Supreme Court of Canada releases decision in
Communications, Energy and Paperworkers Union of Canada, Local
30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34
On June 14, 2013, the Supreme Court of Canada (SCC) released its
decision on management’s right to unilaterally implement
random alcohol testing in a unionized workplace.
Irving Pulp and Paper operated a paper mill in Saint John, New
Brunswick. In 2006, the company implemented random alcohol testing
for employees who worked in “safety sensitive”
Perley Day was randomly selected for alcohol screening. Mr. Day, a
teetotaller who had not had a drink since 1979, found the testing
invasive on his privacy and the Union grieved the random testing
policy on his behalf.
The parties agreed that Mr. Day worked in a safety sensitive
position and that the workplace was a dangerous work
The majority of the SCC held that random alcohol screening in
the circumstances was unreasonable and violated the collective
agreement. The majority affirmed that under a collective agreement,
management’s right to unilaterally make rules must be
balanced against an employee’s right to privacy.
The employer’s interests in a safe workplace were, of
course, legitimate. However, they had to be balanced against the
invasive nature of the alcohol testing program which engaged
broader interests including liberty, personal autonomy, and freedom
from “public embarrassment”.
The SCC agreed that the safety benefits to the employer ranged
from “uncertain to … minimal at best”, while the
impact on employee privacy was severe. As a result, the SCC found
the policy to be an unreasonable exercise of management rights
under the collective agreement.
The SCC emphasised that a dangerous workplace alone has never
been found to be sufficient to justify random alcohol or drug
testing in the absence of a demonstrated alcohol or drug abuse
problem. Indeed, Abella J. noted that she had only found two
arbitral decisions upholding random alcohol testing programs and,
in both cases, the employer had demonstrated a general problem with
alcohol use in a dangerous workplace.
The SCC explicitly stated that it was not deciding that danger
alone would never justify a testing program, and said that it was
not “beyond the realm of possibility” that a random
testing program might be justified without evidence of a substance
abuse in “extreme circumstances”. However, given that
dangerous workplace justifications have been rejected in the
context of railways, chemical plants, and “workplaces that
pose a risk of explosion”, employers should be extremely
cautious before implementing a random drug and alcohol testing
program in the absence of demonstrated substance abuse at work.
The three judges’ dissenting opinions questioned whether
decisions with consequences to the public interest beyond the
particular union and employer should be left in the hands of the
arbitrators. That statement appears as a subtle invitation for the
legislature to intervene, perhaps setting base rules that balance
privacy with safety.
Take Away Points for Employers
The case has a number of lessons for employers, particularly for
employers in unionized workplaces:
Random alcohol and drug testing will be carefully scrutinized.
Likely, random testing will only be permitted in a dangerous work
environment where there is evidence of a general problem of
substance abuse in the workplace.
Testing will continue to be permitted where an employer has
reasonable cause to believe an employee impaired, where an employee
is involved in an accident or near miss, and as part of a return to
work program for substance abuse.
The SCC made two other findings that deserve comment:
First, it held cases from non-union environments “were
… of little conceptual assistance” and the judgment
could be limited to unionized workplaces on that basis. That
distinction is supported by recent developments in Alberta, where
the balance of jurisprudence more strongly supports
management’s safety interests in non-unionized
Second, the SCC held that employers are free to negotiate
random drug and alcohol testing policies directly with their union.
However, such policies must be “expressly and clearly
negotiated”. In our view, while such negotiations may be
acceptable from a labour law perspective, we believe that human
rights and privacy legislation would allow individual employees to
bring complaints notwithstanding the collective agreement. Whether
such complaints are successful will depend on the context of the
employer’s and union’s agreement.
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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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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