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Corporation fires man ... then fights decision

Cautious: The Corporation of Hamilton sought legal advice to contest its own decision to fire a worker, who was involved in accidents such as striking a parked car with a payloader and hitting a vehicle with a JCB (File photo by Mark Tatem)

The Corporation of Hamilton sought legal counsel to contest its own management’s decision to fire a worker who repeatedly tested positive for cannabis use and had three accidents on the job.

The attempt to challenge the dismissal was revealed by a source close to the administration, who said the Corporation had spent millions on legal bills during its tenure.

Cannabis use was detected in connection with two accidents, and the member of staff lost his job on January 9 last year.

The Corporation’s board met this month and voted to follow the alternative legal opinion maintaining that the equipment operator had been unfairly dismissed.

However, fresh advice obtained by City Hall’s manager of human resources described the dissenting second opinion as “flawed”.

“We should also caution the Corporation to give serious consideration to the insurance aspect of this matter,” adds the letter from Marshall Diel and Myers Limited.

“If the Corporation is seen to have condoned the conduct of the employee, it may put at risk coverage under its public liability policy should a further accident occur that subjects members of the public to physical harm.”

An initial opinion provided by the firm, from September of last year, states that the man in question had been employed by the City since 1999 as an operator of heavy equipment.

On May 19, 2011, he struck a parked car with a payloader, subsequently tested positive for marijuana, and was suspended for two weeks.

The man was referred to the Employee Assistance Programme for “absenteeism and substance abuse”, the legal opinion said.

Although he was found to be drug-free the next month, there was another crash on December 16, when the employee hit the back of a stationary vehicle with a JCB.

No drug or alcohol test was administered because he did not report the accident until “several days later”, resulting in a verbal warning.

On November 15, 2013, the man was found to be at fault for a third accident, in which a heavy vehicle called a telehandler hit a parked car.

That same day, he tested positive for cannabis, and was again suspended for two weeks.

A random drug screening was then ordered for the next six months.

The man was warned that if he tested positive again after a minimum of one month from the date of his second suspension letter, his job with the City would be terminated immediately.

A random test on January 9 last year indicated cannabis use, and the man was fired the following day, with a letter citing a “zero tolerance” for drug abuse that put City employees and the general public at risk.

The City source said that the employee had been well liked by his immediate bosses, while the board “did not like the idea of a young black man being fired”.

The City’s human resources obtained legal backing showing that the summary dismissal of the employee had been justified.

“He has charge of heavy machinery and on a number of occasions has lost control of the equipment causing damage to parked vehicles,” the legal opinion states.

“The employee poses an ongoing safety hazard to life and property which cannot be tolerated.

“The employee’s marijuana use and the number of accidents that he has had on the job were clearly breached by the employee not once but at least twice — the employee has a history of committing the same breach and ignored warnings and offers of assistance.

“Additionally, the City followed the proper discipline and dismissal procedures.”

However, the City’s board hired J2Chambers to challenge the man’s dismissal.

That second opinion, issued in November, said there had been “unease” in the Corporation of Hamilton about the decision, with some members of the Corporation “not sure the man was lawfully dismissed”.

The second opinion argued that the man’s use of an illicit drug had not been strongly linked to his accidents and that taking cannabis while off the job did not represent misconduct. There had been insufficient investigation of the matter to justify firing him.

A new legal opinion from Marshall Diel and Myers strongly disagreed, responding that a Bermuda Court would “more likely than not” find a link — and that the man fired had been aware of and agreed to the Corporation’s drug policy. “All that is required is for the Corporation to undertake a reasonable assessment of the circumstances, and not a full forensic ‘investigation’ as suggested in the second opinion,” the document added.

According to sources inside the City, the man in question has not been hired back and has found employment elsewhere.

The case was presented as an example of the Corporation’s overly zealous recourse to lawyers.

It comes as the Corporation is due to return to the Supreme Court this afternoon, in a case against Attorney General Trevor Moniz that is due to be heard in chambers by Chief Justice Ian Kawaley.