Earlier in September, an Alberta human rights tribunal reversed the dismissal of a discrimination complaint against Fort McKay Group of Companies, ruling that credibility concerns mean the case must proceed to a full hearing after a female employee was fired for leaving a workplace drug testing facility.
The Tribunal held that the complaint of a payroll administrator, employed with the company from March 2018 until July 2021, must go to a hearing, setting aside the Commission director’s earlier dismissal of the case. The employee claimed she was discriminated against on the grounds of gender, mental disability, and physical disability after being dismissed for leaving a third-party drug testing facility without permission. She also said she was unable to provide the required 125 millilitres of urine and left to attend what she believed was a mandatory training session.
However, Fort McKay Group disputed the employee’s version of events, stating the training session was not mandatory and could be watched later, while the testing facility’s “Shy Bladder Protocol” required her to remain up to three hours to complete the test. The employee, a recovering alcoholic, argued her gender affected her ability to provide the required urine sample and cited an expert opinion suggesting women may urinate more frequently in smaller amounts. The company rejected this claim, insisting the employee left voluntarily to attend training. In turn, the employee said she had not been told the test might take three hours and had retrieved her phone from her car to inform her supervisor of the scheduling conflict.
The commission director had dismissed the complaint, reasoning that the Shy Bladder Protocol gave the employee adequate opportunity to provide a sample despite any gender-related difficulties. The tribunal, however, found this conclusion unsupported by medical evidence and noted unresolved credibility issues, particularly over whether the training session was mandatory. It held that if the employee was required to attend training during the testing period, her termination for leaving the facility could be called into question.
The tribunal also noted that when credibility is in dispute, complaints should proceed to a full hearing rather than be dismissed early. It also added that unless allegations are clearly speculative or impossible to prove, they must be treated as true at the screening stage under the “no reasonable prospect of success” test.
The employee pointed out that she had previously completed the same test in 2018, but said the 2021 sample requirement was significantly larger. Because the site was safety-sensitive, retesting was needed after her site access lapsed during the pandemic. Fort McKay Group accepted that gender is a protected ground under Alberta’s Human Rights Act, but denied she had a physical disability, citing no medical proof of alcoholism. While acknowledging her termination had an adverse impact, the company maintained her protected characteristics played no role in the decision.
The tribunal found the complaint had a reasonable chance of success and raised genuine issues requiring a full hearing. Citing Court of Appeal precedent, it noted that cases with significant credibility disputes should not be dismissed at the screening stage. The matter will now proceed to a tribunal hearing, where evidence will be tested and credibility assessed, including whether the training was mandatory and if gender factors influenced the drug testing process.
