Case In Point
Arbitrator Reinstates Steelworker in Safety Sensitive Role Following Termination for Cannabis Use During Lunch Break
Date: February 18, 2026
In MSC Toronto O/a Continuous Colour Coat Limited v United Steelworkers Local 3950-65, 2026 CanLII 6010, Arbitrator Rishi Bandhu reinstated a steelworker who held a safety-sensitive position after his employment was terminated for, among other things, smoking cannabis during his lunch break and returning to work in violation of a policy that prohibited reporting to work under the influence of an intoxicant.
The arbitrator found that although the grievor engaged in misconduct that warranted discipline, the termination of his employment was excessive. Accordingly, the arbitrator ordered the grievor’s reinstatement without backpay, and that the grievor’s disciplinary record reflect a three-month suspension.
This award underscores the critical importance of precision in drafting drug and alcohol and fitness for duty policies. It highlights that when an employer’s policy provides a range of disciplinary actions upon an employee reporting to work under the influence of drugs or alcohol, it will be open to the arbitrator to choose a penalty from the range in any employee grievance relating to such conduct.
Background
The employer produced custom coil-coated steel products, with continuously operating production lines, at a plant that was a safety sensitive operation. The grievor was employed as a “Utility Operator.” His responsibilities included the operation of a console that controlled the “paint line”, including parameters for the production line’s speed, tension, and cutting of steel coils. The parties agreed that the duties of this position were “psychologically demanding” and that if the operator did not have “all of their ‘senses’”, it would be hazardous to operate the console.
Plant Rule No. 5 (Rule) provided:
“… reporting to work under the influence of alcohol or other intoxicants… may lead to disciplinary action up to and including termination.”
On July 8, 2025, the grievor left the worksite to take a walk around the neighbourhood during his lunch break. While on his walk, the grievor encountered the Quality Manager who “smelled cannabis and the odour grew stronger as he approached where [the grievor] was standing.” The Quality Manager observed that the [grievor] was smoking what appeared to be a “hand-rolled joint”. He was confident the grievor was smoking cannabis.
Concerned that the grievor would return to work in an impaired state, the Quality Manager sought to report the incident to the General Manager. However, because the General Manager’s door was closed, the Quality Manager returned to work and brought the matter to the General Manager’s attention the following day.
On July 9, 2025, the Operations Manager met with the grievor and expressed concern that he was smoking “something other than tobacco while on duty.” The grievor denied that he had been smoking cannabis. The Operations Manager informed the grievor that his employment would be suspended pending the completion of an investigation. In response, the grievor insulted and swore at the Operations Manager.
On July 15, 2024, the employer concluded its investigation. It determined that there was sufficient evidence to conclude that the grievor smoked cannabis on his lunch break. For that reason, and because of the grievor’s insolent and disrespectful behaviour, the employer terminated the grievor’s employment.
Prior to this incident, the grievor received formal discipline twice. There was suspicion that the grievor had smoked cannabis on one of these two occasions, but he was not disciplined for doing so.
Did the Grievor Commit Misconduct?
Arbitrator Bandhu emphasized that the standard of proof was “clear, convincing and cogent evidence, on a balance of probabilities.” He accepted the Quality Manager’s evidence that the grievor was smoking cannabis, stating that “the smell of cannabis while it is being smoked, is clear and cogent evidence of cannabis use in the moment.”
With respect to whether the grievor’s use of cannabis constituted misconduct, the arbitrator noted that the relevant question was “whether the timing of [the grievor’s] use of cannabis…constituted workplace misconduct.” Referring to the Rule, the arbitrator concluded that cannabis was an “intoxicant,” and that the grievor would have recommenced his duties on the control panel after lunch “within a window of time that he was under the influence of cannabis.” Accordingly, the arbitrator concluded that the grievor breached the Rule and, in doing so, committed misconduct.
The arbitrator also found that the grievor’s “insolent behaviour towards a high-ranking management employee” constituted significant misconduct that clearly warranted discipline.
Was Termination the Appropriate Penalty?
Noting that he had discretion under section 48(17) of Ontario’s Labour Relations Act to substitute the employee’s employment termination for a lesser penalty, Arbitrator Bandhu considered both aggravating factors (suggesting a more severe penalty is appropriate) and mitigating factors (suggesting a less severe penalty is appropriate).
With respect to aggravating factors, the arbitrator noted the safety sensitive nature of the plant and the grievor’s role and duties. He also emphasized that the grievor used cannabis during working hours knowing it was not permitted, was dishonest about his cannabis use, and highly disrespectful towards the Operations Manager when confronted about it. Additionally, the arbitrator observed the grievor’s failure to apologize, and the two prior disciplinary incidents.
With respect to mitigating factors, Arbitrator Bandhu noted that there had been no safety incident or evidence of diminished productivity, the grievor acknowledged he behaved in an insolent manner, and that, except for the two incidents requiring discipline, his work performance was satisfactory. Finally, the arbitrator emphasized that the grievor had nine years of service which, except for the two disciplinary incidents, were discipline free.
The arbitrator ordered the grievor’s immediate reinstatement. However, he resisted ordering retroactive wages, and ordered that the grievor’s disciplinary record reflect a 3-month suspension. Arbitrator Bandhu stated that these decisions reflected the grievor’s “aggravating misconduct”, and the need to demonstrate respect and professionalism.
The arbitrator determined that in considering the appropriate penalty, he was required to place “primary importance” on the Rule, observing that it “effectively contemplates a range of disciplinary consequences,” and stated that, in his view, consideration should also be given to “any evidence of impairment.” He noted that the employer acknowledged there was no evidence of impairment and that, specifically, there was no evidence of “diminished motor skills or alertness or even poor performance.” Arbitrator Bandhu observed that by the time the employer became aware of the manager’s observation, it was too late to determine whether the grievor was impaired on the previous day. Moreover, he noted that he lacked evidence of how much cannabis the grievor consumed prior to returning to work, or of how much THC he consumed.
In the circumstances, the arbitrator concluded that the grievor “used cannabis during work hours and reported to work under its influence,” and that without evidence of impairment, discharge was excessive. Instead, Arbitrator Bandhu determined that a 3-month suspension for violating the Rule and for insolent behaviour towards a senior manager, was “a just and reasonable penalty”. The arbitrator declined to make an order of retroactive wages for any period of time that the grievor’s employment was not suspended under his award, highlighting that the grievor’s insolence was a particular circumstance that influenced this decision.
Considerations For Drafting Drug and Alcohol and Fitness For Duty Policies
When HR professionals are drafting their drug and alcohol and fitness for duty policies, it is prudent for them to consider exactly what they want the penalty to be upon an employee reporting to work under the influence of drugs or alcohol. It is then advisable to explicitly describe that penalty, and the precise nature of the evidence required to prove the misconduct occurred, clearly and in detail, in the body of the policy, to minimize the risk of misinterpretation in the future.
For assistance with workplace drug and alcohol and fitness for duty policies consult Henry Y. Dinsdale, Dianne E. Jozefacki, Amanda P. Cohen, Gabrielle A. Lemoine or Matthew K. Wronko.
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