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Employment & Labour

Decision underlines difficulty of justifying random testing

A recent decision from an Alberta Arbitration Board reinforces the conventional wisdom that it is extremely difficult for employers to meet the evidentiary burden needed to justify random alcohol testing policies, says Toronto employment lawyer Doug MacLeod.

Unifor, Local 707A v. Suncor Energy Inc. is one of the first decisions to interpret the Supreme Court of Canada’s leading case in this area – Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., MacLeod tells AdvocateDaily.com.

The split 2-1 decision in Suncor is generating legal confusion for employers over when the random tests are appropriate, the Financial Post reports.

“In the Irving case, the SCC concluded that the introduction of a random alcohol policy was an unreasonable exercise of management rights under the collective agreement,” says MacLeod, principal of MacLeod Law Firm. “In particular, the benefit to the employer from a random alcohol testing policy in a dangerous workplace was found to be disproportionate to the harm to employee privacy.”

To assess the employer’s side of the balance, MacLeod says the SCC concluded the employer must prove (i) there is evidence of a demonstrated problem with alcohol use in that workplace; (ii) the workplace is a dangerous work environment, and (iii) there are reasonable grounds to believe that an employee(s) was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse.

“In the Irving case, the SCC agreed with an adjudicator who concluded that eight incidents over a 15-year period did not reflect a significant problem with workplace alcohol use,” says MacLeod. “In addition, the expected safety gains to the employer were found to range ‘from uncertain … to minimal at best,’ while the impact on employee privacy was found to be much more severe.”

In Suncor, the parties agreed the union employees worked in a dangerous work environment. The employer could not, however, prove there was a demonstrated problem with alcohol use in the bargaining unit.

“In particular, only 0.0103 per cent of employees tested positive for  alcohol in 2013, and and only 0.527 per cent of the total security incidents involved union employees,” says MacLeod. “Accordingly, the grievance was upheld and the random alcohol testing policy was struck down.”

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