Random Drug And Alcohol Testing Decision Sent Back To Labour Board

Written on behalf of Arbesman Hamilton LLP

The Alberta Court of Appeal recently sided with an Alberta Court of Queen’s Bench decision, which found an arbitration board erred in ruling that an employer’s random drug and alcohol policy was an unreasonable exercise of its management rights.

Employer Institutes Random Drug and Alcohol Testing

The employer in question is one of Canada’s largest energy producers. It operates a large oil sands site near Fort McMurray, Alberta as well as another site about 120 kilometers north of Fort McMurray. Both sites are near environmentally sensitive areas, including the Athabasca River and populated communities.

The nature of the work done on the employer’s sites – including the use of heavy machinery and large vehicles – as well as the potential environmental impact of a workplace accident, mean that preventing drug and alcohol use on the sites is a significant priority.

On June 20, 2012, the employer announced it would introduce random drug and alcohol testing at the site closest to Fort McMurray (in Wood Buffalo). The employer indicated the testing would apply only to employees in safety-sensitive positions (which amounted to 82% of unionized employees), including the management team and CEO.

The policy stated that each week, 28 employees would be randomly selected by computer, and subjected to testing via a urine sample. 50% of all employees in safety-sensitive positions would be tested in a given year. The policy’s standard for sobriety was “fit for duty” which required an employee needs to be able “to safely and acceptably perform assigned duties without any limitations due to the use or after-effects of alcohol or drugs.”

The Union Files a Grievance

The union (Unifor), which represented some of the employer’s workforce, grieved the policy on July 19. The union’s grievance stated the policy was inconsistent with the collective agreement, common law, and the values set out in the Canadian Charter of Rights and Freedoms, Alberta’s Personal Information Protection Act, and the Alberta Human Rights Act.

Meanwhile, the employer argued that while the collective agreement did not specifically allow for such tests, the policy was a step in a series of policy changes they had made over the years to reduce accidents on the worksite, and that the policy was a reasonable exercise of their management rights under the collective agreement.

The Arbitration Board’s Decision

The arbitration board issued a decision on March 18, 2014. It ruled with the union, finding that the employer did not demonstrate sufficient safety concerns within the bargaining unit to justify random testing. The arbitration board cited the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (Irving), which “affirmed that a determination of whether a random alcohol testing policy was ‘reasonable’ requires an arbitrator to apply a carefully calibrated ‘balancing of interests’ proportionality approach, which had already been developed in arbitral jurisprudence.”

The arbitration board found the employer presented “unrefined” and “uncategorized” evidence of workplace accidents, drawing no distinction between unionized, non unionize, and management employees. The arbitration board also found the employer had failed to demonstrate a casual connection between drug and alcohol use and workplace accidents.

Decisions at The Court of Queen’s Bench and Court of Appeal

The Alberta Court of Queen’s Bench overturned the original decision and sent the matter back to be arbitrated once more. In its decision, the court stated the board had imposed more stringent requirements on the employer than what was outlined in Irving. Secondly, the court found the board had made an error by only considering workplace accidents by union employees as evidence of whether the testing was necessary. Instead, the court said that all employee accidents should be considered. The court also found the board had failed to consider all of the relevant evidence.

The union appealed the court’s decision before the Alberta Court of Appeal. In ruling in favour of the employer, the court needed only to look at the second reason behind the Court of Queen’s Bench decision, specifically that the board made an error in only considering evidence around drugs and alcohol problems as they relate to the bargaining unit. The court turned to Irving, which stated, “the dangerousness of a workplace … has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.” The board had rejected evidence of drug and alcohol abuse among non-unionized employees. The court agreed that this set the evidentiary bar too high.

The union has stated it intends to appeal to the Supreme Court of Canada. We will be sure to provide you with an update should its appeal be heard.

At Arbesman Hamilton LLP, we represent both employers and employees in all employment law matters. We can help employers draft contracts and policies that are clear in an aim to reduce subsequent problems with them. We also help employees understand their rights, including whether or not a contract or policy they work under violates any of their rights. Contact us online or call us at 416-481-5604 to schedule a consultation.