A unilaterally imposed policy mandating random alcohol testing with disciplinary consequences for either a failure to take the test or for a positive test result is unjustified — even in a dangerous workplace — without of evidence of the requisite safety concerns that would justify such random testing, the Supreme Court of Canada has ruled.
Irving Pulp & Paper operates a pulp mill in New Brunswick. In 2006, it unilaterally adopted a workplace policy that mandated random alcohol testing of employees that held safety sensitive positions in the mill. Random testing was achieved by using an off-site computer which, in any 12-month period, randomly selected 10 per cent of people on a list of employees who held safety sensitive positions. The policy provided that a positive test for alcohol could give rise to significant disciplinary consequences, including dismissa,l and further provided that a failure to submit to testing was grounds for immediate dismissal.
An Irving employee who held a safety sensitive position was randomly tested and, although the test revealed he had a blood alcohol level of zero, a policy grievance was filed challenging the without-cause aspect of the alcohol testing policy. The grievance proceeded to arbitration. A majority of the arbitration board determined Irving had established the mill was a dangerous work environment but had failed to demonstrate it was within the ultra-dangerous category of workplaces at which random testing might be permissible. Accordingly, the board went on to consider the evidence of alcohol use in the workplace and found there was insufficient evidence of alcohol use to justify the testing policy on the basis that there was a safety risk that outweighed an employee's right to privacy. The board found the policy to be unreasonable and unjustified.
The decision of the arbitration board was quashed on judicial review. The matter proceeded to the New Brunswick Court of Appeal, which began its analysis by noting that in arbitral jurisprudence it is clear that an employer has the unilateral right to adopt workplace rules, provided those rules fall within the analytical framework set out in a decision known as Lumber and Sawmill Workers Union, Local 2537 v. KVP Co. (the KVP rules). In that case it was held that the enforceability of a workplace rule depends upon compliance with six criteria, only one of which — the reasonableness of the policy — was at issue in Irving. As to reasonableness, the union argued that:
• arbitrators in Canada have overwhelmingly rejected mandatory, random and unannounced drug and alcohol testing
• sufficient evidence of a pre-existing drug or alcohol problem at a workplace is a precondition to the enforceability of such policies unless the workplace qualifies as ultra-dangerous, such as, for example, a nuclear power plant.
The New Brunswick Court of Appeal rejected the union’s argument, finding that arbitrators and arbitration boards had not overwhelmingly rejected mandatory, random and unannounced alcohol testing in a workplace. It went on to find that such random, mandatory alcohol testing in a workplace is justified once the employer establishes that its workplace operations are inherently dangerous. The court held that once that determination was made, there was no need on the part of the employer to adduce evidence of an alcohol problem in the workplace in order to justify the alcohol testing policy. The court held that the Irving mill was inherently dangerous and the drug testing policy imposed by the company was reasonable as the testing was done by breathalyzer and applied only to those employees who held safety sensitive positions.
The Supreme Court of Canada allowed the union's appeal and set aside the decision of the New Brunswick Court of Appeal. In a six to three decision, the majority of the Supreme Court held that the fundamental legal issue at stake was the interpretation of the management rights clause of the collective agreement. It found the arbitral jurisprudence that had developed with respect to the unilateral imposition of management rights with respect to safety rules had produced what it described as a "carefully calibrated 'balancing of interests' proportionality approach" under which workplace safety had to be balanced against privacy rights. The court held that an employer may only discharge or discipline an employee for just or reasonable cause and, as a result, rules unilaterally enacted by an employer that may result in discipline must both be consistent with the applicable collective agreement and meet the requirement for reasonable cause.
The Supreme Court held that by employing a KVP reasonableness analysis, arbitrators have, when considering unilaterally imposed employment rules, adopted the balancing of interests approach. As a result, alcohol and drug testing of individual employees in safety sensitive positions have been held to be reasonable if the employer has reasonable cause to believe an employee is impaired while working, has been directly involved in a workplace accident or significant incident, or is returning to work after a treatment for alcohol or substance abuse. That said, the Supreme Court held that there were no arbitral authorities to support the proposition that in a dangerous workplace there is an automatic right granted to an employer to unilaterally impose universal random alcohol or drug testing. While the court left open the possibility of such testing in extreme circumstances, it found that, in the Irving situation, ultra-dangerous or highly safety sensitive does not justify an employer unilaterally imposing random alcohol testing without evidence of a demonstrated problem with alcohol in the workplace. While the inherent dangers of a workplace were certainly relevant to that balance, a finding of danger does not end the balancing of interests inquiry but, according to the Supreme Court of Canada, only constitutes the starting point of the proportionality exercise.
It is to be noted there was a dissent. The dissenting opinion would have affirmed the decisions of the lower courts and quashed the decision of the arbitration board. Those in dissent found that it was incontrovertible that the arbitrators hearing the grievance had applied an evidentiary standard unknown at law and, in their view, an employer should not have to show there is a "significant problem" with respect to alcohol in the workplace or show that there is a nexus between alcohol use in the workplace and an injury, incident or near miss history. As stated in dissent "to require that an employer tie alcohol use to actual incidents at the mill, as the board in this case did, is not only unreasonable, it is patently absurd."
While the Irving decision is within the context of a unionized workplace at which there is a collective agreement, the Supreme Court made plain it would be wrong to conclude that an employer in a non-union environment is free to exercise its own discretion about worker safety. As the Supreme Court pointed out, all provinces have legislation protecting workplace safety that need be balanced against privacy and human rights considerations. In the end, as the court stated, there will in all cases be a requirement for a balancing of the safety and privacy interests.
"Even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace," said the Supreme Court.
For more information see:
• Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.).
• Lumber and Sawmill Workers Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.).
Robert England practices in the litigation group of Miller Thomson in Toronto with special expertise on employment law and occupational health and safety. He can be reached at (416) 595-8566 or email@example.com.