The Telegram (St. John's)

Bonavista MHA, St. John’s councillor square off on Discovery Day

Agrees fired Hibernia worker should have been reinstated; HMDC disappoint­ed with ruling

- BY GLEN WHIFFEN glen.whiffen@thetelegra­m.com

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.

 ?? CP FILE PHOTO ?? A tug positions itself near the base of the Hibernia platform in Bull Arm, Trinity Bay, on May 22, 1997. Newfoundla­nd and Labrador’s highest court has upheld a decision to reinstate an offshore oil worker who was fired after he tested positive for...
CP FILE PHOTO A tug positions itself near the base of the Hibernia platform in Bull Arm, Trinity Bay, on May 22, 1997. Newfoundla­nd and Labrador’s highest court has upheld a decision to reinstate an offshore oil worker who was fired after he tested positive for...

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