Fired and rehired

Terminated Hibernia worker to get job back after court rules drug test was invalid

The Newfoundland and Labrador Supreme Court has upheld an arbitration board decision to reinstate an employee fired 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 offshore platform.

The court agreed with the arbitration decision that the drug test should not have been conducted at the time, as there was no link established between the employee and the errors.

The board had found there should have been minimal investigation done, such as interviewing employees and evaluating potential causes, before requesting the drug tests. Compensation for the employee, Gary Carroll, is to be determined.

The Supreme Court decision was filed Jan. 3 by Justice Rosalie Mcgrath.

The Hibernia Platform Employers’ Organization had filed an application with the court asking it to overturn the May 2, 2016 arbitration decision. The respondent in the case was the Communications, Energy and Paperworkers Union of Canada, Local 2121, of which Carroll is a member.

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 states. “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.

Carroll, as helicopter landing officer at the time, was responsible for co-ordinating operations on the platform heli-deck, including landing, loading and unloading of passengers and baggage. His duties included creating and overseeing the manifest and providing it to the helicopter pilot.

The arbitration board concluded that, “Manifest errors are potentially serious issues, because the helicopter pilot makes operational calculations based on the actual weight recorded on the manifest. An accurate manifest is required under Canadian aviation regulations. The C-NLOPB (Canada-newfoundland and Labrador Offshore Petroleum Board) guidelines state that improper loading of a helicopter is described as a ‘near miss’ and is required to be reported to the C-NLOPB via the written notification process.”

All four of the helicopter manifest errors in December 2014 and January 2015 were reported to the C-NLOPB. In addition, the offshore installation manager held a safety meeting with the heli-deck crew on Jan. 11, 2015 with additional processes being ordered to prevent further incidents from occurring.

It was only when the fourth of these incidents occurred — the Jan. 13 incident — that management determined the incident constituted a “safety incident” triggering the threshold under policy for post-incident drug and alcohol testing.

“The offshore installation manager directed the heli-deck crew to undergo post-incident testing for drugs and alcohol,” the agreed statement of facts state. “The heli-deck crew was comprised of Gary Carroll, six deck hands, and one non-unionized 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, and non-prescription drugs of any kind, as well as alcohol, are not permitted onboard the platform.

Carroll underwent a dependency assessment and it was determined that he did not have a dependency and was fit to return to work. On March 30, 2015, however, 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.

Mcgrath noted the arbitration board applied both the contractual and arbitral authority requirements and found that the alcohol and drug testing of Carroll did not meet the requirements of a valid test based on the language of the policy and the requirements of arbitral authorities.

The judge said that despite the arbitration board’s acceptance that the policy was part of the collective agreement, that the incident triggered the threshold for testing, and that the test results were positive for prohibited substances, the board found that the employer could not rely on the test results as a ground for discipline.

The arbitration board had found that there must be a link between the person tested and the incident, and that the application of the policy must also be subject to other requirements, including an investigation that considers the likely cause of the incident and whether the employee’s actions contributed to the incident; an investigation that includes the employee’s explanation of the incident; and the exercise of managerial discretion having regard to all the circumstances of the case and the fact that testing is an invasive procedure.

“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 other explanations included the actions of the passenger who misplaced his bag at the top of the emergency stairwell, and the fact that procedures designed to improve loading operations and eliminate manifest discrepancies, such as the new Check List, were not operational on Jan. 13, 2015. 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. Therefore, the test did not comply with Section 5.0 (2) of the Alcohol and Drug Policy, based on the language of the policy and the requirements of the arbitral authorities.”

Mcgrath noted that on the facts before it, the arbitration board found that the employer could have and should have asked the employee for an explanation. It also found the employer could and should have conducted a minimal investigation as to the likely cause and whether the employee’s actions contributed to the incident.

“There were only eight employees who were tested. It would not have caused a significant delay to ask questions of such a small number of persons,” Mcgrath said.

Mcgrath also noted the arbitration board concluded that, “The effect of a finding that the test did not meet the requirements of a valid test is that the result of the test cannot be considered as grounds for discipline, pursuant to the Alcohol and Drug Policy.

It is unnecessary to consider the evidence regarding prescription drug use, (Carroll’s) drug test result, or the expert evidence regarding level of impairment. Therefore, in the absence of a valid drug test result, the (employer) has not proven that (Carroll) violated the Alcohol and Drug Policy.”

Mcgrath found that the decision of the arbitration board was not unreasonable and was within the range of possible and acceptable outcomes.

Mcgrath dismissed the application, and thus the arbitration board decision stands.