Hibernia’s lesson: drug testing must link to accident

Sep 6, 2018

The reinstatement of a Hibernia employee who was fired in 2015 for failing a drug test has been unanimously upheld by the Newfoundland and Labrador Court of Appeal.

In the case of Hibernia Platform Employers’ Organization v. Communications, Energy and Paperworkers Union of Canada, Local 2121 2018 NLCA 45, a request by the Hibernia Platform Employers’ Organization that the July 24th decision to reinstate the employee be judicially reviewed was also denied in the same ruling, as the court decided the board’s decision to reinstate the employee was “reasonable.”

In a period of five weeks between December 2014 and January 2015, four errors were recorded in the Hibernia Platform’s helicopter manifests, and an investigation into the incident was subsequently ordered. In accordance with the collective agreement, eight Hibernia employees involved with the loading and unloading of the platform’s helicopters were tested for drugs and alcohol, and the loading officer was found to have taken benzodiazepines, a drug that is unauthorized under the company’s collective agreement. Because Hibernia and the Communications, Energy and Paperworkers Local 2121 Union had agreed that drug and alcohol tests were permitted under the collective agreement once a significant incident had occurred, as a result of the manifest errors, the employees were required to submit to the testing.

Subsequent to his positive test for benzodiazepines, the loading officer was fired from his position and Local 2121 immediately grieved the decision, claiming the employee’s termination was unjustified and the drug and alcohol testing was unwarranted. The union demanded that the employee be rehired by the company and that Hibernia limit its drug and alcohol testing within its company in the future.

Ultimately, though it denied the Employer’s Organization’s policy grievance, the arbitration board elected to reinstate the loading officer because “there was not sufficient information to establish a possible link between substance use by the grievor and the cause of the incident.”

In its appeal, Hibernia argued that the arbitration board’s decision was unfair, as there exists within the company’s collective agreement a manager’s right to order drug testing, and the arbitration ruling ultimately interfered with that process. Contrary to this, in Hibernia’s collective agreement it is stated, “it is recognized that a positive post-incident test may not always independently prove that substance use was the ‘root cause’ or a contributing factor in a particular incident,” and that employers are still required to explore any incident fully through investigation when a drug or alcohol test is failed.

In response, as a result of other possible explanations for the manifest errors in addition to the lack of communication between the offshore installation manager and the crew before the drug and alcohol testing was administered, the arbitration board declared that its decision to reinstate the loading officer was reasonable.
As a result, it is now clear that valid employee testing is critical for drug policies to work within companies across Canada; in administering their tests, employers must adhere to strict standards in order for their decisions to be upheld in the court of law.