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Man Fired For Smoking Weed Gets His Job Back With Bonus Compensation

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By Nick Lindsey

The question of how employers will handle drug tests grows more complicated as cannabis becomes legal in more places. This is especially true in Canada right now, as full legalization is on the immediate horizon. Most recently, as a man fired for smoking weed gets his job back with bonus compensation in Thunder Bay, Ontario, many of these questions are coming into better focus.

In October 2017, two workers at Bombardier Transportation were fired after a supervisor said he saw them smoking weed at work. More specifically, the supervisor said he saw the men taking their afternoon break outdoors. He said he smelled a strong odor of marijuana coming from their direction and saw smoke.

Further, the supervisor said that when he approached the men, he saw one of them toss something to the ground. The object smoldered and then went out. However, the supervisor was unable to find anything when he searched the ground.

Despite not finding any physical evidence, the supervisor brought the two men to Human Resources. Throughout the entire incident, the two men insisted that they hadn’t been smoking weed. They also said that they would probably fail a drug test since they smoked at home on their own time. Regardless, the company fired both men.

Now, a few months later, one of the men has been reinstated. His co-worker’s case is still ongoing. But for the man who got his job back, things have worked out pretty well.

The arbitrator handling his case said that Bombardier Transportation did not have just cause to fire him. As a result, the company was required to give him his job back with no loss of seniority. Additionally, the company had to compensate the man for lost income during his months of unemployment.

“He was not seen smoking, exhaling, or disposing of drugs or paraphernalia,” arbitrator Paul Craven told TB News Watch. “The company has not demonstrated that it is more probable that the grievor smoked marijuana on its property on October 5 than he did not.

Along with citing lack of evidence, Craven also brought up the issue of Canada’s pending legalization. Similarly, he cited concerns with drug testing protocols. In particular, Craven said that drug tests do not accurately determine whether or not a person is impaired at the time the test is administered.

“It has become notorious that current tests for cannabinoids are incapable of demonstrating either present impairment or recent consumption,” he said. He added that companies like Bombardier “might well consider other more reliable methods of assessing impairment and/or alternative policy approaches to the problem of marijuana use in the workplace.”

Ultimately, this case also highlights questions about employment and legal weed. Canada is preparing for federal legalization, which is scheduled to occur sometime this summer. In the age of legalization, many have wondered if it makes sense to allow companies to screen employees or potential employees for marijuana use. This particular case suggests that policy could be moving toward protecting cannabis users.

Original Publication in HighTimes.