Human Rights Advisory Services

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Human Rights Advisory Services

Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (CanLII)

 

Summary

The Applicant, James Aitchison, alleges discrimination with respect to employment because of

Disability when his employment was terminated after he was found smoking medicinal cannabis at work. The applicant asserts that the real reason he was terminated was that he requested an accommodation to limit his use of an electric sander.

The applicant suffers from degenerative disc disease which causes chronic pain in both his back and neck. The applicant has worked as a painter for over 30 years. He began working for the respondent in 2011, and his job was performed on a swing stage that was suspended on the outside of the building, 37 floors above the ground. He started to smoke medicinal marijuana in March 2015, that same year, he began to experience pain after prolonged use of the electric sander.

He spoke to both his site supervisor, Mr. Peter Ujka and the owner of the company, Mr. Radim Raskin, and asked to limit his use to less than one hour per day. Initially, the respondent agreed to the accommodation, but this changed when co-workers began to complain that the applicant was receiving special treatment. The applicant decided to go to his family doctor on June 14, 2015, to obtain a doctor’s note to support his request for accommodation. The applicant alleges that despite providing the doctor’s note, his supervisor chose to ignore his restrictions.  Then the Applicant decided to get a second doctor’s note. On the other hand, Mr. Ujka denies being asked for accommodation or receiving any doctor’s notes.

The applicant does not dispute that he used marijuana at work but rather asserts that he did so for medicinal purposes and with the full knowledge and consent of Mr. Ujka, his supervisor; and that he could medicate in a designated spot on the floor away from the crew. The applicant acknowledged the zero-tolerance policy of the company and understood that if General Contractor ever caught him smoking marijuana on the work-site, there would be serious consequences.

Mr. Ujka denied any knowledge that the applicant used medicinal marijuana at work before the incident.

According to the Applicant, on the morning of June 17, 2015, he was using the electric sander for just over an hour when Mr. Ujka came down to inspect his work and asked him to continue, ignoring the Applicants protest for being working beyond his medical restrictions. The applicant complied with the order but shortly, after that, his back seized up, and he fell to the floor of the swing stage screaming in pain. The applicant decided to leave the work site early and seek medical attention. He saw his family doctor later that day.

There is a conflict on whether the workplace injury occurred on the 17 or 18 of June.  The applicant saw his family doctor on June 17, but the doctor’s note makes no reference to a workplace injury.

According to the respondent, the accident described by the applicant occurred on June 18, not June 17 as claimed by the applicant. Mr. Ujka recounted that the applicant was assigned to work on the swing stage and early in the morning he heard a scream from the swing stage. According to Mr. Ujka, he offered to take the applicant to the hospital, but he declined and said that he was okay and wanted to go back to work. Later that morning, Mr. Ujka observed the applicant come off work on his first break, take off his work clothes, and put his harness back on. He followed him and saw him smoking what appeared to be a joint on the swing stage. He was not tethered to the stage and not wearing his hard hat. According to Mr. Ujka, he then called the owner, Mr. Raskin and told him what had happened. Mr. Raskin instructed him to send the applicant home and not to let him back on site until the owner returned from vacation.

On the other hand, the applicant claims that he arrived at work on June 18 and tried to give a copy of his doctor’s note to Mr. Ujka. His supervisor refused to accept the note and instead sent him home that morning.

The applicant was ultimately terminated on July 6 following a telephone call with the owner. It was on July 6 that the owner returned from vacation and review the documentation that he had sent and found out more details surrounding the cannabis incident.
 

Questions to be Determined and Findings

1. Did Mr. Ujka condone the Applicant’s marijuana use? (NO)

2. Did the Respondent Fail to Accommodate the Applicant re: Use of Medical Marijuana? (NO)

3. Did Respondent Discriminate Against the Applicant When it Terminated His Employment for Smoking Marijuana at Work? (NO)
 

Reasoning

1. As there are no corroborating witnesses or evidence to support either side’s claim, the dispute, in this case, comes down to a determination of credibility. The applicant’s evidence was found to be difficult to follow and contradictory. On the other hand, Mr. Ujka could have lost his job if he condoned the medical use of cannabis in the workplace, which was found hard to believe.

“If I were to adopt the applicant’s version of events then I am accepting that his supervisor was okay with the applicant smoking cannabis on a swing stage by himself on the outside of a high rise building, some 37 floors above the ground. Does this seem reasonable in the context of this workplace?” (p. 135)

2. There is no evidence that the applicant requested accommodation concerning his marijuana use. Rather, the Applicant unilaterally decided to use marijuana at work without authorization from either his employer or his treating physician

It was clear that Dr. Price did not know the true nature of the applicant’s work. Otherwise, he would have never authorized the applicant to medicate at work in these circumstances.

“Dr. Price testified that had he known the applicant’s job involved working on the outside of a high rise building, he would have discussed refraining from medicating at work.” (p. 157)

Moreover, even if the respondent had been made aware of the applicant’s chronic pain disability and his medical marijuana use, the preference for medicating at work would not have been part of any reasonable accommodation due to the high safety risks.

“The applicant submitted that the respondent breached its procedural duty to investigate the possibility of accommodating his marijuana use before it terminated his employment. I respectfully disagree. The applicant had already committed a serious health and safety breach that was in violation of violated the zero-tolerance policy before the respondent was ever made aware of any accommodation needs. The respondent was under no obligation to consider whether it could reasonably accommodate the applicant after the fact, that is after he provided the grounds for his own termination.” (p. 160)

3. The found that the applicant does not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes. His actions represented a genuine health and safety risk given the safety-sensitive nature of the job site, and The fact that the respondent relied on a zero tolerance policy to support its termination does not equate to discrimination under the Code in the circumstances of this case.

The applicant’s decision to use marijuana at work was his own, and the employer had no opportunity to consider whether it might have been part of some reasonable accommodation plan. The applicant, through his own actions, provided the respondent grounds to terminate his employment
 

Order

The application was dismissed.