An arbitrator has overturned the suspension of a Canadian Pacific Kansas City (CPKC) Railway locomotive engineer and quashed the company’s mandate for six months of random drug testing, ruling the employee was not impaired during work hours despite testing positive for cannabis in a post-incident drug screening.
The ruling, issued by arbitrator James Cameron, concerned locomotive engineer J.D. of Saskatoon, who was initially suspended for 30 days following a positive test for THC in his system after a March 2022 train securement incident. The company also imposed six months of unannounced drug testing as part of its disciplinary measures. However, the arbitrator found the suspension and subsequent random testing to be unjustified based on the evidence.
Marijuana candy
J.D. had admitted to consuming a marijuana candy approximately 16.5 hours before his shift, but his oral swab and breathalyzer results came back negative, indicating no impairment at the time of the incident. The sole positive result was from a urinalysis, which showed the presence of cannabis metabolites. The arbitrator ruled that this did not prove impairment during his work duties.
“The presence of drugs or alcohol in the system of an employee does not permit the employer to impose discipline,” the ruling stated. “A positive urinalysis test would indicate that the subject ingested marijuana at an earlier point, perhaps days or weeks in the past, without any indication as to the precise time, place or quantity of the consumption. Standing alone, therefore, a positive drug test cannot be just cause for discipline.”
The case stemmed from J.D.’s suspension, which followed CPKC’s internal investigation into a train securement incident. While the company initially imposed a 40-day suspension for his role in the incident, a separate 30-day suspension was levied due to the positive THC result, with the company arguing that its 28-day cannabis ban under its Drug and Alcohol Policy was violated.
The Teamsters Canada Rail Conference, representing J.D., challenged both the suspension and the random testing requirement, arguing that a non-negative drug test alone does not equate to impairment and that the discipline was excessive and unnecessary. The union also emphasized that J.D. had previously passed two drug and alcohol tests and had no prior violations related to substance use.
Issue is impairment, not presence of drugs
The arbitrator agreed with the union, pointing to long-standing arbitral jurisprudence in the railway industry. “CROA jurisprudence for many years has been consistent that the issue is impairment, not the presence of drugs or alcohol in the system of an employee,” Cameron wrote, citing previous cases that found positive urinalysis results insufficient grounds for discipline in the absence of proven impairment.
CPKC had relied on its Hybrid Discipline and Accountability Guidelines, which recommend suspensions and random drug testing for first-time positive substance tests. However, the arbitrator ruled that in the absence of impairment, these measures were inappropriate in J.D.’s case.
“There is no good reason to impose six months of random testing,” Cameron wrote. He noted that random testing is typically imposed only in cases involving employees returning to work after a finding of on-the-job impairment or for those with substance abuse issues. In this instance, Cameron found neither of these conditions applied.
Safety concerns
The company argued that safety concerns justified both the discipline and the random testing, given that J.D. held a safety-critical position. However, the arbitrator concluded that his candidness during the investigation and the lack of evidence showing impairment undermined the need for such testing.
“Privacy rights will bend to the need for workplace safety in the face of either workplace or personal conditions which require testing,” Cameron noted. “Absent those workplace or personal conditions, bodily integrity will be respected.”
The arbitrator ordered CPKC to remove the 30-day suspension from J.D.’s record and to make him whole for lost wages and benefits associated with the suspension. The mandate for random testing was also quashed, with Cameron finding that it “would fly in the face of the decision of the Supreme Court of Canada in Irving and CROA jurisprudence.”
For more information, see Canadian Pacific Kansas City Railway v Teamsters Canada Rail Conference, 2024 CanLII 87118 (CA LA).
