Canadian Employment Law Today

April 16, 2014 6 published by Canadian hr reporter, a thomson reuters business 2014 Suncor described three fatalities since 2009 in which it was known drugs or al- cohol had played a role: •a contractor employee who had con- sumed alcohol and cocaine stole a van, climbed up a structure and jumped off •a contractor employee was killed by the rim of a truck tire after the tire de- flated while being repaired •a contract employee in camp choked on his own vomit after consuming a large amount of alcohol. Suncor was also concerned about the number of positive tests under the previ- ous policy implemented in 2003 — 224 (216 unionized employees) over nine years tested positive for various sub- stances, including marijuana, cocaine, heroin and opiates. Suncor security had also found devices used to defeat drug tests and indications of drug trafficking at its work camps. Suncor noted there had been a decrease in positive tests since the changes made to the policy in 2009, but the number was still unacceptable to the company and its safety concerns. The union characterized most of Sun- cor's evidence justifying random drug and alcohol testing as "unparticularized evidence, anecdotal evidence, broad- based inferential reasoning and unsup- ported presumptions." The arbitration board noted employers have the right to review and alter a pol- icy, but unless they have the agreement of the union, the policy must be consis- tent with the collective agreement, rea- sonable, clear and unequivocal, brought to the attention of employees before implementation, and consistently en- forced. The board also noted drug testing by urinalysis was not as effective as breathalyzer testing in determining cur- rent impairment, as the Supreme Court of Canada found in its 2013 decision in Communications, Energy and Paper- workers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. This created a problem because the supposed advantage of random testing in a safety sensitive situation was to identify and remove an impaired indi- vidual from the workplace. Using urinalysis raised questions over whether it was worth it for the personal harm caused to employees, particularly since it was more intrusive than other methods such as breath testing, said the board. The board also pointed out that, though Suncor claimed the danger inher- ent with the slightest inattention or mis- take at its oil sands operations, its policy was not zero tolerance and supervisors had leeway to make a judgment call on whether an employee who tested posi- tive with a small amount was fit to work. However, "in a random testing regime, a positive test will be the only result on which significant discipline — or even dismissal — may rest," said the board. The board looked to the Supreme Court of Canada's determination in Ir- ving that random testing is only war- ranted where the employer establishes there is a "general problem" with drug or alcohol use in the workplace. Suncor presented reports showing issues with positive tests, evidence of drug and alco- hol use by workers and the three deaths onsite, and the company also argued any instances were unacceptable in such a safety sensitive environment. However, the board found the evi- dence showed the policy and testing regime already in place — post-incident and return-to-work after rehab testing — showed a decrease in positive tests, from 8.6 per cent in 2009 to 3.5 per cent in 2012. This decrease was also at the same time Suncor's workforce increased sub- stantially, the board pointed out. Also, Suncor didn't present evidence that showed the incidents for which the test- ing was done had been proven to be the result of drug or alcohol use. company's figures didn't differentiate between employees and contractors The board also found that most of the incidents took place in the work camps, which had mostly contractor employees on site, as most unionized employees lived nearby. As it turned out, only slight- ly more than one-half of one per cent of security incidents specifically referred to a unionized Suncor employee. Addition- ally, all three fatalities Suncor mentioned were contractor employees. Without evidence of significant use by unionized Suncor employees, it was unfair to paint them with the same brush by forcing them into random testing and the privacy violation it involved, said the board. "The evidence does not demonstrate a culture at the oil sands operations where the consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either con- doned or encouraged by management's practices or inaction," said the board. The board found Suncor did not prove drug and alcohol use was connected to the accident and near-miss history of its oil sands operations. Without this corre- lation, and the fact urinalysis does not demonstrate current impairment, the board found Suncor's random testing policy was an unreasonable exercise of Suncor's management rights. Suncor indicated it would appeal the decision. For more information see: • Suncor Energy Inc. and Uni- for, Local 707A (Random Alco- hol and Drug Testing Policy), Re, 2014 CarswellAlta 457 (Alta. Arb.). • Communications, Energy and Paper- workers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.). Continued from page 1 Contractor workers responsible for many incidents wEbInaRS interested in learning more about employment law issues directly from the experts? Check out the Carswell professional development Centre's live and on-demand webinars discussing topics such as attendance management, changes to the foreign worker program, accommodating persons with disabilities, and social media in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. urinalysis didn't necessarily show impairment, just past use, which raised questions over whether it was effective for the purpose of finding and removing impaired individuals from a safety sensitive environment.

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