The Supreme Court of Canada has issued a ruling that could make it harder for employers to unilaterally impose mandatory, random alcohol tests — in the name of safety.
In a 6-3 decision released on Friday, June 14, 2013, the court ruled Irving Pulp & Paper Ltd’s new random alcohol testing policy, is unreasonable. According to the new policy 334 employees whose jobs were deemed “safety sensitive” will be randomly subjected to a Breathalyzer test. Ten per cent of these employees would be tested in any given year.
Irving unilaterally adopted their “Policy on Alcohol and Other Drug Use” under the management rights clause of the collective agreement without negotiating with the union.
In March of 2006 Local 30 of the Communications, Energy and Paperworkers Union of Canada (CEP) now known as Unifor filed a grievance after an employee who is a “teetotaler” was given a random Breathalyzer test. Although he tested negative the union felt that their member’s dignity and privacy had been violated all in the name of safety.
The Supreme Court says a dangerous workplace is not automatic justification for random testing. The dangerousness of a workplace only justifies testing certain employees in certain circumstances such as the following:
Where there are reasonable grounds to believe an employee was impaired while on duty;
Where an employee was directly involved in a workplace accident or significant incident; and
Where the employee returns to work after treatment for substance abuse.
The union opposed the test sanctioned by Irving management maintaining that the policy was unreasonable since neither the mill nor the employee had a documented problem with alcohol abuse. A labour arbitration board agreed with the union, ruling that Irving had failed to show why the policy was required.
The company appealed this ruling to the New Brunswick Court of Appeal. The appeal court overturned the decision declaring the pulp and paper mill was a “dangerous workplace” and because of that alone, the company did not need to show a history of alcohol incidents or an “out of control” culture of substance abuse in order to bring in random testing.
Siding with the original arbitration board decision, the Supreme Court ruled that Irving had failed to produce enough evidence to demonstrate a serious enough problem to “warrant an invasion of worker privacy without union consent.”
The Irving case has been watched very closely by other unions, companies and civil rights groups across the country. Legal experts say this case could have broad implications for the growing number of employers with similar testing policies.
For example, in Fort McMurray, Alberta, CEP Local 707 has also launched a grievance against Suncor Energy Inc. who, like Irving Ltd. told their workers they were introducing a sweeping random drug-and-alcohol testing policy in which all employees in “safety-sensitive” roles could be tested for drug or alcohol use at any time. According to the union, at least 50 per cent—about 1,445 unionized workers would be tested annually.
The union argues the policy would “violate the privacy and dignity of employees, as well as the terms of their collective agreement.” The new testing protocol was supposed to take effect in October however representatives of CEP have succeeded in convincing Alberta’s courts to grant an injunction blocking Suncor from imposing the testing before the dispute is decided in arbitration. The arbitration hearings in the Suncor case are scheduled to take place over the next few months.
Want to view the Supreme Court decision on Communications, Energy and Paperworkers Union of Canada, Local 30 vs. Irving Pulp and Paper, Limited?