Random drug and alcohol testing at Suncor still possible

Appeal court disagrees with arbitration board’s methods of determining the existence of a problem in the workplace that justifies random testing
By Tim Mitchell
|Canadian Employment Law Today|Last Updated: 08/09/2016

A random drug and alcohol testing policy of Suncor workers has been reinstated by the Alberta Court of Queen’s Bench after the policy was struck down by an arbitration board.

In 2012, oil company Suncor introduced a random drug and alcohol testing policy for all employees in safety-sensitive positions at its oil sands operations in the Regional Municipality of Wood Buffalo, Alta. The policy was part of an array of measures to ensure the safety of its workforce in an admittedly dangerous workplace. For many years, Suncor had been concerned about safety hazards posed by alcohol and drug use by individuals within the workplace. There are many hazards at the sites of the oil sands operations, including heavy equipment, high voltage power lines, chemicals, radiation sources and explosives. Further, many large and complex mining and industrial equipment are used at these sites.

The union filed a policy grievance challenging the random testing policy.

An Alberta arbitration board allowed the union’s policy grievance and struck down Suncor’s random drug and alcohol testing policy in a 2014 decision. This decision was the first case in Alberta to consider the issue of random drug and alcohol testing since the Supreme Court of Canada issued its landmark decision in Communications, Energy and Paperworkers, Local 30 v. Irving Pulp & Paper Ltd. In Irving, the Supreme Court held that a dangerous workplace does not automatically justify random testing. Rather, courts and arbitral tribunals must balance competing interests and determine whether the testing imposed by the employer is proportionate to the concern it seeks to address.

The majority of the arbitration board found Suncor’s policy to be unreasonable despite considerable evidence of drug problems in the workplace. It held that Suncor had failed to show an existing problem at the worksite and in the bargaining unit that was sufficiently serious to justify the intrusive nature of the random testing, and found that the harm to employee privacy rights due to the random testing policy outweighed the safety benefit to be gained by the employer.

The dissent found the policy to be a reasonable exercise of management rights under the collective agreement, and outlined a number of deficiencies in the majority’s reasoning, including its refusal to consider evidence related to employees outside of the bargaining unit represented by the union, and the misapplication of the test for the implementation of random testing as set out in Irving.

Judicial review of arbitration decision

Suncor brought an application for judicial review of the arbitration decision to the Alberta Court of Queen’s Bench. That court granted Suncor’s application for judicial review and quashed the arbitration board’s award on the basis that it was unreasonable.

The court found that the majority of the arbitration board erred in its application of the Irving test by imposing more rigorous requirements than those articulated by the Supreme Court. The majority stated that for the random testing policy to be justified, Suncor was required to adduce evidence of a “significant” or “serious" problem with drugs and alcohol in the workplace. However, the court noted that the test set out in Irving is inherently flexible, and only requires evidence of a demonstrated or general problem with drugs and alcohol in a dangerous workplace, rather than a significant or serious problem.

The court further found that the majority of the arbitration board erred in finding that Suncor needed to demonstrate a causal connection between the drug and alcohol problem and the history of accident, injury and near-miss at the workplace. The court held that Irving does not impose such a threshold requirement, and noted that the majority decision in Irving makes no reference to any obligation to show such a causal connection. Rather, the employer must demonstrate that the particular random testing policy in question appropriately balances competing interests and is proportional to the harm to employee privacy.

The court held that the majority of the arbitration board further misapprehended the Irving test by stating that it could only consider evidence of a drug and alcohol problem within the bargaining unit. The Irving test requires evidence of a general “workplace” problem with drugs and alcohol, and the Supreme Court had used the term “workplace” rather than “bargaining unit” throughout the Irving decision. The court held that workplace safety is an aggregate concept, particularly in dangerous environments. Thus, a broader focus on the workplace, as opposed to a narrow focus on the bargaining unit, is consistent with an employer’s obligation to ensure the safety of its entire workplace (unless there is evidence to suggest that drug and alcohol use within a bargaining unit differs in a meaningful way from that in the broader workforce). While the arbitration decision was only binding upon members of the bargaining unit, it did not necessarily follow that the arbitration board could only consider evidence tied directly to that bargaining unit. As such, the arbitration board should have considered evidence relating to the entire workplace, including non-unionized and contract workers.

Lastly, the court found that the majority of the arbitration board failed to properly consider all the relevant evidence. It held that the board’s decision “effectively ignored” the evidence about the high number of security incidents at the relevant worksites. Further, by focusing exclusively on the bargaining unit, the majority “ignored evidence pertaining to some two-thirds of the individuals working in the Oil Sands Operations.”

The court quashed the arbitration board’s award. While noting that in some judicial review applications the court can substitute its own decision for the quashed arbitral decision, the court noted that this is not an appropriate case to do so and ordered the matter to be remitted before a fresh panel.

Shortly after the release of the decision, the union announced its intention to appeal.

Implications for employers

Though the decision is being appealed, it is an optimistic one for employers who wish to implement random drug and alcohol testing to address legitimate safety concerns arising from drug and alcohol problems in inherently dangerous workplaces.

The judicial review decision indicates that random testing is still a viable option for employers in Alberta in appropriate circumstances. The Alberta Court of Queen’s Bench found that the majority of the arbitration board’s approach to Irving and its incorrect elevation of the threshold Irving test forecloses virtually any possibility of random testing, regardless of the circumstances. This runs contrary to the Supreme Court’s statement in Irving that “this is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.”

As a result of the Irving decision and its interpretation by in Suncor, an employer that wishes to justify random and alcohol testing must be able to demonstrate that it has a dangerous or hazardous workplace, and that there is a general problem with drug or alcohol use in that workplace.

For more information see:

Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.).

Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, 2014 CarswellAlta 457 (Alta. Arb.).

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 CarswellNB 275 (S.C.C.).

Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright.com.

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