Drug Test Policy Upheld As Reasonable Re Cannabis = Just Cause

Quong v Lafarge Canada Inc, 2024 ABKB 340 (CanLII), is a recent Alberta King’s Bench decision, where it was held that the employer had just cause to terminate an employee, for failing to undergo a Substance Abuse Assessment and rejection of a return to work agreement, contrary to the company’s Drug and Alcohol Policy.

Facts

The following are the pertinent facts of the case:

• The Plaintiff employee, Gary Frederick Quong (the “Employee”), was a Site Superintendent for the Defendant employer for 41 years.
• The Employee was in a safety sensitive position.
• The Defendant employer, Lafarge Canada Inc (the “Employer”) had a Drug and Alcohol Policy (the “Drug Policy”), which stated that employees were to undergo a drug and alcohol test if the following four conditions were satisfied following a workplace incident:

1. The test is intended to eliminate drug or alcohol use as a possible cause of or a contributing factor to an incident;

2. The employee’s explanation of the incident must be considered.  If the employee provides a reasonable explanation (e.g. structural or mechanical failure), this is to be weighed against the need for conducting a test;

3. There must be some evidence to indicate that the actions or omissions of the employee contributed to or caused the incident; and

4. The incident must be an event involving one (1) or more of the following:

   i. Fatality;

   ii. Critical incident;

   iii. Bodily injury to self or others;

   iv. Property damage;

   v. Environmental damage;

   vi. A near miss or relatively minor incident that, in management’s opinion, could have resulted in any of the above.  The proximity of harm must be realistic, and the potential harm significant.

• The Employee was required to take a drug and alcohol test following a workplace incident, whereby the Employee hit a mobile compactor while operating a Company vehicle (the “Incident”).
• The estimated cost of the Incident was between $700 and $1,000. No one was injured.
• The Plaintiff agreed to the drug test. The drug test came back positive for cannabis (the “Positive Test”).
• As a result of the Positive Test, the Employer sent the Employee a Next Steps Letter, advising him of the steps required to return to work, in accordance with the Drug Policy. The following was required:
  • The Employee was to undergo a Substance Abuse Assessment (“SAP Assessment”);
  • If the SAP Assessment determined that the Employee had a substance abuse disorder, the Employer may accommodate the Employee. In the event it was determined that there was no substance abuse disorder, the Employer would determine the appropriate level of discipline; and
  • In the event the Employee was allowed to return to work, he was required to sign a “Return to Work Last Chance Agreement”. This agreement required the Employee to submit to random drug testing for a period of up to 24 months (the “RTW Agreement”).

• The Employee refused to partake in the SAP Assessment and rejected the RTW Agreement.
• As a result, the Employer terminated the Employee for just cause. The termination letter noted the following reason for termination:

Since you are in violation of the drug and alcohol policy and refused to participate in the substance abuse program we were forced to make this decision in absence of a professional substance abuse assessment

• The Employee was of the position that the Employer did not have just cause to terminate his employment, as such, he was wrongfully dismissed and entitled to 24 months of common law notice.
• The Employee argued there was no just cause for termination for the following reasons:
  • The Employer failed to conduct a contextual analysis in determining whether to terminate;
  • The Employer failed to apply progressive discipline;
  • The Policy was unreasonable; and
  • The Employer failed to honor the terms of the Employment Contract which included progressive discipline for infractions.
• The Employer was of the position that the termination was reasonable and consistent with the Policy.

Analysis / Conclusion

The Drug Policy was held to be reasonable, given employer’s legal obligation to maintain a safe workplace, especially for those in safety sensitive positions:

[42] I find that the Drug and Alcohol Policy was reasonable, unambiguous, well published, and consistently enforced.  Lafarge is involved in the construction industry where employees are regularly working with or around heavy machinery.  Safety is of the utmost importance and, following the precautionary principle, drug testing following workplace incidents is reasonable and random drug testing as part of a return to work protocol following a positive drug test is reasonable.  There is nothing about the Drug and Alcohol Policy that is ambiguous or otherwise unclear.  The Drug and Alcohol Policy was available to all employees and regular training on the policy was conducted by Lafarge.  Lastly, the Drug and Alcohol Policy was consistently enforced as reflected by Mr. Quong’s evidence that, as a Site Supervisor, he was responsible for removing impaired workers from the workplace and had done so, he was responsible for driving employees to the testing facility when testing was required by the Drug and Alcohol Policy, and he was aware of a circumstance where a worker had been terminated for violating the Drug and Alcohol Policy.

The Honorable Justice Feasby held that the Employee repudiated the employment contract when he failed to abide by the Drug Policy in refusing the SAP Assessment and RTW Agreement, such conduct was viewed as incompatible with continued employment:

[55] […] The wilful refusal to abide by a policy critical to ensuring a safe workplace is incompatible with continued employment.  Mr. Quong’s refusal constituted a repudiation of his employment contract …

The Employee was terminated for just cause.  As he was not wrongfully terminated, he was not entitled to damages.

My Take

Upon review of the decision, a majority of the discussion surrounded whether or not the Drug Policy was reasonable and whether the Drug Policy was a term of the employment contract. One thing I did not see in the decision was analysis around the question of whether the application of the Drug Policy was unreasonable, as a separate issue from whether the Drug Policy was reasonable.

There is an abundance of caselaw reflecting the notion that not all workplace incidents warrant the application of an employer’s Drug and Alcohol Policy. For example, in Jacobs Industrial v International Brotherhood of Electrical Workers, Local 353 (Degg Grievance), [2016] O.L.A.A. No 7, the panel held that a minor vehicle incident and the absence of signs of impairment did not justify the application of a drug test, despite the terms of the employer’s Drug and Alcohol Policy.

Additionally, in Fort Mckay Logistics LP, Fort Mcmurray Division v General Teamsters,local Union No. 362, 2022 CanLII 78227 (AB GAA), it was unreasonable for an employee to be required to undergo a drug test in accordance with his employers  Drug and Alcohol policy,  following a trivial incident.

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper was discussed in the decision. In particular para 30:

In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse

In applying the above to the Employee’s situation, we note the following:

• There was no mention of the Employer having any reason to suspect that the Employee was impaired while on duty; and
• The argument could be made that the Incident was trivial, therefore, did not justify the application of the Policy, provided the damages were minimal and no one was injured.

It is not enough to challenge the reasonableness of an employer’s policy. Failure to challenge the application of a policy, runs the risk of employers having unfettered discretion to enforce its policies, absent a legitimate a reason to do so. This is also contrary to the balance that must be struck between employer’s policies and employee’s rights.

Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.