Random workplace drug and alcohol testing is generally prohibited by Canadian employers in Canada. However, there are limited circumstances in which it may be permitted. A recent decision of the Alberta Court of Queen’s Bench, Suncor Energy Inc. v. Unifor Local 707A, provides some further guidance for employers operating in Canada. And provides them with a glimmer of hope.
Suncor Energy Inc. operates oil sands facilities in northern Alberta. At any time, these facilities can involve almost 10,000 workers, some of whom are represented by a union, Unifor 707A. These facilities are dangerous. They use very large and complex equipment and contain many hazards such as high-voltage power lines, chemicals, explosives, and flammable liquids and gases.
For several years, Suncor has been concerned with the safety risk posed by individuals in the workplace using drugs and alcohol. Suncor has adopted various measures to address these concerns. On June 20, 2012, Suncor announced additional measures, one of which was a random testing standard applicable only to its oil sands operations. The standard provided for random drug testing (by urinalysis) and alcohol testing (by breathalyser) for employees in safety-sensitive positions.
On July 19, 2012, Unifor filed a grievance against Suncor’s implementation of the random testing standard. Unifor also obtained an interim injunction delaying the implementation of the program pending the outcome of the grievance arbitration. As we outlined in December 2012, this injunction was upheld by the Alberta Court of Appeal.
At the arbitration, a majority of the panel sided with Unifor. However, a strong dissent by one panel member argued that the majority had misapplied the guidance from the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. Specifically, the dissenting member said that Suncor had “overwhelmingly demonstrated evidence of a serious problem with alcohol and drug use in the workplace.” He wrote that “failure to implement the Random Testing Standard could result in potentially serious injuries, fatalities and potential environmental catastrophe.”
Suncor applied for judicial review of the arbitration panel’s decision. On re-examination, the Alberta court agreed with the dissenting member of the arbitration panel and quashed the decision made by the majority.
• First, the court determined that the arbitration panel had inappropriately raised the threshold required to demonstrate a workplace drug and alcohol problem—from a “general” problem to a “significant,” “extreme,” or “serious” problem. Further, the court stated that the panel had improperly required Suncor to establish a causal connection between the drug or alcohol use and the incidents in the workplace. As a result of these errors, more rigorous standards were applied to Suncor than those outlined by the Supreme Court of Canada in Irving.
• Second, the court concluded that the arbitration panel had erred in considering only evidence of drug and alcohol problems within the bargaining unit. Although the panel was correct that the decision would only be binding on members of the union, the panel should still have considered evidence relating to the workplace as whole. The test from Irving requires a “general workplace problem” with drugs and alcohol, rather than a bargaining unit problem. Union and non-union employees, as well as contract workers, should all be included in the analysis.
• Finally, the court criticized the arbitration panel for failing to properly consider all of the evidence that was before it. One example was the number of “security incidents” recorded by Suncor between September 2004 and August 2013. The gross number of incidents was 2,276. However, the majority of the panel excluded all but 12 on the basis that the remaining incidents did not pertain to employees in the bargaining unit.
Takeaway for employers
Employers operating in hazardous work environments in Canada should be cautiously optimistic regarding their ability to implement random drug and alcohol testing policies. This decision confirms that random testing is still an option to improve employee safety. However, employers should be mindful that Irving requires an employer to show “sufficient” evidence of a drug and alcohol problem in the workplace to justify random testing of employees in safety-sensitive positions.
Although the Alberta court’s decision suggests the bar is not as high as the “significant,” “extreme,” or “serious” standard adopted by the majority of the arbitration panel, the exact requirements remain unclear.
The court has remitted this matter to a new arbitration panel, but Unifor has indicated that it will appeal the court’s ruling to the Alberta Court of Appeal. Stay tuned for further developments on this area of interest to all Canadian employers.