The employee was originally terminated after consuming cannabis while attending a company training course.

An employee with Nav Canada, which runs the air navigation system over Canada and part of the North Atlantic Ocean, has been placed on unpaid suspension for a year for violating the company’s drug policy, an Alberta arbitrator has ruled. 

Nav Canada’s employee policy does ban the possession, distribution, sale or consumption of cannabis at all times on Nav Canada property or while on duty, but the company failed to consider mitigating circumstances before terminating the employee, the arbitrator ruled. 

While attending the training seminar, the employee reportedly consumed cannabis on two consecutive evenings to help fall asleep. The chief of security at the centre then notified the employee about complaints of a cannabis smell emanating from the room and asked the worker to refrain from consuming cannabis anywhere on Nav Canada property.

After completing coursework the following day, the employee smoked cannabis while on a walk outside. The centre’s manager then moved the employee to a different room while the worker called a manager and explained the cannabis consumption was prompted by stress and the death of a family member. 

When the employee returned to Vancouver, the person admitted to being aware of the company’s drug and alcohol policy, but didn’t know that it applied to the training centre. The employee was terminated shortly thereafter. 

The union representing the employee argued the termination was excessive due to the migrating instances around the employee’s cannabis consumption, adding that the worker consumed the drug outside and the veteran employee was cooperative during the investigation.

Under the Canadian Human Rights Act, employers have the “obligation to accommodate to the point of undue hardship an employee who has identified as having a disease, injury or disability, including substance dependence and medical authorizations to use cannabis for medical purposes.”

Following the employee’s termination, the worker stopped consuming cannabis, began seeing a counsellor and was prescribed antidepressants. 

“It wasn’t happening during working hours and it wasn’t happening when the employee was working in a safety-sensitive capacity — certainly the arbitrator considered this isn’t [someone] who was using cannabis and then was engaged in potentially dangerous work, notwithstanding the issues of use and then attending work within some period of time after use,” Calgary-based employment lawyer Dylan Snowdon told HR Reporter. 

The arbitrator ruled that while serious repercussions were reasonable, termination was excessive. A one-year unpaid suspension was deemed to provide “a strong specific deterrent for the [worker] and a significant general deterrent for other employees.”

“A one-year suspension is almost unheard of — it’s shocking to have an outcome of discipline that serious,” Snowdon added.

“Where termination is viewed as too serious, a one-year suspension is awfully close to termination as far as discipline goes, in my mind.”

Last month, The GrowthOp wrote about Scott Martin, an air force veteran and 12-year-employee with the City of Buffalo Fire Department who was fired for medical cannabis consumption. 

Martin had qualified as a medical cannabis patient in the state program because of a back injury that didn’t respond well to a variety of other treatments, including opioids, nerve blockers and X-ray-assisted spinal injections.

Martin said that he consumes cannabis in the evenings to help him fall asleep, ease his back pain and mitigate against symptoms of post-traumatic stress disorder.

Martin was later fired after workplace drug tests revealed cannabis in his system. Though he provided the department with his doctor’s prescription and completed a treatment program following his first positive test, he was fired after testing positive a second time. 

Martin’s lawyer, David C. Holland, principal of The Law Offices of David Clifford Holland P.C., told The GrowthOp that the union’s collective bargaining agreement, which prohibits cannabis, was last updated in 2011, three years before the state legalized medical cannabis.

Once a patient qualifies for the state medical program, he or she is deemed disabled under the law, and employers are required to make accommodations, Holland argued.

“The position of the City of Buffalo right now is that they’re able to collectively bargain away that disability status,” Holland said of the ongoing case, adding that certain rights can be bargained away, such as what is said within the confines of a workplace or on social media after work hours, but not disability status.

“He doesn’t take it to work with him. He doesn’t show up impaired. He’s not been a danger to his fellow firefighters, or to those people he rescues on a daily basis,” Holland said.

“He’s an exemplary employee, and that’s what needs to be taken into account. Here’s a guy that put his life on the line for his country overseas in combat and he puts his line on life every day for people in Buffalo. How can you not make a reasonable small accommodation?” he asked.