Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2015 CSR | July 2016 | News was a concern. The company had several safety measures in place to ensure awareness and preparedness for safety hazards, such as employee and supervisor training, an employee assistance program, a treatment program for employees with addictions, drugs and alcohol detection measures, and a rapid site access program for contractors' em- ployees. Suncor introduced pre-em- ployment drug and alcohol test- ing for all new employees in 1999 to help ensure safety and pro- ductivity wouldn't be hindered by intoxicated workers. Over the next few years, the company introduced further measures to guard against workplace impair- ment, including alcohol and drug testing of employees via urinaly- sis following an incident at the workplace or where there were reasonable grounds to suspect impairment, along with those completing rehabilitation and returning to work after drug- or alcohol-related issues. In May 2012, Suncor informed the union it was introducing ran- dom drug and alcohol testing for employees working in safety sen- sitive positions, which described about 82 per cent of unionized employees. The new policy also gave supervisors discretion to al- low employees to return to work if they tested positive with a 0.02 to 0.039 per cent blood alcohol concentration. The union grieved the new policy, and an arbitration board pointed out that, though Suncor claimed the danger inherent 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 em- ployees were fit to work. Howev- er, "in a random testing regime, a positive test will be the only result on which significant disci- pline — or even dismissal — may rest," said the board. The board looked to the Su- preme Court of Canada's deter- mination in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. that random testing is only warranted where the employer establishes there is a "general problem" with drug or alcohol use in the workplace. Suncor presented reports show- ing issues with positive tests, evidence of drug and alcohol use by workers and the three deaths onsite, and the company also argued any instances were unac- ceptable in such a safety sensitive environment. However, the board found the evidence 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, while the workforce increased. Also, Sun- cor didn't present evidence that showed the incidents for which the testing was done had been proven to be the result of drug or alcohol use. The board also found that most of the incidents took place in the work camps, which had mostly contractor employees on site. As it turned out, only slightly more than one-half of one per cent of security incidents specifically referred to a unionized Suncor employee. Additionally, 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 majority of the arbitra- tion 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 correla- tion, and the fact urinalysis does not demonstrate current impair- ment, the board found Suncor's random testing policy was an un- reasonable exercise of Suncor's management rights. Not all evidence of alcohol and drug problems considered Suncor appealed the decision to the Alberta Court of Queen's Bench, which found the arbi- tration was too strict in using the Supreme Court of Canada's Irving decision to place limita- tions on establishing a workplace problem. While the Supreme Court allowed that random test- ing "might be justifiable if the employer could adduce evidence of a general problem with alco- hol and drugs in the workplace," the board said there needed to be evidence of a "significant" or "se- rious" problem. The court found this was "an unwarranted eleva- tion" of this requirement. The court also found the board incorrectly determined that a causal connection between alco- hol and drug use and the accident evidence must be established, when no such threshold was con- templated by the Supreme Court in Irving. In the court's view, the arbitra- tion board also made an error when it determined it could only consider evidence demonstrat- ing an alcohol and drug problem within the bargaining unit, not by non-unionized and contrac- tor employees. Instead, the court found the workplace encom- passed all workers — as did the Supreme Court in Irving — and they were integrated. Given the policy only applied to Suncor's two specific oil sands opera- tions, and only workers in safety- sensitive positions, the inclusion of the whole workplace wasn't overly broad, said the court. "The focus on the workplace in general rather than more nar- rowly on members of the bar- gaining unit is also consistent with the obligations that employ- ers have to ensure the safety of their entire worksite," said the court. "The court is further com- forted by the general workplace approach because it allows the dangerous environment to be considered in the context of the safety of everyone in that work- place." The court also found the arbi- tration board was too narrow in considering the evidence of inci- dents by Suncor workers. Most of the alcohol and drug-related incidents involved contractor workers or non-union employ- ees, so the court didn't use them as a basis for its decision. How- ever, the test for determining a problem should include the en- tire workplace for safety reasons. This raised the number of inci- dents from 12 by Suncor union- ized employees to 2,276 at the Suncor worksites between Sep- tember 2003 and August 2013. "By focussing only on the bar- gaining unit, the majority (of the arbitration board) expressly ex- cluded consideration of relevant evidence," said the court. "(It) ignored evidence pertaining to some two-thirds of the individu- als working in the oil sands oper- ations. Neglecting this evidence gives rise to a reasoned belief on the part of this court that the (board) misunderstood the evi- dence in a manner that affected their decision." The court quashed the arbi- tration board's decision against Suncor's alcohol and drug testing policy and remitted the case back for arbitration by a fresh panel. For more information see: • Suncor Energy Inc. v. Unifor, Lo- cal 707A, 2016 CarswellAlta 921 (Alta. Q.B.). • Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Pa- per Ltd., 2013 CarswellNB 275 (S.C.C.). Suncor < pg. 1 Employer obligated to ensure safety of all workers Credit: Shutterstock/memorisz

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