The October 2013 issue of the HR Professional Magazine (hrpromag.com) has a cover article reporting on the recent Supreme Court of Canada (SCOC) ruling against Random Alcohol Testing policies in dangerous workplaces. The article is written by Kyla Stott-Jess and Katie Clayton, and these authors raise some valid concerns about the wide-reaching effect this ruling may have.
The article cites the case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd, in which the Supreme Court considered the validity of random alcohol testing in workplaces.
The SCOC recognized that while random testing may be imposed where it is “a proportionate response” to safety and privacy, six of the nine judges ruling on this case agreed with the original arbitration board that there was insufficient evidence of an alcohol-related problem at this workplace.
Irving operates a paper mill in St. John, New Brunswick. At issue is the fact that in 2006 the company adopted a random testing policy for employees in “safety sensitive positions”. The policy allowed for 10% of the employees to be randomly tested by breathalyser over the course of a year. Positive tests meant harsh discipline from the employer, while failure to participate/refusal of testing would be grounds for dismissal. The policy was challenged by the Union due to breach of privacy concerns and a lack of alcohol-related incidents at the workplace.
At arbitration, the Board agreed with the Union that the Policy infringed on the privacy of the employees and there were only eight documented cases of alcohol in the workplace over 15 years, none of which lead to injury or accident, which meant that the risk was low. The Arbitration Board ruled that testing “involves bodily intrusion and public embarrassment” and, in the Board’s opinion, “the gains likely to result to Irving from the random testing were minimal at best, making the infringement on employee privacy out of proportion to any benefit”.
Irving appealed, and it went all the way to the Supreme Court. Why does the SCOC ruling have major impact? Clayton Jones reports, in the article “How Far Reaching will the Irving Pulp and Paper Decision Be?” which is embedded in the original article, on two other similar cases in Canada currently subject to Arbitration hearings. These cases are brought by Suncor Energy in Alberta and Teck (Coal) in BC.
In the Suncor case, the employer was able to demonstrate that there is a problem with alcohol and accidents in their workplace. The Alberta Court of Appeal ruled, however, that even though three of seven fatalities since 2000 were alcohol-related, and six percent of the tested workers had positive results, there was not sufficient merit to the employer’s case to allow the testing to continue. This grievance hearing began in January 2013 and is ongoing.
The Teck (Coal) case has also not yet been completely resolved. The BC Steelworker’s Union asked an Arbitrator for an injunction in May 2013 to stop newly imposed random testing, which was denied. The Arbitrator ruled that although this dispute caused “irreparable harm” to the Union/Employer relationship, the Employer’s interest in safety was the deciding factor. Teck submitted that in the previous five years, over 50 post-incident tests were conducted with positive results for drug use. The union is arguing that this is “low in the context of the number of post-incident tests overall”. The hearing into the merits of the grievance has yet to be heard.
The SCOC decision has resulted in workplaces needing to demonstrate that there is a greatly increased safety risk in the workplace such as evidence of a drug or alcohol problem before implementing a policy of random testing. Although there is no clear-cut “level” of evidence needed, the Irving and Suncor cases imply that the benchmark is quite high, and may be very difficult to overcome.
