Canadian Pacific protests reinstatement of worker

(Canadian Occupational Health and Safety News) — Canadian Pacific Railway Limited (CP) has announced that it will be asking the Superior Court of Quebec to stay a recent arbitration decision that ruled that a locomotive engineer who used cocaine be reinstated.

The July 14 decision from the Canadian Railway Office of Arbitration & Dispute Resolution ordered CP to reinstate the worker, without loss of seniority and without compensation for any wages or benefits lost. Arbitrator Michel Picher also ordered the employee to be subjected to random drug and alcohol testing for two years following his return to work. “Any failure to respect these conditions may have the most serious consequences for his employment,” Picher wrote.

The case dates back to Dec. 27, 2012, when the locomotive engineer tested positive for cocaine while working at the company’s Saint Luc Yard in Montreal. The worker was fired on Feb. 14, 2013 “for conduct unbecoming an employee, for… engaging in the use of [an] illegal and prohibited substance.” The worker’s union, the Teamsters Canada Rail Conference, argued that the firing was excessive and breached the collective agreement in place and the Canadian Human Rights Act, including the duty to accommodate.

On Dec. 27, 2012, the worker’s train “ran through” a main line crossover switch, derailing one locomotive, the decision read. The worker was ordered to submit a post-incident test, which showed that the employee “used cocaine in the late hours of December 22 or the early hours of December 23, within 24 hours of his being available for duty,” Picher wrote.

“In fact, because the grievor’s oral fluid test proved positive for cocaine while his urine test was negative, the inference is that he consumed the cocaine in a relatively short time prior to the taking of the substance test,” he wrote. “I am satisfied that the company is correct in its assertion, on the balance of probabilities, that the grievor did consume cocaine at a time and of a quantity which could impact his work performance.

Worker attended rehab for five months

Picher noted that the worker was involved in rehabilitation through individual and group sessions between October 2013 and March 2014. “It is trite to say that cocaine dependence is a form of disability which bears appropriate accommodation, to the point of undue hardship,” he wrote. “On the whole of the material before me, I am satisfied that it is appropriate to give the grievor another chance to demonstrate his ability to be a safe and productive employee in control of his drug dependence.”

Hunter Harrison, CP’s CEO, said in a statement that in addition to requesting a stay of the decision, the company will also appeal the order to the Superior Court of Quebec and ask for it to be overturned. “The arbitrator’s decision is an outrage and, as a railroader, I am appalled we would be forced to place this employee back in the cab of a locomotive,” Harrison charged. “On my watch, this individual will not operate a locomotive. The decision sets a dangerous precedent and is grossly unacceptable for the safe operation of a railway.”

Harrison suggested that the decision highlights the need for further public debate regarding the rights of an individual when employed in public safety positions. “Companies in Canada need the ability to carry out random drug tests as safety should trump the rights of any individual who makes the dangerous choice to place themselves, their co-workers and the general public at risk,” he argued, adding that U.S. railroads are required by federal law to perform random drug tests.