The Supreme Court of Canada recently rendered a divided decision in which it concluded that an employer's policy imposing mandatory random alcohol testing was not justified.1 This decision is of interest to employers in Quebec since it confirms arbitral case law on the subject.
Background
In 2006, Irving Pulp & Paper, Ltd. ("Irving" or
the "employer") unilaterally adopted a policy on the
consumption of alcohol and other drugs (the "policy").
One aspect of this policy provided that over the course of a year,
ten percent (10%) of employees occupying safety-sensitive positions
were to be selected at random to undergo unannounced breathalyser
tests. A positive test (i.e., blood alcohol concentration greater
than 0.04%) would lead to severe disciplinary action, possibly
including dismissal. Moreover, refusal to submit to the test would
result in immediate dismissal.
The policy also provided for mandatory testing 1) if there was
reasonable cause to suspect that an employee was consuming alcohol
or drugs in the workplace, 2) following a workplace accident or
incident in which an employee was directly involved, and 3) as part
of a monitoring program for employees returning to work after
voluntary treatment for substance abuse.
The grievance sought to challenge only the random alcohol testing
aspect of the policy as it pertained to employees occupying
safety-sensitive positions.
The decisions rendered by the courts below
In first instance, the arbitration board of New Brunswick (the
"Board"), weighed the employer's interest in
implementing random alcohol testing as a workplace safety measure
against the violation of the employees' right to privacy which
resulted from the policy. Following its analysis, the Board allowed
the grievance and concluded that random testing was not
justified.
The Court of Queen's Bench set aside the Board's decision,
and the Court of Appeal dismissed the appeal. The latter therefore
recognized the employer's right to unilaterally impose this
policy, given the dangerous nature of the workplace.
The Supreme Court decision
The Supreme Court restored the Board's decision. The issue
at the heart of this case is whether unilaterally implementing a
mandatory random alcohol testing policy constituted a valid
exercise of the employer's management rights under the
collective agreement. With regards to the exercise of the
employers' management rights, the Court pointed out that, in
unionized workplaces, a policy imposed unilaterally by the employer
must be reasonable and must fall within the scope of the management
rights clause contained in the collective agreement. The Court
added that when assessing the reasonableness of a policy that
affects the employees' privacy, courts generally adopt a
"balancing of interests" approach.
This test requires one to answer the following question: "Was
the benefit to the employer from the random alcohol testing policy
in this dangerous workplace proportional to the harm to employee
privacy?"2
On the one hand, it is necessary to evaluate the risks that the
employer sought to address through random alcohol testing. Such
risks included both the risk associated with the particular
grievor's position as a millwright as well as the risk
associated with the particular workplace. This review led the Board
to conclude that the millwright's functions presented risks and
dangers in the operations performed both to the person occupying
the position, to third parties, as well as to the environment and
to property. As for the workplace, it was "one in which great
care must be taken with safe work practices," and, according
to the Board, "the mill in normal operation is a dangerous
work environment."3
That being said, the Supreme Court recalled that this conclusion
is not sufficient to justify mandatory random testing:
"[45] But, as previously noted, the fact that a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally. The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse. It has never, to my knowledge, been held to justify random testing, even in the case of "highly safety sensitive" or "inherently dangerous" workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105 L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM AgriIndustries), in the absence of a demonstrated problem with alcohol use in that workplace. That is not to say that it is beyond the realm of possibility in extreme circumstances, but we need not decide that in this case."4
As for evidence of an alcohol-related problem in the workplace,
the Supreme Court agreed with the Board, when it noted that there
had only been eight alcohol-related incidents over a 15-year period
and that it had only a small impact on the safety risks in the
workplace.5 Moreover, the Board was not convinced by the
employer's argument that deterrence was a major benefit of
random alcohol testing.6
On the other hand, the employees' right to privacy must be
taken into account. The Supreme Court held that the Board's
position on this point was unassailable and that breathalyser
testing "effects a significant inroad" on an
employee's right to privacy.7
Comments
The Supreme Court therefore upheld the Board's ruling that
the employer's policy constituted an unreasonable exercise of
its management rights.
However, the Court added that this decision does not mean an
employer can never unilaterally impose random alcohol and drug
testing on all its employees in a dangerous workplace. Such a
policy may well be justified if it represents a proportionate
response in light of legitimate safety concerns, which could be the
case if the employer were able to demonstrate increased safety
concerns, such as a generalized problem of alcoholism or drug abuse
in the workplace.
Moreover, the Supreme Court confirms a consistent line of arbitral
case law whereby arbitrators have found that when a workplace is
dangerous, an employer can test an individual employee if there
exists reasonable cause to believe that the employee was impaired
while on duty was involved in a workplace accident or incident, or
in the event an employee is returning to work after treatment for
substance abuse.
These principles must of course be applied on a case-by-case
basis.
Footnotes
1. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34.
2. Id., para. 43.
3. Id., para. 44.
4. Id., para. 45.
5. Id., paras. 46 and 47.
6. Id., para. 48.
7. Id., paras. 49 and 50.
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