The Alberta Court of Appeal, in a 2 to 1 decision released
December 5, 2012, has kept an injunction in place to prevent Suncor
from implementing random drug testing of employees until a union
grievance can be heard.
Earlier this year, Suncor announced plans to begin random drug
testing of employees and contractors in safety-sensitive
positions. While a drug testing program has been in place for
some time, tests were limited to specific situations, such as after
an incident. The union representing the affected employees
filed a grievance opposing the introduction of random
testing. Despite the grievance, Suncor planned to begin
random testing of employees on October 15, 2012, before grievance
arbitration began. On October 12, the union obtained an
injunction preventing random testing until the grievance was
resolved. Suncor sought a stay of the injunction pending an
appeal, but the stay was denied by a single Justice of the Court of
Appeal on October 17. The appeal itself was heard by a three
Justice panel of the Court of Appeal on November 28, with the court
releasing its decision on December 5.
A majority of the Court of Appeal upheld the injunction, finding
the decision to grant the injunction was reasonable. It
agreed with the court below that a temporary delay in
implementation would not be a great inconvenience to Suncor, noting
particularly that Suncor planned a later implementation date for
contractors. The majority also found that Suncor had not
provided evidence that random testing would significantly improve
safety, relative to the current testing program.
Justice Côté dissented from the majority
opinion. He would have removed the injunction, and allowed
Suncor to implement random testing. He found the risks of an
accident are significant, and safety should outweigh union
members' privacy interests.
The merits of the random drug testing policy were not squarely
before the courts in proceedings on the injunction. The
merits will be considered in grievance arbitration, scheduled to
begin this month.
In the meantime, the Supreme Court of Canada has heard arguments
in a case involving random alcohol testing in a New Brunswick paper
mill. The case, Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper, Limited,
promises to provide new guidance on the implementation of random
drug or alcohol testing in safety-sensitive workplaces. When
the Supreme Court releases its decision, it is likely to affect the
outcome of Suncor's proposed policy.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).