At first instance, the union filed a grievance challenging the
mandatory random alcohol testing policy for employees in safety
sensitive positions which the employer, Irving Pulp and Paper
Limited, unilaterally implemented at its paper mill. Under
this policy, 10% of employees in safety sensitive positions were to
be randomly selected for unannounced breathalyser testing over the
course of a year. A positive test for alcohol lead to disciplinary
action, including dismissal. The Arbitration Board allowed the
grievance and concluded that the policy was unjustified because of
the absence of evidence of an existing problem with alcohol use in
On judicial review, the Board's award was set aside by the
New Brunswick Court of Appeal who concluded that employer and
employees' interests are reasonably balanced when random
alcohol testing is introduced in a workplace that is inherently
The case was heard by the Supreme Court of Canada on December 7,
2012. The legal issue at the heart of this case was the
interpretation of the management rights clause of the collective
agreement and more specifically, whether the employer was justified
in unilaterally imposing a policy of mandatory random alcohol
testing, given the enhanced safety risks of the employer's
Many arbitration decisions have been rendered which provide that
an employer can impose a rule with disciplinary consequences only
if the need for the rule outweighs the harmful impact on
employees' privacy rights. This approach has resulted in
consistent arbitral case law in which it has been found that when a
workplace is considered inherently dangerous, employers are
justified in testing their employees in the following
circumstances: if there is a reasonable cause to believe that the
employee was impaired while on duty, was involved in a workplace
accident or incident, or was returning to work after treatment for
That being said, a policy of mandatory random testing imposed
unilaterally, even in safety sensitive positions, has been
overwhelmingly rejected by arbitrators indicating that such
policies are an unjustified affront to the dignity and privacy of
employees. The dangerousness of a workplace although clearly
relevant, has never been found to be an automatic justification for
such a policy.
In the present case, it was ultimately decided that the employer
had not demonstrated the requisite safety concerns that would
justify universal random testing. On this point, the Supreme Court
stated "But I have been unable to find any cases, either
before or since Nanticoke, in which an arbitrator has concluded
that an employer could unilaterally implement random alcohol or
drug testing even in a highly dangerous workplaces absent
demonstrated workplace problem". As a result, the Supreme
Court found that the employer exceeded the scope of its rights
under the collective agreement by imposing random alcohol testing
in the absence of evidence of a problem in the workplace with
In light of this decision, employers, even in non-unionized
settings, must be mindful of their obligation to demonstrate the
reasonableness of each testing standard and in contemplating the
adoption of testing as part of a drug and alcohol policy. Employers
will also need to consider the burden they have to show that
testing is necessary and reasonable in the specific circumstances
of their activities. As stated by the Supreme Court
“…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.” Accordingly, employers are encouraged to
revisit their current practices and their alcohol and drug policies
to ensure that proper measures are implemented and that random
testing be imposed, as the case may be, within the parameters of
the present Supreme Court decision.
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.
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