The Court of Appeal of Alberta reiterated that random drug and alcohol testing may be justifiable in circumstances where there are specific safety risks, such as a general problem of substance abuse within a workplace.
Facts: Employer implemented random drug and alcohol testing
In 2012, Suncor introduced random drug and alcohol testing. The random testing would apply to employees in safety-sensitive positions, as well as others on site, including the CEO.
Before implementing its random testing policy, Suncor had taken extensive measures to address drug and alcohol concerns at its worksites. These included:
- employee education and training;
- “post incident” and “return to work” testing;
- an employee assistance program;
- a treatment program for employees with substance dependencies;
- a drug interdiction procedure;
- sniffer dogs; and
- an alcohol-free camp policy.
Unifor grieved alleged infringement of its members’ privacy rights
The majority of an arbitration panel ruled in favour of Unifor. Suncor applied for judicial review of the arbitration decision. The reviewing court held that the arbitration decision was unreasonable and sent the matter back for reconsideration by a new arbitration panel. Unifor then appealed the judicial review decision to the Court of Appeal of Alberta.
Random Drug and Alcohol Testing: Special safety risks must be established
The parties disputed the extent to which drugs and alcohol were a problem at the workplace. The arbitration decision held that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing.
However, the Court of Appeal of Alberta (“the Court”) determined that by focusing on the bargaining unit, rather than the workplace, the majority of the arbitration panel had unreasonably narrowed the inquiry into whether a drug and alcohol problem existed.
Relying on the leading Supreme Court of Canada decision of Irving Pulp & Paper Ltd. v CEP, Local 30, the Court stated:
Irving calls for a more holistic inquiry into drug and alcohol problems within the workplace generally, instead of demanding evidence unique to the workers who will be directly affected by the arbitration decision.
While in some instances there may be good reason to distinguish between the evidence of substance abuse by unionized and non-unionized employees, in this case, the different types of employees worked side by side in integrated workforces at integrated jobsites.
The Court dismissed Unifor’s appeal and sent the matter back for a new arbitration before a fresh panel.
Check the Box
Whether random drug and alcohol testing is justified in a safety-sensitive workplace is an issue that will be assessed on a case by case basis.
- A dangerous worksite, in and of itself, is not sufficient to justify random drug or alcohol testing in a workplace given the privacy concerns inherent in such testing.
- To justify such testing, an employer must be able to establish evidence of a general problem with alcohol and drugs in the workplace, or some other specific safety risk.
- When assessing whether a general problem of substance abuse exists within a workplace, employers are not necessarily required to provide bargaining unit-specific evidence of the problem.
- Employers should stay on the alert for further developments, as Unifor has indicated that it intends to seek leave to appeal to the Supreme Court of Canada.
Forum: Court of Appeal of Alberta
Date: September 28, 2017
Citation: Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313
Contact Alexandra Jamieson at 416-408-5560 or your regular lawyer at the firm.