An Alberta Board of Arbitration has concluded that an employer’s random alcohol and drug testing policy does not stand up to the legal test set by the Supreme Court of Canada in last year’s Irving decision.  This is a significant early use of the Irving decision and provides insight into the problems an employer must face – and prove – before justifying random testing.

Background

On March 18, 2014, a three-person arbitration board released the long awaited decision in the random alcohol and drug testing policy grievance filed by Unifor, Local 707 (the “Union”) against Suncor Energy Inc. (“Suncor”).

On July 19, 2012, the Union (initially Communications, Energy and Paperworkers Union, Local 707, which later merged to create Unifor, Local 707) filed a grievance objecting to Suncor’s proposed random alcohol and drug testing policy on the basis that it is “unjustifiable, unreasonable, and violates employees’ privacy rights, human dignity, and human rights” and that its “sanctions unreasonable and unjustifiable searches of employees’ persons.”

Suncor’s proposed policy included random alcohol (by breathalyser) and drug (by urinalysis) testing with respect to Union members working in “safety sensitive” or “specified” positions.  Computer-based random selection assured that a minimum of 50% policy participants were tested per year.

On October 12, 2012, the Union applied for an injunction halting Suncor’s proposed policy in its Alberta oilsands operations. The Alberta Court of Queen’s Bench granted the injunction prohibiting Suncor from implementing the policy pending an arbitration decision on the Union’s grievance. The injunctive relief was upheld by the Alberta Court of Appeal on November 28, 2012.

Arbitration Decision

The arbitration was conducted over 23 days with significant evidence, including four experts and 19 witnesses.  It  resulted in a 106 page majority decision and a 67 page dissent.

The arbitration board considered the most recent Supreme Court of Canada decision inCommunications, Energy and Paperworkers Union, Local 30 v. Irving Pulp and Paper Ltd.2013 SCC 34 (“Irving”) relating to random testing which held that there must be “evidence of a problem with alcohol and drugs” in the workplace in order for random testing to be warranted.  Suncor presented evidence with respect to positive “for cause” testing, security incidents, dependency assessments and drug and alcohol use in the community of Fort McMurray.  However, Suncor’s evidence did not sway the majority of the arbitration board (Chair and Union Nominee) which found that:

  • 14 positive alcohol tests over a 9 year period in a workforce the size of Suncor does not establish that there is a significant problem or a legitimate safety risk;
  • Suncor’s evidence did not establish an “out-of-control” drug or alcohol culture in Fort McMurray;
  • Urinalysis (as opposed to oral) testing is unable to provide an employer with specific information regarding impairment or influence by drugs at the time the test is taken;
  • The policy was proposed without any time limits for reviewing its efficacy, was not targeted as narrowly as possible and does not use the least intrusive or most accurate testing methods.

Outcome

This is the first arbitral decision in Alberta to consider Irving. It demonstrates that employers must offer powerful and compelling evidence of a problem with alcohol and drugs at the particular worksite in order to meet the burden of proof placed upon them and successfully implement random testing in the workplace.

It should be noted, however, that this is not the final say on the matter. Suncor has stated it will be seeking judicial review of this decision and it is likely that many of the points discussed in this decision’s dissent will be raised upon review, including the existence of compelling evidence of an alcohol and drug problem in Fort McMurray and at Suncor’s operations.