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Digest of the Week | Insubordination

Employee working in offshore petroleum production was found in possession of small quantity of marijuana prior to boarding flight to offshore platform; employer had strict policy prohibiting all illegal drugs or alcohol in offshore work environment


Terra Nova Employers' Organization v. Communications, Energy and Paperworkers Union, Local 2121| 2018 NLCA 7 | Newfoundland Court of Appeal


Labour and employment law --- Labour law — Discipline and termination — Grounds — Insubordination — Violation of company rule — Miscellaneous


Employee worked on offshore petroleum production platform — Employer had strict policy prohibiting all illegal drugs or alcohol in offshore work environment — Prior to boarding flight to offshore platform, employee was found in possession of small quantity of marijuana wrapped in tinfoil — No charges were laid against employee — Employee was subsequently dismissed for possession of illegal drug, contrary to policy — Arbitrator accepted employee's evidence that marijuana was left over from hunting trip and employee had forgotten it was in his pocket — Arbitrator concluded that employee was in possession of illegal drugs in violation of policy — Union's application for judicial review was granted — Trial judge found policy only prohibited employees from being in possession of illegal drug while on company facility or while performing company business — Trial judge found arbitrator confused simple possession with possession in violation of policy — Trial judge found presence of marijuana in employee's jeans did not violate policy — Arbitrator's decision was quashed and grievance allowed — Employer appealed — Appeal allowed — Trial judge did not assess reasonableness of arbitrator's approach as required but instead erroneously substituted his view that element of mens rea must be incorporated into interpretation of employer's policy — Arbitrator's interpretation of policy using concept of strict liability was reasonable — Arbitrator's decision fell within range of possible, acceptable outcomes.
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