Despite marijuana, 2 workers reinstated

Arbitrator cites extenuating circumstances

Two employees at a manufacturer in Ontario were reinstated recently, despite having brought marijuana plants to their place of employment.

John Rodwell and Carmine Blancato worked at THK Rhythm Automotive Canada. On Friday, April 15, 2016, they both worked the afternoon shift at the St. Catharines production facility and a few minutes before 9 p.m., were seen leaving the plant and proceeding to the company parking lot. Blancato removed a shopping bag containing two marijuana plants from his car and gave it to Rodwell. They then re-entered the plant and Rodwell went to an area of the plant not in use, concealing the bag, before returning to his work station.

A supervisor observed his actions and discovered the marijuana plants in the bag. Rodwell was immediately suspended from work pending investigation. On the Monday, THK reviewed the security tapes and interviewed both men. As a result, they were discharged from employment two days later.

THK’s code of conduct said acts considered serious enough to, in all probability, result in immediate dismissal included: “Employees reporting ‘unfit’ for work, possession and/or consumption of alcoholic beverages or illegal substances (i.e. drugs) on company property or during scheduled work hours and break periods.”

The collective agreement with the union, Thompson Products Employees Association, also stated: “Management has the full right to make reasonable rules as circumstances indicate and to discharge employees for proper cause… Rather than resort to a formal list of ‘Thou shall nots,’ the company will apply the common sense test of good citizenship to the commission of any act advanced as a reason for discharge or other disciplinary penalty.”

The possession or use of any mind-altering substance (except prescription drugs) was also a safety hazard in the facility, said the employer.

Discharge was also necessary because there had been a history of prior instances, so deterrence was a major factor to be considered.

But the union said a lesser penalty made sense for a number of reasons, including: the long service of the two men (more than 20 years of seniority each); no prior discipline on record; the federal government’s intention to legalize marijuana; the plants were not in a “consumable” state; this was a simple transfer without consequence to the employer and there was no intention to consume the marijuana at the workplace; both workers acknowledged wrongdoing; both men were in their 50s and could have trouble finding similar work; a discharge would have a drastic impact on their pensions and health benefits; and Blancato was later approved to take marijuana for medical purposes in May.

Arbitrator John McNamee did not agree with the argument around marijuana’s legality, nor with the plants not being consumable, saying "I am in some doubt as to the distinction between consumable and non-consumable marijuana plants and I cannot blame any employer for prohibiting all forms of illegal or unwelcome drugs.”

He also did not agree that there were no consequences.

“An employee who violates a health and safety rule takes the risk that something unanticipated may occur and cannot later be excused on the basis that he did not expect a result which was foreseeable.”

But McNamee also said many of the extenuating circumstances put forward by the union had legitimacy.  In the end, he decided to reinstate the men, without loss of seniority but without  compensation, as of June 13. 

The period from April 20 to June 12 was considered a disciplinary suspension.

But if either man was found in violation of THK’s rule around possession of a mind-altering substance in the 24 months following the date of reinstatement, “he may be automatically terminated and the right to grieve shall be limited to the right to contest whether or not the rule has been violated,” said McNamee.

Reference: THK Rhythm Automotive Canada and Thompson Products Employees’ Association. John McNamee — arbitrator. For the employer, Paul Young and Anne-Marie Heenan. For the union, Sean Fitzpatrick. June 8, 2016. 

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