Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2019 10 NEWS result in disciplinary action, up to and including termination with cause, he said. "It's considered on a case-by- case basis," said Minken. "It de- pends on what the side job is — how demanding, and the purpose of it." "Certain jobs… are clearly con- fl ict of interest or unacceptable. Generally speaking, the more demanding the job, the higher the pay, the more the employer's in (its) right to say, 'You're only working with us.'" If an employee works part- time for the primary employer, moonlighting concerns are often reduced, he said. For employers, understanding why employees are taking on a second position is important, said Webster. "Understanding the motive for the second job is the big, big key in terms of whether holding two jobs will be a sustainable, benefi cial ex- perience," he said. "Or maybe it might be an ex- perience that's a little tough for individuals." "People might really want to take a step back and think about the reason they're undertaking a second job," according to Web- ster. "If they're doing it simply to increase money, it's usually a short-term scenario and the re- sults seem to suggest that they're really able to do it." "But when that second job is a calling, they might devote too much energy, too much attention, too much eff ort to the second job that could be reserved for the pri- mary job." " is failure to consider the diff erence between the appro- priateness of a drug and an alco- hol test indicates the employer did not properly consider and balance the grievor's privacy interests." Employer error The employer erred by basing the drug testing request solely on the smell of alcohol, according to Drew Demerse, partner at Roper Greyell in Vancouver. " e arbitrator's conclusion in that case turned entirely on a very narrow set of facts in an agreed statement of facts; the parties agreed that the only reason that the employer requested a test was because there was a smell of alco- hol on the employee," he said. Detecting exactly what type of impairment might be pres- ent could be difficult for em- ployers because sometimes it's not possible to tell whether it's drugs or alcohol, said Lyndsay Wasser, partner at McMillan in Toronto. "If it's things like erratic behav- iour or glazed eyes, stumbling, you may have no evidence as to whether it's the impairment caused by drugs or alcohol and, in those cases, where the appropri- ate policies are in place, and it's a safety-sensitive workplace and all those other criteria are met, em- ployers often can do both the drug and alcohol testing," she said. "Drug and alcohol testing is a sensitive thing, so the more evidence the employer will ul- timately be able to put forward that it could have been either, the better." Establishing a thorough regime of observation and note-taking is the best way to address a poten- tially impaired employee in the workplace, said Demerse. " e message I give to employ- ers and to their managers and supervisors is that they're not go- ing to be experts in determining whether someone is impaired by drugs or whether someone's im- paired by alcohol, so the best thing they can do is to be observant, to speak with their employees, to ask some questions and see if the employee's presentation gives rise to a suspicion consistent with im- pairment," he said. "Reasonable-cause testing is testing where an employer be- lieves that a person's appearance, behaviour, speech, motor skills or body odour are consistent with the use of drugs or alcohol." Vancouver Drydock should have established reasonable cause when deciding on the ap- propriateness of a drug or alco- hol testing policy, according to James Jennings, an associate at Filion Wakely orup Angeletti in Toronto. "For example, the rule has to have been implemented in order to address some sort of legitimate operational or safety-related need of the employer, as opposed to just being a completely arbitrary rule; it has to have a legitimate business purpose to it," he said. " e second aspect is assum- ing that the workplace rule is in and of itself reasonable, the em- ployer's actual application of that rule under the circumstance has to be reasonable." Invasion of privacy When considering a test, the employee's right to confi dential- ity plays a big role, according to the arbitrator. " ere is a signifi cant diff er- ence in the level of intrusiveness between the two tests and it is apparent that involuntary bio- logical testing is far more inva- sive of personal autonomy than a breathalyzer test," said McPhil- lips in his decision. Courts and arbitrators will al- ways consider the level of personal intrusion that is warranted, said Sharaf Sultan, principal at Sultan Lawyers in Toronto. "It's a bit of a grey area in terms of what is a defi nition per se but, essentially, the courts don't want the employers to be requesting in- formation that could be infringing on their privacy unless it's abso- lutely necessary," he said. "Generally, the common law is that employers are only allowed to infringe on your privacy when it's reasonable to do so. And the decision-maker, whoever it is — arbitrator, judge or otherwise — would be looking for any other way in which it can be done be- cause, essentially, they don't like random testing; they don't see the effi cacy of it, they're not con- vinced by it." By asking plenty of questions during an investigation, an em- ployer might establish a drug test is warranted, said Wasser. "It's helpful for the employer to try to expand the investigation by asking the employee questions around 'Do you have any drugs or alcohol in your system? Have you have you used any drugs or consumed any alcohol today?' Because if the employee says, 'Oh well, on the weekend I used some cannabis,' they give you that extra bit of reason to test for drugs." This case could have some precedent-setting value for em- ployers to understand if it's clear that impairment is caused by al- cohol, she said. "And we can turn that around because one of the reasonable- cause circumstances might be fi nding something at the worksta- tion that's not permitted. If there's alcohol found at the workstation, you might check for alcohol but not drugs. Or say you fi nd evi- dence of cannabis at the worksta- tion, well, there might not be the reason to test for alcohol; so, it can go the other way." But in safety-sensitive work- places, such as the one in Van- couver Drydock, the employer doesn't generally need to suspect an employee is under the infl u- ence after a near-miss situation, according to Demerse. "For post-incident testing to be reasonable, the company has to fi rst undertake a prompt investi- gation to determine if there's an obvious cause of the accident or near-miss. It has to then take the circumstances of each case into consideration for making its de- cision to test," he said. "But if the individual has been involved in an accident or a near-miss — a signifi cant one — and their state of mind is a reasonable line of inquiry, then it would, in most circumstances, be appropriate to request a test for both drugs and alcohol," said Demerse. COMPENSATION info@resourcecorporation.com | (416) 498-7800 ext. 101 | www.resourcecorporation.com Compensation Surveys Compensation Surveys Compensation Surveys Incentive Programs Incentive Programs Incentive Programs Job Descriptions Job Descriptions Job Descriptions Job Evaluation Job Evaluation Job Evaluation Pay Equity Pay Equity Pay Equity Performance Appraisal Performance Appraisal Performance Appraisal Salary Administration Salary Administration Salary Administration Sales Compensation Sales Compensation Sales Compensation CONSULTING. Employee's right to confi dentiality plays big role DRUG TESTING < pg. 1 "Involuntary biological testing is far more invasive of personal autonomy than a breathalyzer test." The headquarters of Marine Workers and Boilermakers Industrial Union in Burnaby, B.C. Understanding motive is key MOONLIGHTING < pg. 8 Credit: Google Street View

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