Over the past few years, we have seen countless cases in which dismissed employees have argued that, for one reason or another, they should not be held to the terms of the termination clause in their employment agreement. While the cases have taken a variety of approaches and made it difficult to identify a guiding principle that would withstand the next decision, the recent trend seems to be a willingness to enforce the intent of the parties.
It is well established that employers have a duty to investigate allegations of misconduct prior to dismissal for cause. Any suggestion that an employer made up its mind prematurely could expose an employer to undesirable consequences such as substantially increased liability, bad PR, and in some cases, the reinstatement of the employee.
In Toronto Transit Commission and ATU Local 113 (Smith), the employee was dismissed for sleeping on the job and refusing to take a drug test. However, the Arbitrator held that the employee should be reinstated because the employer failed to conduct an investigation before dismissal.
The grievor, David Smith (“Smith”), was employed by the Toronto Transit Commission (“TTC”) as a Subway Track Mechanic.
On April 8, 2015, Smith arrived at work about forty-five minutes early. As he was feeling tired, he decided to take a nap until the start of his shift. Unfortunately, Smith overslept and his manager observed him sleeping when he should have been working. His manager tried to wake him but was unsuccessful. As a result, his manager ordered a Fitness for Duty (FFD) drug test because he thought Smith wasn’t waking up because he was under the influence of drugs.
Smith ultimately woke up and he was advised by two supervisors to wait in the conference room. The two supervisors testified that Smith exhibited fatigue, exhaustion, and his speech was slow and slurred.
Whilst in the conference room, Smith was advised by the Chief Supervisor that she would be carrying out an FFD. Upon being told this, Smith became very upset and angry. Those present in the room testified that his speech was not slow or slurred and he appeared very alert.
Smith was advised that refusing to take the test was the same as failing the test. He asked whether he was being relieved of his duties and when he was told yes, he stormed out of the conference room.
As a result, Smith’s employment was terminated for sleeping on the job and refusal to take an FFD. Both offences were in violation of the TTC’s policies and the collective agreement.
Refusal to Take FFD
The Arbitrator noted that the relevant question was not whether it was reasonable for Smith to refuse to take the FFD but whether the TTC had reasonable grounds to demand that he take the FFD. The Arbitrator concluded that the TTC did not have “reasonable grounds” to make such a request.
The Arbitrator held that the decision to order a drug test was “completely unreasonable and the actions of the [manager] that night put into play a process that was ultimately unfair and inappropriate.” The Arbitrator noted the “negative history” between Smith and the individual that ordered the test and suspected that the history between them was one of the reasons why he requested an FFD test without making any attempt to determine if one was necessary.
The Arbitrator found that the decision to require a drug test was completely unreasonable and put into play a process that was ultimately unfair and inappropriate.
Had the TTC taken the time to properly investigate and ask Smith for an explanation, they would have arrived at the conclusion that a drug test was not warranted.
Sleeping on the Job
The Arbitrator concluded that it was “irresponsible and reckless” for Smith to try to sleep for forty-five minutes given how tired he was. She noted that he had been disciplined on numerous occasions for sleeping on the job and lateness. His most recent warning was four months earlier, where he was warned that further incidents of sleeping on the job may lead to discipline up to and including dismissal.
Given her decision regarding the TTC’s decision to demand that Smith submit to an FFD, the Arbitrator determined that dismissal was too “severe a penalty.” However, the Arbitrator found that Smith’s decision to sleep in his car on the night of the incident was a “flagrant disregard for the consequences” and it required a significant disciplinary response.
In the circumstances, the Arbitrator ordered that Smith’s dismissal should be substituted for a thirty-day unpaid suspension and the imposition of a last chance agreement. The Arbitrator also cautioned Smith to learn from this experience and to take advantage of the opportunity that he has been given to improve his relationship with his employers and not repeat the same mistakes.
This case is another in a long list of cautionary tales where employers have been penalized for acting hastily and failing to conduct an investigation before dismissing an employee for alleged misconduct.
The law is quite clear that some form of investigation must be undertaken. There is no one way to carry out an investigation; the form the investigation takes will depend on the circumstances. For example, in this case, the TTC should have given Smith an opportunity to explain why he appeared to be so tried and why his speech was slow and slurred. As the Arbitrator pointed out, had they done so they would have come to the conclusion that an FFD was not necessary. It is also important to note that whatever form your investigation takes, the person tasked with conducting the investigation must proceed fairly and objectively.
The Arbitrator also cautioned that this decision should not be interpreted as a general endorsement for employees to refuse drug tests. Had Smith agreed to the drug test he would have passed and he would have avoided the consequences that flowed from losing his job.