A grievance concerning an elevator builder accused of being high on the job turned out to be an open and shut case.
Ryan Prime was part of a two-man team installing elevators in a new seniors complex in Hammonds Plains when he was accused last October of smoking weed one morning before work.
He was terminated from his job with Kone, Inc. for breaching its drug and alcohol policy by allegedly smoking marijuana.
Prime’s union grieved the dismissal, and arbitrator Eric Slone ruled in Prime’s favour on Saturday after holding a hearing last week.
“Elevator construction is dangerous work, and there is no place for employees whose faculties are impaired by intoxicants, whether they are legally available or not. Such a person would be a risk to himself, his co-workers and other people who might be present at the time,” Slone wrote in his decision. “On the other hand, an individual who is accused of being in breach of such a policy, with the serious career and financial consequences that it brings, is entitled to have the case against him proved properly.”
The project manager on the site, David Plummer, testified that as he walked from his vehicle to the site on Oct. 22 he was close to Prime’s parked Jeep, and smelled what he believed to be cannabis. He also saw a smoky haze and what he described as a furtive gesture by Prime, sitting in the vehicle.
Later, Plummer spoke to Prime’s supervisor, who then consulted a manager. Those two consulted the company’s policy and decided to terminate Prime.
'the evidence of Mr. Plummer has some inherent weaknesses.'
When the supervisor handed Prime a termination letter, Prime became upset and adamantly disputed that he had been smoking marijuana. He admitted that he did smoke marijuana when not working, and showed the supervisor a bag of marijuana that he had in his car.
During the arbitration hearing, the supervisor conceded that he saw no signs of impairment when he was with Prime that morning. He testified that he took the word of Plummer over that of Prime because he didn’t believe Plummer had any reason to make up the allegation.
Prime’s testimony was that he does smoke marijuana in his vehicle, typically after work while waiting to pick up his wife.
He said his vehicle did smell strongly of marijuana even when he was not actively smoking, which he knew because other people had noticed it.
Prime also said he was aware of the company’s drug and alcohol policy and supported its objectives, because elevator work is inherently dangerous.
In his decision, the arbitrator said the only evidence to support the termination was Plummer’s evidence that he smelled marijuana as he walked by Prime’s Jeep.
“The employer’s case is that if Mr. Plummer smelled marijuana, then the grievor must have been smoking marijuana,” wrote Slone. '... the evidence of Mr. Plummer has some inherent weaknesses. Mr. Plummer did not see much of anything. The evidence that he saw the grievor become startled and move to conceal something, does not mean much.
“It all comes down to what Mr. Plummer smelled. Did he smell fresh marijuana smoke, or the fumes from a vehicle which had been smoked in many times? While it is a matter of general experience that there is a distinct 'skunky' smell of marijuana that differs from most ordinary domestic cigarettes, there is no evidentiary basis to conclude that Mr. Plummer has a great deal of experience with the various types of smell that may be associated with cannabis.”
Slone also wrote that Prime’s habitual lateness likely played a part in Kone deciding to terminate him.
He ordered Prime reinstated with “full compensation for the losses that he has incurred.”
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