The long-awaited arbitration decision is in, and the result is a
loss for random alcohol and drug testing. (See the Decision
here and the Dissent here.)
Suncor had tried to implement a random drug and alcohol
testing policy with respect to all of its
safety-sensitive employees in the oil sands. The union
resisted and was able to get an injunction from the Alberta courts
to prevent implementation of the policy until the arbitration was
A majority of the three member arbitration panel ruled against
Suncor. They found that there was insufficient evidence of a
problem with alcohol and drug use affecting the workplace,
and that the evidence was lacking on the issue of whether
random testing would help address whatever problem there was.
Meanwhile, a dissenting member of the panel found there was
compelling evidence (including three alcohol or drug related
fatalities and 149 positive post-incident alcohol and drug tests,
in 10 years) to justify random testing. Suncor intends to appeal
It is apparent from the decision that arbitrators are continuing
to struggle with determining what will be "sufficient
evidence" on the issues of whether there is a problem and the
effectiveness of random testing to mitigate the problem. Next
up will be the Teck Coal case, where the employer has promised
more, and more compelling, evidence on both issues.
We have reviewed the progress of the Teck Coal case in
earlier posts and will continue to follow it. One
potentially important difference from Suncor is that the union in
Teck Coal was not able to get an injunction to stop implementation
of the random testing policy. That means that Teck Coal may
be able to provide evidence of the positive effect of the policy
between the time of implementation and the arbitration hearing.
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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