Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends e union filed a policy grievance chal- lenging the random testing policy. An Alberta arbitration board allowed the union's policy grievance and struck down Suncor's random drug and alcohol testing policy in a 2014 decision. is decision was the first case in Alberta to consider the issue of random drug and alcohol testing since the Supreme Court of Canada issued its land- mark decision in Communications, Energy and Paperworkers, Local 30 v. Irving Pulp & Paper Ltd. In Irving, the Supreme Court held that a dangerous workplace does not automatically justify random testing. Rath- er, courts and arbitral tribunals must balance competing interests and determine whether the testing imposed by the employer is pro- portionate to the concern it seeks to address. e majority of the arbitration board found Suncor's policy to be unreasonable despite considerable evidence of drug prob- lems in the workplace. It held that Suncor had failed to show an existing problem at the worksite and in the bargaining unit that was sufficiently serious to justify the intrusive nature of the random testing, and found that the harm to employee privacy rights due to the random testing policy outweighed the safety benefit to be gained by the employer. e dissent found the policy to be a reason- able exercise of management rights under the collective agreement, and outlined a number of deficiencies in the majority's reasoning, including its refusal to consider evidence re- lated to employees outside of the bargaining unit represented by the union, and the misap- plication of the test for the implementation of random testing as set out in Irving. Judicial review of arbitration decision Suncor brought an application for judicial review of the arbitration decision to the Al- berta Court of Queen's Bench. at court granted Suncor's application for judicial review and quashed the arbitration board's award on the basis that it was unreasonable. e court found that the majority of the arbitration board erred in its application of the Irving test by imposing more rigorous requirements than those articulated by the Supreme Court. e majority stated that for the random testing policy to be justified, Suncor was required to adduce evidence of a "significant" or "serious" problem with drugs and alcohol in the workplace. However, the court noted that the test set out in Irving is in- herently flexible, and only requires evidence of a demonstrated or general problem with drugs and alcohol in a dangerous workplace, rather than a significant or serious problem. e court further found that the majority of the arbitration board erred in finding that Suncor needed to demonstrate a causal con- nection between the drug and alcohol prob- lem and the history of accident, injury and near-miss at the workplace. e court held that Irving does not impose such a threshold requirement, and noted that the majority decision in Irving makes no reference to any obligation to show such a causal connection. Rather, the employer must demonstrate that the particular random testing policy in question appropriately balances competing interests and is proportional to the harm to employee privacy. e court held that the majority of the arbitration board further misapprehended the Irving test by stating that it could only consider evidence of a drug and alcohol problem within the bargaining unit. e Irving test requires evidence of a general "workplace" problem with drugs and alco- hol, and the Supreme Court had used the term "workplace" rather than "bargaining unit" throughout the Irving decision. e court held that workplace safety is an ag- gregate concept, particularly in dangerous environments. us, a broader focus on the workplace, as opposed to a narrow focus on the bargaining unit, is consistent with an employer's obligation to ensure the safety of its entire workplace (unless there is evi- dence to suggest that drug and alcohol use within a bargaining unit differs in a mean- ingful way from that in the broader work- force). While the arbitration decision was only binding upon members of the bargain- ing unit, it did not necessarily follow that the arbitration board could only consider evidence tied directly to that bargaining unit. As such, the arbitration board should have considered evidence relating to the entire workplace, including non-unionized and contract workers. Lastly, the court found that the majority of the arbitration board failed to properly con- sider all the relevant evidence. It held that the board's decision "effectively ignored" the evidence about the high number of security incidents at the relevant worksites. Further, by focusing exclusively on the bargaining unit, the majority "ignored evidence per- taining to some two-thirds of the individuals working in the Oil Sands Operations." e court quashed the arbitration board's award. While noting that in some judicial re- view applications the court can substitute its own decision for the quashed arbitral deci- sion, the court noted that this is not an ap- propriate case to do so and ordered the mat- ter to be remitted before a fresh panel. Shortly after the release of the decision, the union announced its intention to appeal. Implications for employers ough the decision is being appealed, it is an optimistic one for employers who wish to implement random drug and alcohol testing to address legitimate safety concerns arising from drug and alcohol problems in inher- ently dangerous workplaces. e judicial review decision indicates that random testing is still a viable option for employers in Alberta in appropriate cir- cumstances. e Alberta Court of Queen's Bench found that the majority of the arbitra- tion board's approach to Irving and its incor- rect elevation of the threshold Irving test forecloses virtually any possibility of random testing, regardless of the circumstances. is runs contrary to the Supreme Court's state- ment in Irving that "this is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legit- imate safety concerns and privacy interests, it may well be justified." As a result of the Irving decision and its in- terpretation by in Suncor, an employer that wishes to justify random and alcohol test- ing must be able to demonstrate that it has a dangerous or hazardous workplace, and that there is a general problem with drug or alco- hol use in that workplace. For more information see: • Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.). • Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, 2014 CarswellAlta 457 (Alta. Arb.). • Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 CarswellNB 275 (S.C.C.). 6 | July 20, 2016 Asessment of danger should include entire workplace « from RANDOM on page 1 ABOUT THE AUTHOR TIM MITCHELL Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright.com.

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