions such as an analysis of the Grievor’s restrictions and limitations regarding the dosage, strain/strength of any medicinally authorized marijuana, any workplace accommodations, and compensation, if any.