Canadian Employment Law Today - sample

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER LAW TORONTO Canadian HR Reporter, a Thomson Reuters business 2018 2 | October 10, 2018 Answer: ere are, in effect, two types of workplace drug testing that are widely recognized — random testing and post- incident testing. Random drug testing has strict legal rules around situations where it may apply, and it is not generally accepted in Canadian jurisprudence. Cause testing, or "post-incident" testing, requires some more analysis. In the recent Alberta case of Canadian Energy Workers' Association v. ATCO Elec- tric Ltd, two workers were installing trans- mission towers amidst narrow roads and hilly terrain when one accidentally crashed his truck into the other's moving equip- ment, partly because he failed to get help checking his blind spot. e employees' supervisor ruled that the two should have post-incident drug and alcohol testing. e employer's policy held that post-incident testing should be conducted if the incident involved time lost (no matter how much time), was reportable under the Alberta Occupational Health and Safety Act for se- rious injury, and caused property (includ- ing vehicle) damage greater than $10,000. e policy also permitted discretionary testing for an incident "which local man- agement determines had clear potential to result in one or a combination of the above or could have resulted in lost time." In this case, the employer maintained that the incident had the potential to cause lost time and warranted testing. e em- ployees filed grievances, but those griev- ances were dismissed. Previous arbitra- tors have held that there are key fact-based considerations in determining the need for post-incident testing, including "the threshold level the incident requires to jus- tify testing; the degree of inquiry necessary before the decision to test is made; and the necessary link between the incident and the employee's situation to justify testing." is is meant to rule out the need for test- ing in every trivial incident, but because the incident here happened partly because of carelessness, the testing was held to be valid. e court agreed and ruled "It is clear that the balancing of an employer's interest in safety with employees' privacy rights in their bodily integrity is a nuanced and very fact specific exercise." For more information see: • Canadian Energy Workers' Association v. ATCO Electric Ltd, 2018 CarswellAlta 642 (Alta. Q.B.). Ask an Expert 2 | Balancing an employer's interest in safety with employees' privacy rights is a fact-specific exercise. Answer: In short, yes. Here's why: An employer is responsible for keeping all of its employees safe in the workplace pursuant to local occupational health and safety legislation, and this includes main- taining a workplace that is free from ha- rassment and discrimination. Included amongst these obligations is the employer's duty to investigate any reported or sus- pected incidents of sexual harassment, and report the findings of that investigation to the parties, including any disciplinary ac- tion that will be taken. While some em- ployers have internal investigators, many will retain a third-party investigator due to the sensitive nature of the subject matter. Employers are responsible for making it easy for employees to come forth confiden- tially if they wish to report an incident of harassment. However, that does not mean that all victims of harassment will feel comfortable sharing their story, no matter how many assurances an employer makes that the matter will be taken seriously. us, incidents reported by co-workers or other uninvolved parties (as this situation may well be), or even anonymously, must be taken equally as seriously, and dealt with in the same fashion. If there is a suspicion, it must be investi- gated. e lack of a complaint does not allow the employer to escape its responsibility. Stuart Rudner is the founder of Rud- ner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Can- ada published by Carswell, a omson Reuters business. He can be reached at stuart@rudnerlaw.ca or (416) 864-8500. Shaun Bernstein is an associate with Rudner Law. Post-incident drug testing Question: What type of event would be considered serious enough to warrant post-incident drug testing? How specific does a drug policy have to be in describing it? Harassment without an official complaint Question: If an employer learns that an employee was being sexually harassed by another employee away from work, but the harassed employee doesn't say anything, does the employer still have to take action? WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, developing effective employee handbooks, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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