The Hibernia Platform Employers’ Organization (HPEO) has lost its appeal of an arbitration award that reinstated a unionized worker who was fired for using CBD oil to treat colitis.
HPEO is an employer’s organization representing the various contractors who operated onboard the Hibernia Platform off the coast of Newfoundland and Labrador.
The worker, SP, was an operations technician with the Hibernia Management Development Corporation (HDMC). He worked on the platform, in some capacity, for 16 years. From 2019 until the spring of 2020, SP began experiencing stomach problems that at one point required an emergency helicopter flight to an emergency room. He was diagnosed with colitis.
SP tried several medications, which came with undesirable side effects. On Nov. 14, 2020, he was again flown to an on-shore emergency room via helicopter following a flare-up. Around that time, he had a conversation with his doctor about a trial of CBD oil.
He began taking CBD oil and, after increasing the dosage and consuming it with food, he started to experience relief from his colitis symptoms. The CBD oil he took was purchased over-the-counter and contained 25 mg/ml of CBD and 0-1 mg/ml of THC.
Positive drug test
On Jan. 26, 2021, as part of his recertification process, he underwent a routine alcohol and drug test. He passed the test, which is set at 20 mg/ml. However, THC metabolites were present on the secondary confirmation test, which was calibrated to a lower threshold of 15 mg/ml.
On Feb. 2, 2021, his manager called him to discuss the results. SP said he took the oil to help with the colitis and his anxiety. The next day, the manager wrote to him to advise he was holding a decision on discipline until additional information was available from a medical assessment.
SP was told to contact a company nurse to arrange the assessment. He met with a medical assessor, who examined his family history and his clinical history — there was no history of substance abuse and he indeed had ulcerative colitis. The assessor found no evidence of dependency or other explanation for the positive result.
That doctor opined, in a report dated March 30, 2021, that there were no limitations or restrictions that could affect his job performance. Nor were there any safety concerns with him returning to work. In keeping with the employer’s zero tolerance policy, the doctor suggested random testing every six months for the next two years to ensure compliance with work and safety regulations.
Termination
Despite that opinion, on May 6, 2021, SP was advised that he had been permanently removed from the HDMC platform and terminated for cause.
He was referred to the company’s alcohol and drug policy and informed that, because he tested positive for cannabinoids during the recertification process, he violated article 38 of the collective agreement.
SP grieved the termination. The arbitrator granted an award in his favour and substituted a three-month suspension in place of the termination.
The arbitrator concluded that the policy was a “legitimate” part of the collective agreement. But the agreement required HPEO to conduct an investigation before determining discipline and it did not do so.
Employer’s appeal
HPEO appealed the arbitrator’s ruling to the Supreme Court of Newfoundland and Labrador.
The court found the record supported the conclusion that SP’s explanation for the positive test was a plausible one supported by expert opinion and the outcome was “acceptable and defensible.”
The court dismissed the application and awarded costs to the union, Unifor, on a Column III basis.
For more information, see Hibernia Platform Employers’ Organization v. Unifor (Local 2121), 2023 NLSC 144 (CanLII)
