Industry Awaits Suncor Appeal Results

Random drug testing has been a controversial issue in Canada as it juxtaposes workplace safety with employee privacy rights. The Alberta Court of Appeal is currently deliberating on  the use of random drug and alcohol testing between Suncor Energy Inc. and Unifor Local 707A and could have a decision by December 2016. This case could affect many industries  with workplaces with safety sensitive positions which have drug and alcohol testing in place, and those which are looking at implementing new policies.

The Original Issue

The original court case of Suncor Energy Inc. and Unifor, Local 707A (Random Drug and Testing Policy) in 2012 ruled that Suncor’s random testing wasn’t justified as the policy infringed on employee privacy rights and could not be validated through workplace safety reasoning.1 The workplace random drug and alcohol policy was struck down as Suncor could not demonstrate that there was a drug and alcohol problem within the company which was affecting workplace safety. This decision was similar to many other case in Canada like the Irving Pulp & Paper Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30 in June of 2013 which also concerned employer’s right to have random drug and alcohol testing policies.

The boundaries between privacy rights and the right to ensure a safe work environment is often blurred. Currently there is no quantifiable threshold which has been determined as far as the number of “safety accidents occurred” due to drugs/alcohol, and/or “monetary impact to the company” due to drugs and alcohol misuse. Without regulations which have standard industry positions as to the appropriateness of random drug testing within the safety sensitive positions there will be continue to be court hearings fighting over this issue. Currently it falls on the employer to prove that there is a problem with drugs and alcohol within their company, and each case is simply taken on it’s own, being decided by that particular judge. This means there could easily be discrepancies between what judges find to be a discernable drug and alcohol problem within a company, which only leads to more time and money spent in court for everyone.

The Majority also found Suncor needed to demonstrate a causal connection between the drug and alcohol problem and the accident, injury and near-miss history at the workplace.” (from the first decision in 2012)2

Ongoing Debate

Similar court cases in Canada like which have arguments on the basis that a safety sensitive workplace doesn’t automatically justify random drug testing at the expense of employee rights.3 These boundaries have been difficult to determine as deciding at what severity or number of workplace incident or deaths related to drug and alcohol use have to take place before the implementation of these programs can be justified .

Suncor Energy appealed the 2012 case and the Alberta court will be deliberating on this case which could impact the original court decision.

“Prior to the appeal, five employer associations, who claim they will be significantly impacted by the outcome of the long-ranging dispute, were granted intervener status by the Alberta Court of Appeal.The five associations who were granted status are the Mining Association of Canada, Construction Labour Relations — an Alberta Association, the Electrical Contractors Association of Alberta, Enform Canada and COAA.”4

The outcome of this appeal will directly impact employers in safety sensitive workplace industries making this a landmark appeal.

 

 

 

[1]http://www.nortonrosefulbright.com/knowledge/publications/140001/suncor-wins-this-round-in-the-battle-over-random-drug-testing-but-the-battle-is-not-over
[2]http://www.nortonrosefulbright.com/knowledge/publications/140001/suncor-wins-this-round-in-the-battle-over-random-drug-testing-but-the-battle-is-not-over
[3]http://www.ohrc.on.ca/en/policy-drug-and-alcohol-testing-2016
[4]http://journalofcommerce.com/Labour/News/2016/12/Industry-awaiting-Alberta-appeal-court-decision-on-Suncor-drug-testing-1020361W/

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