In a new Alberta grievance arbitration decision, Fort Mckay Logistics LP, Fort Mcmurray Division v General Teamsters, local Union No. 362, 2022 CanLII 78227, an employer’s termination of employment of an employee due to a failed drug test was overturned, since it was determined that the incident used by the employer to justify the drug test was not significant enough to outweigh the employee’s privacy interests. The employer, Fort McKay Logistics (FML), hired the worker in August 2019, who had signed a “zero tolerance” policy.
In 2021, the employee opened the door to her work truck on the work site, when a fire extinguisher rolled out and was damaged, and the truck needed to be cleaned due to extinguisher leakage. The damage to the fire extinguisher was considered to be a small risk of material property damage and created no risk of injury to workers.
However, the employer considered this to be an incident, and required the employee to undergo a post-incident drug test, despite there being no evidence that the employee appeared impaired at the time. Subsequently, the employee failed the drug test for cannabis. The worker stated to the lab employee that she used cannabis previously, but that she had not used it for three months. When the employee was told that she had a right to request a reanalysis, she declined.
As a result, the employer terminated the employee, while the union grieved the termination of employment. Since the employer’s drug testing policy was modelled after the Construction Owners Association of Alberta’s, Canadian Model for Providing a Safe Workplace, the grievance challenged the application of the policy for this particular case.
Arbitrator Phyllis Smith found that the threshold for requiring drug testing was not met in this case, since the incident was one of minimum risk and low impact.
“[…] a finding of human error is not a sufficient basis to conduct testing. Most accidents happen because humans do not perform perfectly and there was an obvious reason for this accident which did not suggest and require the ruling out of impairment. The fire extinguisher fell out of the truck when it was being unloaded. Simple carelessness in loading the truck by someone who had never received training in loading cargo resulting in a trivial incident does not justify testing. Otherwise, every incident would result in a requirement for testing,” stated the arbitration decision.
Therefore, in conclusion, the grievance was successful as Arbitrator Smith determined that the testing was an unjustified violation of the employee’s privacy. Preventing employers from relying on improperly obtained test results will serve as a deterrent to employers seeking testing where it is apparent that the threshold has not been met. Furthermore, the arbitrator determined that FML breached the worker’s privacy rights in requiring the test, and ordered the parties to determine a remedy. As a result, the grievance was successful and the termination of employment was found to have been without just cause.