The employer bears the onus of proving just cause. In other words, the employer must prove, on a balance of probabilities, that the employee engaged in misconduct and that this amounts to just cause for the imposition of some sort of discipline.
Where the employer can’t prove the misconduct, it’s game over. The recent case of Bombardier Transportation (Thunder Bay Plant) 2018 CanLII 25604 is a case in point. Two employees were terminated for just cause for allegedly smoking marijuana in the workplace in contravention of the employer’s drug and alcohol policy. The policy prohibited “employees and others on its premises ‘from being under the influence, consuming, using, possessing or trafficking drugs or alcohol . . . anywhere on the company premises.’ The policy also provided for drug testing in certain circumstances, including where a supervisor “has reasonable grounds to believe ‘that an employee is or may be unable to work in a safe manner because of the use of drugs and/or alcohol’.
Of note is that the union did not challenge the policy.
According to the arbitrator:
The grievor tested positive for THC, an active component of marijuana. He denies having smoked marijuana in the workplace and maintains that the positive test result is a consequence of his regular off-duty marijuana use to address various health issues. While neither party led informed evidence about the significance of the test results, both appear to accept that a positive result merely indicates the presence of THC in the system without necessarily identifying either present impairment or recent consumption. [emphasis added]
The grievor and the other employee were terminated. The union did not argue that the termination was discriminatory on the grounds of disability contrary to the Human Rights Code or the collective agreement. The union’s position was that the grievor did not smoke marijuana in the workplace.
The grievor initially indicated that he had been prescribed medical marijuana, which proved not to be accurate. He was self-medicating at the time, though did obtain a prescription post-termination.
Circumstantial evidence was led by the employer to prove the incident. A meeting with the grievor and the other employee and the company called three (3) witnesses. Two witnesses testified that there were no signs of impairment while one witness testified that the grievor’s “eyes appeared ‘glossy’ and that he seemed ‘jittery’ but added that many people would show signs of agitation in such a setting.” Notwithstanding that, the company completed the form authorizing drug testing that there were signs of impairment. The grievor denied smoking marijuana at work.
The arbitrator resolved the credibility issues as follows:
The grievor’s claims during the investigation were mendacious. His testimony at the hearing was self-serving. Mr. Stewart’s eye witness account was disinterested and restrained, notwithstanding my misgivings about the ‘reasonable cause’ card. In all the circumstances I have concluded that Mr. Stewart’s observations are to be preferred to the grievor’s where their accounts differ. For reasons set out above they are more “in accordance with the preponderance of probabilities in the case,” to quote the well-known judgment of O’Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA),  2 D.L.R. 354 (B.C.C.A.).
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In my opinion Mr. Stewart’s eye-witness account does not compel the conclusion that the grievor was probably smoking marijuana. He was not seen smoking, exhaling or disposing of drugs or paraphernalia. Mr. Stewart detected the smell of marijuana smoke in the area and later in the Human Resources boardroom but was unable to say that it emanated specifically from the grievor. Mr. Stewart was the only participant in the October 5 meeting to have detected the smell and he is also the only participant to have mentioned a sign of potential impairment,‘glossy eyes,’ which is equally consistent with testimony from Company and Union witnesses that the grievor cried. The grievor’s anxiety and upset at the investigation meeting is consistent with fear that he would lose his job following an inevitably positive drug test and perhaps also with anger that he was being falsely accused. It is also consistent with the little we know of his medical history.
In all the circumstances, the Company failed to demonstrate that it was more probable than not that the grievor smoked marijuana on its property. The company could not prove the misconduct and, as such, the grievance was allowed, the grievor was reinstated in his employment without loss of seniority and is to be made whole with respect to lost earnings (less mitigation earnings).