Canadian Safety Reporter

February 2015

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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CSR | February 2015 | News ©2015 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel (on leave) Acting Publisher/Managing Editor Todd Humber Assistant Editor Mallory Hendry (416) 649-7898 Mallory.hendry@thomsonreuters.com Contributing Editors Liz Foster Sabrina Nanji Sarah Dobson Liz Bernier Jeffrey R. Smith Marketing Manager Mohammad Ali mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Shortly before the crew was scheduled to leave, they were asked to operate another train back instead of taking the taxi. When the taxi arrived, they in- formed the driver they would only be going to the train nearby instead of the longer trip — and larger fare — to Smiths Falls, and the driver became aggressive, raising his voice and swearing. The employee and the engineer got out of the taxi and the engi- neer called a trainmaster to take them to the train. When the trainmaster arrived, the engineer sat in the front of the truck and the conductor got in the back. The engineer was yell- ing and the trainmaster smelled alcohol on his breath. He called a superintendent. The engineer denied drinking but was told substance testing was going to be arranged. The conductor spoke with two other crew members who were going back to Smiths Falls and decided to ask the trainmaster if he could go back with them. However, the trainmaster smelled alcohol on the conductor's breath as well and reported this to the superin- tendent, who was on his way by this time. When the superintendent arrived, the conductor denied drinking but the superintendent observed him speaking slowly and deliberately. The conductor also smiled and asked the su- perintendent if he had noticed his new safety glasses, which the superintendent thought was an odd way to greet him. The super- intendent also observed the con- ductor's eyes weren't fully open and he was swaying slightly. He asked the conductor to come to his vehicle to talk. In the vehicle, the superinten- dent smelled "a stench of alco- hol" and the conductor seemed to be trying to keep a distance. The conductor was also slow to answer questions. The superintendent decided to order a substance test for the conductor as well. The other crew and the hotel's assistant manager were asked if they could smell alcohol and they confirmed they could not. The conductor said he would not submit to testing as he had not been drinking, nor had he been involved in any accident or altercation. He was given phone numbers for union representa- tives but could not reach any of them. But the superintendent did not want to delay the testing as it could affect the results. When the testing agent ar- rived, the engineer calmed down and agreed to testing. He regis- tered a blood alcohol level on two tests that was above the limit for intoxication. The superintendent informed the conductor of the implica- tions of refusing testing — it would be treated the same as a positive test, which would result in his removal from service and an investigation, with possible discipline up to and including dismissal. The conductor once again refused and was sent home — CPR later dismissed him from employment. The arbitrator found CPR had reasonable grounds to test the conductor. Though his symp- toms could have been the result of tiredness, both the trainmas- ter and the superintendent made independent assessments and came to the conclusion he had consumed alcohol. The assess- ments were made separately from the engineer and not as "an afterthought" related to the situ- ation with the taxi driver, which the union suggested in its griev- ance on behalf of the conductor. The arbitrator found the su- perintendent's time in the closed vehicle with the conductor in which he smelled alcohol and ob- served behaviour consistent with someone trying to conceal he had consumed alcohol provided enough evidence to warrant test- ing. The arbitrator also found the conductor's explanation that he was "very relaxed" wasn't credi- ble in the circumstances. The fact the others couldn't smell alcohol didn't change the observations of the superintendent and the train- master, said the arbitrator. Though the conductor was unable to contact union repre- sentatives, he was given reason- able opportunity to do so, as the testing agent arrived about 15 minutes after the conductor was first given phone numbers for union representatives and test- ing of the engineer took about 30 minutes, said the arbitrator. CPR's testing policy stated the testing must be done as soon as possible after the decision to test is made. "I am inclined to agree with the company that it was not unrea- sonable to refuse to wait any lon- ger in the hopes that the (conduc- tor's) calls would be imminently returned," said the arbitrator. CPR was entitled to draw a negative inference from the con- ductor's refusal to testing, as was made clear to him and was stated in the policy, said the arbitrator. Since he was in a safety-sensitive position, use of alcohol was a se- rious offence and CPR needed a strong deterrent for such behav- iour. "By refusing to undergo test- ing in the circumstances of this case, only one reasonable con- clusion can be drawn: The (con- ductor) was not being truthful in his denial of any involvement in drinking at the time he was confronted by (the trainmaster) in the hotel lobby and by (the su- perintendent) in his truck," said the arbitrator. See Canadian Pacific Railway and Teamsters Canada Rail Conference (Flinn), Re, 2014 Car- swell Nat 4752 (Can. Railway Office of Arb. & Dispute Resolution). CPR < pg. 1 Alcohol in safety-sensitive position 'serious off ence' CPR entitled to draw negative inference from conductor's refusal.

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