THE EMPLOYERS' EDGE
Supreme Court of Canada Decision in Irving Pulp and Paper Followed by Arbitration Board in Recent Policy Grievance
On June 14, 2013, CCP released a blog on the Supreme Court’s decision in the matter of Communications, Energy and Paper Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. This decision examined the reasonableness of a random drug and alcohol testing policy instituted by an employer. A majority of the court determined that an employer must demonstrate evidence of significant or serious alcohol problems in the workplace and establish a causal link to an increased safety risk before such a program/policy could be implemented.
On March 18, 2014 an arbitration decision was released between Suncor Energy Inc. and UNIFOR Local 707A which used the reasoning in Irving to quash a random drug and alcohol testing policy. The policy identified approximately 82% of employees’ positions as ‘safety sensitive’ and therefore eligible for testing. The selection was random, based on a computer application but the frequency would result in approximately 50% of employees being tested each year. The Arbitration Board, chaired by Tom Hodges ultimately ruled that the policy was an unreasonable exercise of the employer's management rights.
Arbitrator Hodges directly cited Irving, placing the onus on the employer to establish that alcohol or drug use is a serious problem in the workplace, and workplace safety will be bolstered by the policy. The ruling found that the employer failed to establish a ‘serious’ drug/alcohol issue within the workforce, the privacy concerns with administering a Breathalyzer test were not justified, and drug testing would not establish current impairment. Therefore the policy was ruled to be unreasonable and the grievance upheld.
The lawyers at CCP can assist employers in developing enforceable drug and alcohol policies as well as navigate the difficult issue of accommodation where drug and alcohol issues arise.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.