Following the Supreme Court of Canada's decision in
Communications, Energy and Paperworkers Union of Canada, Local 30
v. Irving Pulp & Paper, Ltd. rendered in June 2013, which held
that there must be "evidence of a problem with alcohol and
drugs" in the workplace in order to justify the use of random
alcohol testing of union employees in a dangerous work environment,
the Alberta Arbitration Board has released its long- awaited
decision in Unifor, Local 707A (the
"Union") v. Suncor Energy Inc.
("Suncor"). The decision related to a
grievance the Union had filed against a random alcohol and drug
testing policy introduced by Suncor in 2012 (the
"Policy"). Suncor wanted to randomly
test all employees in "safety sensitive" positions for
alcohol and drug use. The Union argued that the Policy violated
employees' fundamental rights to privacy and respect and
dignity in the workplace. The Union was successful up to the Court
of Appeal level in initial injunction applications which meant that
Suncor was unable to implement the Policy until the Arbitration
Board rendered its ruling (and only then subject to the Board's
The issue before the Arbitration Board was whether Suncor had
exceeded its management rights in unilaterally implementing a
policy to randomly test employees for drugs (by urinalysis) and
alcohol (by breath tests). The Arbitration Board analyzed whether
the unilaterally imposed Policy was reasonable and, in doing so,
considered whether the benefits gained by Suncor in reducing its
safety risks were proportional to the harm that would occur to
employees by the significant infringement of their privacy
In examining the evidence, the Board determined that the 14
positive alcohol tests over a period of 9 years in a workforce of
Suncor's size, was not sufficient to establish that there was a
persistent problem of a drinking or drug culture in the workplace
which would justify the significant intrusion into the
employees'privacy. Also important was the fact that a
urinalysis test for drugs was unable to provide evidence on the
present impairment of an employee. Therefore, the Policy was held
to be unjustified and Suncor is not allowed to introduce it for
their unionized employees.
The random testing policy was held by the Arbitration Board to
be "an unreasonable exercise of [Suncor's] management
rights" because the Policy "...is not targeted as
narrowly as possible, does not use the least intrusive or most
accurate testing measures available and does not contain provisions
for communicating with employees around false positive
Suncor has announced that it will appeal the decision. A pdf
copy of the decision can be downloaded here.
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.
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