Facts
Decision
Comment



In CEP, Local 30 v Irving Pulp & Paper, Ltd(1) a divided Supreme Court has ruled for the first time on the issue of drug and alcohol testing in unionised workplaces.

Facts

The case involved a random alcohol testing policy established by Irving Pulp & Paper in the exercise of its management rights. The policy applied to employees in safety-sensitive positions in a craft paper mill that constituted an admittedly dangerous work environment. An employee selected for random alcohol testing objected and the union filed a grievance against the policy. The grievance was allowed by the arbitration board, essentially on the ground that the employer had failed to demonstrate a serious problem of alcohol abuse in the workplace (there had been eight incidents in which employees were found to be under the influence of alcohol in the 15 years before the filing of the grievance) that would make imposing such a rule a reasonable exercise of management rights. The New Brunswick courts quashed the decision as an unreasonable (Queen's Bench) or erroneous (Court of Appeal) application of the law.

Decision

The Supreme Court majority decision endorsed a line of arbitral case law that permits testing of employees in safety-sensitive positions in dangerous work environments for cause and, in limited circumstances, for alcohol impairment on a random basis.

The majority decision strongly emphasised that in a unionised environment, an employer must either negotiate a drug and alcohol testing policy with the union or bring any policy established as an exercise of management rights within the tests for reasonableness in the exercise of management rights set out in KVP Co.(2)

The Supreme Court majority found that the Nanticoke decision(3) "summarized the principles emerging from 20 years of arbitral jurisprudence under the KVP test for both drugs and alcohol testing". The majority held that an employer and a union are of course free to negotiate drug and alcohol testing policies as part of a collective agreement.

For the majority, Canadian arbitral case law permits drug and alcohol testing in inherently dangerous work environments as an exercise of management rights in the following circumstances:

  • 'For cause' testing of individual employees is possible where reasonable grounds exist to consider that an employee may be under the influence of drugs or alcohol, or has been involved in an accident or other incident causing safety concerns. In addition, such testing can constitute part of a return to work agreement negotiated with a union; in this case, the agreement can include random drug and alcohol testing of the individual employee.
  • Canadian arbitral case law also permits random testing if the employer can demonstrate that there is a generalised drug or alcohol abuse problem in a particular workplace that is an inherently dangerous working environment.

The majority concluded, in general terms, that if random testing imposed by an employer in a dangerous workplace "represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified".

The majority of the Supreme Court found that the arbitration board's decision was a reasonable application of these principles of arbitral case law. Hence, the lower courts should not have intervened and set aside the board's decision. The majority relied to a large degree on what it found was the employer's failure to demonstrate the "requisite" problems of alcohol abuse in the workforce.

In reaching this conclusion, the Supreme Court majority referred with apparent approval to two arbitral decisions in which a random alcohol testing policy was upheld. In the first of these decisions(4) the employer had relied on detailed evidence of the presence of empty alcohol containers in the workplace, numerous instances in which employees were observed drinking in the workplace or were observed to smell of alcohol, and numerous incidents of unreported alcohol abuse at work.

In the second decision(5) the employer had relied on the results of an employee survey conducted by an external professional polling company concerning alcohol-related incidents and near accidents due to alcohol. The results showed a disproportionately high rate of accidents due to substance abuse, with 2.7% of employees reporting 'near misses' due to alcohol abuse in the preceding year. The arbitration board found that such survey evidence justified the employer's random testing policy.

Thus, nothing in the Supreme Court majority's judgment limits an employer's right to establish:

  • 'for cause' drug or alcohol testing policies "where there are reasonable grounds to believe that an employee was impaired while on duty, where the employer was directly involved in a workplace accident or significant incident or where the employee returns to work after treatment for substance abuse"; or
  • random drug or alcohol testing policies in dangerous workplaces, provided that the employer establishes the existence of a general drug or alcohol abuse problem in a particular workplace such that the policy represents a proportionate response.

For the minority, the question of drug and alcohol testing in dangerous workplaces was best seen as involving not simply the employer, employees and the union, but the public and the environmental risks that can be posed by accidents in many dangerous workplaces. The minority found that the arbitration board's decision failed to meet the reasonableness standard because of its misapplication of arbitral case law on drug and alcohol testing, particularly in the evidence that an employer was required to put forward to justify a random testing policy, and failed to state any rationale for its departure from that arbitral case law.

The minority also found that the arbitration board's decision was unreasonable in relying on the relatively small number (10% annually) of employees randomly tested under Irving Pulp & Paper's policy as proof that the employer did not consider that a serious problem existed. The minority found that the deterrence that the policy aimed at could reasonably be attained with relatively small numbers of tests – something within the mainstream of random alcohol testing programmes. Moreover, requiring larger numbers of tests would increase intrusion of privacy of which the union had complained.

Comment

Both the majority and minority judgments rejected the drawing of distinctions among inherently dangerous workplaces based on efforts to distinguish precise degrees of dangerousness.

Overall, the result in Irving Pulp & Paper is that employers may continue to test individual employees for cause in dangerous work environments and may randomly test employees in such work environments if they establish the existence of a substance abuse problem. In short, it confirms this management right of employers, subject to "conclusive" evidence being presented in each case.

The majority noted that parties are free to negotiate their own rules of drug and alcohol testing and include them in their collective agreement. These rules may differ from those limiting drug and alcohol testing under a general 'management rights' clause. The minority did not disagree with this proposition. Of course, negotiated terms would have to take into account the duty of reasonable accommodation for employees with substance abuse problems found in Canadian human rights law.

For further information on this topic please contact Thomas Brady or Robert Dupont at Heenan Blaikie LLP by telephone (+1 514 846 1212), fax (+1 514 846 3427) or email (tbrady@heenan.ca or rdupont@heenan.ca).

Endnotes

(1) 2013 SCC 34.

(2) (1965), 16 LAC 73.

(3) Re Imperial Oil Ltd and CEP, Local 900 (2006), 157 LAC (4th) 225 (M Picher).

(4) Greater Toronto Airports Authority v Public Service Alliance of Canada, Local 0004, [2007] CLAD No 243 (QL) (Devlin).

(5) Communications, Energy and Paper Workers Union of Canada, Local 777 v Imperial Oil Ltd (TJ Christian), May 27 2000 (unreported).