CSR | April 2018 | News
Policy was adopted to manage risk, not address actual problem
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The arbitrator also found that
Teck's mines could be consid-
ered dangerous and safety sensi-
tive, given the nature of the work
and the equipment used at the
sites. However, this alone didn't
justify random testing. The ar-
bitrator pointed to the Supreme
Court of Canada's 2011 decision
in Irving Pulp and Paper Ltd.,
where the top court stated that
unilaterally implementation of
random testing shouldn't be al-
lowed without proof of "a dem-
onstrated workplace problem."
A look at the evidence didn't
show such a problem at Teck's
mines and was not the reason
the company implemented the
new policy, the arbitrator said.
"The genesis of the idea to im-
plement random drug and alco-
hol testing in Teck Coal's …coal
mines was not any specific prob-
lem with substance abuse in any
of those workplaces. Instead, it
was an element of risk that Teck
Coal foresaw could impinge on
safety in its mine operations and
accordingly it sought to man-
age that risk so as to, as much as
possible, eliminate it," said the
arbitrator. "After consulting with
substance abuse experts in rela-
tion to drugs and alcohol, Teck
Coal decided to adopt random
testing as the best way of deter-
ring employees from engaging in
this risky behaviour."
While recognizing that Teck's
reasons for random testing to
maintain a safe workplace was
reasonable, the arbitrator found
there was a difference between
a safety risk — "a hypothetical
state of affairs" — and a prob-
lem — an actual state of affairs
supported by evidence that is
difficult to control. Given the
invasiveness of testing, a hypo-
thetical state of affairs didn't cut
it as justification, said the arbi-
trator.
In addition, the arbitrator
pointed to Teck's strong safety
record and efforts which made
its operations already safe plac-
es to work. Though its testing
policy was part of its safety plan,
its other efforts made conflicts
with employee privacy rights
through random testing unnec-
essary. While Teck's approach
was "carefully designed" to deter
employees from coming to work
with drugs or alcohol in their
systems, there was no evidence
random testing would have a
significant effect on the likeli-
hood of it happening, said the
arbitrator.
Teck's data indicated there
were some positive tests dis-
covered from post-incident and
reasonable cause testing, but
the numbers — about three per
cent between 2008 and 2013 —
coupled with its random testing
numbers following implementa-
tion — 1.13 per cent positives in
2013, 0.41 per cent in 2014, and
0.88 per cent in 2015 — weren't
enough to show there was a "de-
monstrable workplace problem."
The court also noted that uri-
nalysis tests weren't reliable for
drugs such as marijuana, which
show past use but not current
impairment, and the alcohol
limit didn't reflect the differ-
ences in how much can impair
different people.
"The random testing statistics
do not prove that the employer's
employees are abusing alcohol
or various illegal drugs," the arbi-
trator said. "They can only prove
that employees are using them."
The arbitrator determined
that Teck didn't have evidence
to prove there was a significant
problem with drug and alcohol
abuse at its mines and therefore
couldn't justify violating em-
ployee privacy rights with ran-
dom testing of its employees.
Teck was ordered to set aside its
random alcohol and drug testing
policy.
For more information see:
• Teck Coal Ltd. and USW,
Locals 7884, Re, 2018
CarswellBC 119 (B.C. Arb.).
B.C. arbitrator < pg. 5
