Train conductor imbibed after crash, while driving train

TCRC alleged CP didn’t accommodate worker’s addiction

After the Canadian Pacific (CP) train he was operating hit a pickup truck, a conductor continued onto the next stop and sipped from a bottle of whisky. 
On Aug. 12, 2017, Greg Paisley, locomotive engineer (LE), ran into a Toyota Tundra on the track, despite pulling the emergency brake. There were no injuries as a result and the train continued onto the next stop, which was Exshaw, Alta.
As the train travelled, Paisley drank from a 750-millilitre rye whisky bottle that he brought on board as a gift for someone else.
Later, a CP police constable noticed alcohol on Paisley’s breath. The RCMP were notified and Paisley failed a breathalyzer test as his blood alcohol concentration was greater than 0.08.
The police charged Paisley with impaired operation over 0.08 of railway equipment. 
On Aug. 21, during an investigation interview, Paisley admitted he drank whisky on that day. He said he experienced a breakdown from the collision and previous incidents, one of which resulted in the death of a 20-year-old person.
Paisley was asked if he believed he had a problem with alcohol. “Yes, I believe that through circumstances in my personal and professional life, that I have developed an issue with alcohol and possibly other mental-health issues. I can assure you that this is the only time I had consumed alcohol while on duty. The circumstances that took place on Aug. 12 made me realize that it was a bigger problem than I had thought previously,” he said. 
As well, he pointed to his home situation, including both Paisley and his wife battling cancer. 
Nonetheless, Paisley was terminated on Sept. 15. “Please be advised that you have been dismissed from company service for your violation of Canadian Pacific Policy OHS 4100 Alcohol and Drug Policy and your use of and possession of intoxicants while subject to duty,” said the letter. 
The union, Teamsters Canada Rail Conference (TCRC), grieved the decision on Nov. 14 on the grounds that CP didn’t accommodate Paisley’s alcohol addiction.
After his firing, Paisley attended a two-week addiction treatment program and his doctor diagnosed him as suffering from “alcohol-use disorder, severe.”
On May 22, 2018, Paisley pleaded guilty and he was given a curative discharge. “I’m told that he’s been struggling with alcohol since at least 2003. I understand a typical day for him would involve consuming at least one bottle of whiskey a day or one case of beer. And that often, his drinking would start with breakfast,” said the court transcript. 
Paisley was also given a one-year prohibition from driving until May 22, 2019.
Arbitrator Graham Clarke upheld the grievance and ordered CP to reinstate him, but with no back pay. 
“Paisley shall not return to work until such time as he is confirmed by the company’s medical officer to be physically fit to work, including testing for any substance-abuse issues which the company’s medical officer deems appropriate. For the duration of his employment with CP, Paisley must abstain from the consumption of alcohol or drugs,” said Clarke. 
“For a period of two years from the date when Paisley starts performing services for CP, he will be subject to random, unannounced drug and alcohol testing.”
CP argued that Paisley only raised the issue of his alcohol addiction after the incident, which meant the firing was justified. However, the arbitrator disagreed. 
“During the investigation, Paisley answered CP’s question in the affirmative that he had an issue with alcohol. There was no evidence suggesting that everything Paisley subsequently went through constituted a ‘ruse’ designed to obtain protections under the CHRA (Canadian Human Rights Act). The case law does not support the suggestion that prima facie discrimination can never arise if an employee only raises disability after an incident,” said Clarke.
Reference: Canadian Pacific and Teamsters Canada Rail Conference. Graham Clarke — arbitrator. K. Stuebing for the employee. Feb. 5, 2019. 2019 CarswellNat 396

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