Alberta arbitration has called a halt to yet another Canadian employer of unionized workers having the right to include randomized drug testing as part of its alcohol and drug testing policy.
The groundwork for this decision began with Irving Pulp & Paper Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30 in June of 2013, wherein the Supreme Court of Canada held that there was inadequate evidence of safety concerns, even for those holding a designated ‘safety-sensitive’ position in a dangerous workplace, that would justify forced randomized testing with disciplinary consequences for either a positive test result, or failure to test.
In this latest decision, arbitrator Alexander-Smith heard 16 witnesses which included 5 expert witnesses testifying in regards to Teck Coal Ltd. and IMWA, Local 1656 (Drug and Alcohol Policy), Re, 2015 Carswell Alta 2237 (‘Teck Coal’). Alexander-Smith weighed the evidence given and felt that there was not reasonable evidence of drug and alcohol use being connected to safety issues within the organization nor that the randomized alcohol and drug testing had any impact on decreasing any deemed safety risks.
This decision follows with those principles set out in the Irving case, unfortunately for Teck Coal the decision for the Irving case had not yet been released when they implemented the policy within their organization. At arbitration Teck Coal worked to separate the review decision of Irving from having applicability to their case, unfortunately Alexander-Smith did not agree, stating that she was bound to follow those principles, using a proportionality assessment approach, which had been set out in the decision made by the Supreme Court in the Irving case.
In the Irving case the Supreme Court held that arbitrators employ a reasonableness analysis, as laid out in a decision known as KVP Co. V. Lumber and Sawmill Workers Union, Local 2537 (the “KVP Rules”) wherein it was held that there are six criteria on which the enforceability of a workplace rule depends, with only one – the reasonableness of the policy – being an issue of contention in the Irving case. As applied to the Teck Coal case this meant assessing their policy to confirm whether the imposition of their safety measures are fair when weighed against the accompanying encroachments upon privacy rights.
There is yet another case still awaiting judicial review results, Suncor Energy Inc. and Unifor, Local 707A (Random Drug and Testing Policy), that employers are looking to as a possible case in which the employer’s random alcohol and drug testing policy may be deemed reasonable. We await the Alberta courts’ decision, which is expected in 2016. Whichever decision is made in regards to the Suncor case it is clear with this latest arbitration decision that should Canadian employers, with unionized workers, wish to employ a Drug and Alcohol Policy, that includes randomized drug and alcohol testing, they will need to have unmistakable evidence that the implementation of the Policy (which would encompass an attrition of the safety risks at the workplace) were in scale to the possible detriment (here being the violation of the employees privacy) with the implementation.
