A labour arbitration board has upheld the Town of Kindersley's move to fire an employee for vaping medical marijuana, after patrons of an arena complained he was "smoking the dope" while driving a Zamboni and his coworkers later complained he vaped while driving a town vehicle.
Jesse Desjarlais, 41, had worked for the town, located about about 200 kilometres southwest of Saskatoon, for two years. He had a clean disciplinary record, according to a Saskatchewan Labour Arbitration Awards' decision issued on April 18.
His doctor had informed his town employers that Desjarlais had a prescription to vape marijuana during the workday, but with the restriction he should not operate the town Zamboni, forklift or lawn mower for 20 to 30 minutes after vaping.
In 2015, his manager was fielding concerns from patrons at the arena that Desjarlais smelled of marijuana and was using marijuana while driving the Zamboni, according to the document.
The town put him on administrative leave, and then decided to move him into a less stressful role with the parks, division a move that was also supported by Desjarlais and his union, the Canadian Union of Public Employees.
The move seemed to work out, with Desjarlais vaping in the morning, midday and afternoon but following time restrictions that he couldn't operate equipment after vaping.
However on April 1, 2016, Desjarlais went on a trip to Humboldt in a town vehicle, accompanied by two co-workers. One co-worker reported seeing Desjarlais vaping and puffing smoke while driving, while the other co-worker testified to smelling marijuana and hearing the beep of his vaporizer in the journey.
Desjarlais acknowledged he had loaded the vaporizer to bring on the trip, but denied using it while on the drive.
The town launched an investigation, and said it obtained "credible, direct evidence which was corroborated by more than one source" that he had used marijuana before and during his operation of a town vehicle. The town terminated his employment in May of 2016.
His union filed a grievance on his behalf, saying the allegations and termination had a serious impact on Desjarlais. It asked the arbitration board to compensate Desjarlais for all lost wages and benefits as a result of his termination.
'Misconduct warranting discipline'
The chairman arbitrator agreed with the employer's nominee that Desjarlais' use of marijuana was "misconduct warranting discipline," and that the decision to fire Desjarlais was not excessive discipline, given the circumstances.
"For clarification, we do not endorse the referenced restriction of 20 to 30 minutes as an acceptable waiting period before it is safe to operate equipment," stated the decision. However, the employer and employee had agreed on this restriction, so it became part of his accommodation, they wrote.
They retaliated against the author for his Facebook post, exaggerating or, at best, misunderstanding what they saw of his medical marijuana.- Union nominee Andrew Huculak on witness reports
Andrew Huculak, the union nominee, offered a dissenting opinion, saying he found Desjarlais "honest and forthright" about the trip to Humboldt and about his frustrations with the town's attempts to invalidate his prescription and legitimate use of medical marijuana.
"He was well aware of his doctor's orders regarding the guidelines to be followed at work and in my opinion, he did not vary from those guidelines," wrote Huculak.
Huculak said there were many "conflicting" stories from Desjarlais' two co-workers, saying he believed their complaints were prompted by a negative Facebook post Desjarlais had made involving them.
"They retaliated against the author for his Facebook post, exaggerating or, at best, misunderstanding what they saw of his medical marijuana," he wrote, giving his dissenting opinion from the two others that he would have allowed the grievance.