Canadian Employment Law Today

April 16, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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In This Issue PM40065782 Current news and praCtiCal adviCe for employers April 16, 2014 3 4 8 2 asK an eXpert Workplace violence and health and safety • Older workers plans Cases and trends School caretaker suspended for comments, poor work Case in point Making a contract stick you maKe tHe Call Worker fired for moonlighting after calling in sick Random drug, alcohol testing struck down at Suncor Company failed to prove there was a problem with intoxicants at its oil sands operations in northern Alberta | By Jeffrey r. SMith | EnERgy company Suncor is the latest employer to have random drug and al- cohol testing of its employees shut down after an arbitrator followed the Supreme Court of Canada's determination that the cons of such testing in the workplace outweighed the pros without proof of a significant problem. Suncor has oil sands extraction opera- tions in two locations in northern Al- berta: a base plant in the Regional Mu- nicipality of Wood Buffalo, about 30 km north of Fort McMurray, and a smaller operation at McKay River and Firebag, about 120 km north of Fort McMurray. As of July 2013, there were more than 3,300 unionized workers, almost 3,000 non-represented workers and up to 3,400 contractor employees. Much of the activity in Suncor's oil sands operations involved heavy equip- ment and dangerous activities, so safety was a constant concern along with the importance of employees working with clear heads and maximum functional abilities. To that end, the company intro- duced pre-employment drug and alcohol testing for all new employees in 1999. In 2003, Suncor introduced a policy that provided for alcohol and drug test- ing of employees via urinalysis following an incident at the workplace or where there were reasonable grounds to suspect impairment, along with those complet- ing rehabilitation and returning to work after drug- or alcohol-related issues. After the union grieved the policy, several changes were made, including an adoption of a "fit for duty" standard for employees — "being physically and mentally fit to safely perform assigned duties without excessive risk or harm to yourself or others." The company followed this up with a pre-access standard for contractors with access to Suncor sites and, in 2008, the use of sniffer dogs to root out drugs in Suncor-owned accommodation facilities. In July 2009, Suncor implemented an alcohol-free lodge policy. In May 2012, Suncor informed the union it was introducing random drug and alcohol testing for employees work- ing in safety sensitive positions, which described about 82 per cent of union- ized employees in the oil sands opera- tions. The new policy also gave super- visors discretion to allow employees to return to work if they tested positive with a 0.02 to 0.039 per cent blood alco- hol concentration. The union grieved the new policy, arguing it was "unjustifiable, unreason- able, and violates employees' privacy rights, human dignity, and human rights. The policy sanctions unreasonable and unjustifiable searches of employees' per- sons." The union provided accounts by em- ployees who had undergone testing under Suncor's previous policy who de- scribed the testing process as stressful, humiliating and disrespectful. Dangerous workplace couldn't afford any bad judgment: company Suncor countered that its oil sands oper- ations included complex mining, indus- trial and upgrading equipment and its operations were "complex and hazard- ous" with "a number of risks to people, property and the environment on site." Any inattention or mistakes made by employees could lead to "catastrophic consequences" in a workplace featuring high pressures and temperatures as well as the heavy equipment, which could result in an explosion. Any impairment of an employee could have extremely se- rious repercussions, said Suncor. Continued on page 6 Continued on page 7 WcB benefits for seasonal workers discriminatory a SEaSonal WoRkER is entitled to have employment insurance (EI) benefits from another province calculated as part of his workers' compensation benefits, the Northwest Territories Court of Ap- peal has ruled. Philip Mercer was from Newfoundland and Labrador but worked in the North- west Territories as a transport truck driver for six months each year. When his seasonal work was done each year, he returned to his home province. If he couldn't find additional work at home, he collected EI benefits. On Feb. 18, 2001, Mercer broke his hip while on the job in the Northwest Territories and required surgery. He suc- cessfully applied for total temporary disability benefits from the Northwest Territories workers' compensation board (WCB). Under the Northwest Territories Work- ers' Compensation Act, an injured work- er's total disability benefit is calculated on the basis of "gross annual remunera- tion" — an estimate of what the worker would have earned in the year the ac- cident occurred, had it not occurred. However, there were different methods for making this calculation. The WCB's standard for calculating the benefit entitlement of seasonal work- ers was to take their actual remuneration

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