Canadian Employment Law Today

Worker refused to take test Degg refused to take the test, as he had been advised to do by the union business manag- er. He was then escorted off-site by the fore- man but not driven home. Degg claimed he was told he was being terminated, but the company claimed he was suspended un- til he agreed to a test. e company sent a letter to the union the next day confirming that Degg wouldn't be eligible to work until he was assessed by substance abuse expert and took a test. e union filed a grievance on Degg's be - half, claiming the circumstances didn't war- rant a violation of Degg's privacy rights and the collective agreement. e arbitrator found it was understand- able that Degg thought he was being dis- missed for not complying with the policy, as the original policy in 2008 when he was hired permanently said as much. In 2011, the policy was amended to allow for a sus - pension and give the employee another chance to comply. However, this change didn't adversely impact employees even if they didn't know about it, as Degg appar - ently didn't, said the arbitrator. e arbitrator found that getting infor- mation from the employee by the least in- trusive means was preferable, but simply asking Degg if he had consumed drugs or alcohol wouldn't have changed the process under the policy — a test would still be re - quired. In addition, simple observations by witnesses wouldn't be enough to eliminate the need for a test. Employers need such in- formation to ensure a safe workplace, said the arbitrator. "Post-incident testing is based on the incident itself; in a safety sensitive environ - ment, knowing that physical observation of impairment is unreliable, and that an em- ployee may be impaired yet show no sign of it, the occurrence of a significant accident or near-miss, which appears to be the result of the employee's carelessness or wilful - ness, leads an employer reasonably to want to know whether the employee's act was merely the result of an error in judgment or whether it was the result of being impaired, of being partially disabled from something consumed, whether medical or intoxicant," said the arbitrator. However, while the company's policy for testing was appropriate and should be fol - lowed in the wake of a workplace incident, the arbitrator found the policy didn't need to be followed in this case, due to the fact the accident was minor enough that didn't meet the definition of "incident" under the alcohol and drug policy. In addition, juris - prudence has indicated that post-incident testing must be justified by "some substance, some materiality, to the harm caused" — or a near-miss with significant potential harm. e arbitrator found that the damage to the parked vehicle was minimal, and if the truck Degg was driving didn't have a trailer hitch, there might not have been any dam - age at all. Degg explained how the accident happened, and this provided management with sufficient opportunity to exclude the possible influence of drugs or alcohol on Degg's actions, said the arbitrator. e pol - icy itself stipulated testing should only be implemented if there was no credible expla- nation for the employee's behaviour in the incident. In this case, there was a credible explanation and no reason to suspect drugs or alcohol, particularly since Degg had no history of drug or alcohol abuse or any dis - ciplinary record during his relatively long tenure. "is was not a significant accident; it was minor," said the arbitrator. "It did not reach the threshold required to put an individual employee through the intrusive experience of drug and alcohol testing." For more information see: • Jacobs Industrial and IBEW, Local 353 (Degg), Re, 2016 CarswellOnt 119 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2016 CREDIT: EMILY SKEELS/SHUTTERSTOCK March 2, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information.

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