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Are Random Drug and Alcohol Testing in the Workplace Enforceable?

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

Background

Irving Pulp & Paper Ltd. (“Irving”) operates a paper mill in New Brunswick. Between 1991 and 2006, Irving had no formal policy regarding alcohol consumption and drug use.  In 2006, Irving unilaterally imposed a “Policy on Alcohol and Other Drug Use” (the “Policy”) under Irving’s management rights conveyed under their collective agreement with Communications, Energy and Paperworkers Union of Canada, Local 30 (the “Union”). The Policy imposed a universal random alcohol testing, whereby ten percent (10%) of employees whose positions were considered safety sensitive, were randomly selected for unannounced breathalyzer testing over the course of a year. A test which showed a blood alcohol concertation greater than 0.04% was considered a positive test and resulted in significant disciplinary action such as dismissal. A failure to undergo testing was grounds for immediate dismissal. The unilateral imposition of the Policy was not subject to negotiations with the Union.

The Union filed a grievance challenging the random alcohol testing aspect of the policy only. The Arbitration Board (“arbitrator”) concluded that Irving, under the collective agreement, exceeded the scope of its management rights by imposing random alcohol testing without any evidence to suggest that there was a workplace problem with alcohol use. Given that eight (8) incidents happened over the course of fifteen (15) years and the Policy’s invasion of the employees’ right to privacy, the arbitrator found that the proportionality of the random testing policy was unjustified.

On judicial review the Queen’s Bench set aside the arbitrator’s decision finding that it was unreasonable given the dangerousness of the workplace. The New Brunswick Court of Appeal (“NBCA”) dismissed the appeal finding that there is no balancing of interest in a dangerous workplace, unionized or not. As such, an employer can unilaterally impose random alcohol testing without reasonable cause in a dangerous workplace. Further the NBCA found that the degree of dangerousness of the workplace contemplated by the arbitrator was unreasonable.   

Issues

Did the NBCA err in upholding the Queen’s Bench decision to quash the arbitrator’s decision to allowing the grievance of the Union?

The Supreme Court of Canada’s Decision

The Court found that the NBCA erred in their decision to uphold the Queen’s Bench decision. The NBCA erred in disregarding that decisions of labour arbitrators are to be reviewed for reasonableness and deference is given to the arbitrator’s legal and actual findings with respect to interpretations of collective agreements. As such, the Court reviewed several decisions of labour arbitrators with respect mandatory drug and/or alcohol testing within the workplace and found that a majority rejected that mandatory testing. The rejection was principally as a result of mandatory testing being a significant invasion of the privacy rights of employees. Further, the Court did not find one decision which found that by just the virtue of the dangerous nature of the workplace, “[i]t has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences.” (para 31).

The Court found that the arbitrator’s decision was a reasonable one in consideration of the collective agreement. The Court noted that:

a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally. The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse. (para 45).

The Court further noted that an employer must show actual substantial evidence of “just cause” to implement a mandatory random alcohol and/or drug testing, even where a workplace is inherently dangerous. The Court did not consider the eight (8) alcohol consumption incidents over fifteen (15) years described above was sufficient to amount to just cause for the imposition of the Policy.

However, the Court stated that:

This is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified. (para 52)
Ultimately, the Court restored the arbitrator’s decision, finding Irving’s Policy to be  unjustified given the lack of evidence presented to the arbitrator that there was workplace alcohol abuse that needed to be deterred.

Our Thoughts

From the above discussion it is clear that the enforceability of the imposition of a random drug and/or alcohol testing policy is a balancing exercise between the employee’s rights to privacy and the employer’s and employee’s interest to have a safe and/or less dangerous workplace. It is advisable that if an employer wants to impose a mandatory alcohol and drug testing policy with disciplinary consequence the employer must have actual substantial evidence to show that safety concerns outweigh the employees’ rights to privacy. Further, it is advisable that an employer who is subject to a collective agreement to take a more moderate approach and engage in negations with the union to implement an alcohol and/or drug testing policy rather than imposing such a policy unilaterally.

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.