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Possession of marijuana sufficient to establish termination

Jurisdiction: - Newfoundland & Labrador
Sector: - Oil & Gas

The impending legalization of marijuana has generated a consistent buzz of articles and discussion on the implications for the workplace. As a potential harbinger of things to come, the Court of Appeal of Newfoundland and Labrador recently reversed a judgment on judicial review and upheld an arbitrator’s finding of just cause for possession of marijuana.

In Terra Nova Employers' Organization v. Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7, the court considered the circumstance of an employee found with a small amount of marijuana in his pocket during screening prior to boarding a transport helicopter to an offshore petroleum platform. The grievor expressed disbelief and surprise at the presence of the marijuana, but the employer terminated the grievor for breaching policies prohibiting possession of drugs and alcohol in the workplace. The arbitrator upheld the dismissal, citing the safety sensitive nature of the work and the need to establish a general deterrent.

On judicial review the court reversed the decision,incorporating the concept of mens rea into the employee’s act of possession, and finding that the employee could not be terminated for unintentionally breaching the policy.

The Court of Appeal rejected this finding, instead endorsing a ‘strict liability’ approach to enforcement of the policy. It also considered this approach consistent with the use of strict liability in regulatory offences where there is a public interest objective in safeguarding the welfare of society and protecting the public.

The presence of marijuana on certain worksites may become a regular occurrence as it becomes legal and possession routine. It is unlikely that in many contexts summary dismissal will be justified simply because someone incidentally has marijuana in, for example, their personal locker in a jacket pocket and there are no policies in place or evidence they intended to actually use it at work (take the example of someone who buys a bottle of wine on their break with the intention of taking it home after work). However, we can expect more decisions over the next few years that will start to establish where precisely the ‘fine line’ is found.