Oil sands worker fired unfairly over positive test resulting from social marijuana use five days before he was hired.
Edmonton (3 July 2006) - A judge on the Alberta Court of Queen's Bench has ruled that an oil sands construction company unfairly discriminated against a man by firing him after learning that he tested positive for marijuana in a pre-employment screening test.
The company, Kellogg, Brown & Root, had a zero tolerance policy when it hired John Chiasson, a non-unionized worker, as a receiving inspector in 2002 at the Syncrude plant in Fort McMurray. He took a urine test and was put to work immediately, but was immediately dismissed when the results came back positive nine days later.
There was no allegation that Chiasson used marijuana at work or that his drug use was anything beyond recreational use. Chiasson acknowledged smoking marijuana socially approximately five days before taking the test.
Unionized employees within the company were not required to undergo the same pre-employment testing.
Chiasson complained to the Alberta Human Rights and Citizenship Commission. It sided with the company, finding that no discrimination had occurred.
Tribunal decision reversed
That decision has now been overturned by Justice Sheilah Martin in the first Court of Queen's Bench.
The case involves not only the basic issue of pre-employment drug screening but anti-discrimination limitations set out in various employment and human rights laws, including those dealing with disabilities and the duty of employers to accommodate.
Judge Martin said she accepted the prohibition of "impairment at work" as a valid and compelling safety and security concern for the company.
"Employers have a legitimate interest in prohibiting drug use at work because it is dangerous and exposes employees to increased risk of accident or injury," she found.
But Martin said the company went too far in the case of Chiasson because it punished him for something that did not happen on the job and in the process affected his general livelihood.
"Such a stringent approach (zero tolerance) may be easy to enforce, but it takes no steps to accommodate the capacities and inherent worth of those applying for positions and does not satisfy the requirements set out (in related Supreme Court of Canada findings on the issue). The policy is too severe, more stringent than needed for a safe workplace and not sufficiently sensitive to individual capabilities."
She also said the necessity of the policy was undercut by the fact that it allowed unionized employees to work without taking tests and by the fact that it put Chiasson on the job before waiting to learn the results of his test.
Labour law experts have suggested the case will have more impact on what companies must do to accommodate employees who test positive than it will to stop pre-employment drug tests. NUPGE