Bonavista MHA, St. John’s councillor square off on Discovery Day
Agrees fired Hibernia worker should have been reinstated; HMDC disappointed with ruling
The Court of Appeal of Newfoundland and Labrador has dismissed an appeal filed by the Hibernia Platform Employers’ Organization (HPEO) in a case that dates back to late 2014 that saw an employee being fired as a result of an incident related to helicopter safety on the Hibernia offshore oil platform.
The employee was let go after failing a drug test conducted as part of a probe into the cause of a series of helicopter manifest errors involving flights from the Hibernia platform.
The Communications, Energy and Paperworkers Union of Canada, Local 2121, had filed a grievance on behalf of the employee saying he was unjustly fired and the subsequent arbitration decision released on May 2, 2016 reinstated the employee.
The HPEO then filed an application with the Supreme Court asking for a judicial review of the arbitration board’s decision. But that court ruled on Jan. 3 of this year to dismiss that application and uphold the arbitration decision.
The HPEO then appealed the Supreme Court decision to the Court of Appeal which filed its decision earlier this week in which it dismissed the appeal.
That brings the matter to an end.
Margot Bruce-o’connell, public and government affairs manager with the Hibernia Management and Development Company Ltd., said Thursday they are disappointed that the Court of Appeal dismissed the appeal.
“At Hibernia, safety is our core value,” she said in an emailed statement.
“The Hibernia platform’s safety policies are dedicated to the protection of all workers on the platform, which is why we appealed the decision to reinstate a worker who tested
positive for drug use.”
According to background information, in December 2014 and January 2015 there were a series of helicopter manifest errors.
“On Dec. 6, 2014, there was an extra piece of baggage on the inbound leg. On Dec. 22, 2014, there was a missing piece of baggage on the inbound leg,” an agreed statement of facts stated. “On Jan. 11, 2015, there were two missing pieces of baggage on the inbound leg. No post-incident testing was conducted after those three incidents.”
On Jan. 13, 2015, there was another manifest error in the loading of Flight 231 inbound to
St. John’s. The error was that a 24-pound bag was indicated as being present on the manifest, but it had not been loaded on the helicopter.
Employee Gary Carroll, as helicopter landing officer at the time, was responsible for coordinating operations on the platform helideck, including landing, loading and unloading of passengers and baggage. His duties included creating and overseeing the manifest and providing it to the helicopter pilot.
All four of the helicopter manifest errors in December 2014 and January 2015 were reported to the Canadanewfoundland and Labrador
Offshore Petroleum Board (C-NLOPB). In addition, the offshore installation manager held a safety meeting with the helideck crew on Jan. 11, 2015 with additional processes being ordered to prevent further incidents from occurring.
When the fourth of these incidents occurred — the Jan. 13 incident — management determined that incident constituted a “safety incident,” triggering the threshold under policy for post-incident drug and alcohol testing.
“The offshore installation manager directed the helideck crew to undergo post-incident testing for drugs and alcohol,” the agreed statement of facts stated. “The helideck crew was comprised of Gary Carroll, six deck hands, and one nonunionized supervisor. All eight employees took the test.”
Carroll tested positive for benzodiazepines including temazepam, oxazepam, nordiazepam and lorazepam. These substances could only be obtained with a physician’s prescription.
Carroll did not have a prescription for the substances.
On March 30, 2015, Carroll was informed in writing that his employment was terminated.
The union asked the arbitration board to reinstate Carroll, arguing that he was unjustly fired.
The issue dealt with by the arbitration board was whether the actions by the employer were proper under the alcohol and drug policy that formed part of the collective agreement.
The arbitration board found that to order the test, there must be a link between the person tested and the incident.
“There were reasonable explanations for the Jan. 13, 2015 manifest discrepancy without the need to conduct alcohol and drug testing as a reasonable line of inquiry,” the arbitration decision stated.
“The board concludes that the alcohol and drug test of (Carroll) was ordered without consideration of the explanation that errors in process had not been corrected, without an explanation from (Carroll), and without sufficient reason to link (Carroll’s) actions to the incident. It was not appropriate to order the test in the exercise of managerial discretion.”
The Supreme Court agreed with the arbitrator, and the Court of Appeal ruled that the Supreme Court judge did not err in concluding that the arbitration board’s decision allowing the termination grievance was reasonable.