Employers are still wrestling with the consequences of the
Supreme Court's landmark decision on the random drug and
alcohol testing of employees in Irving Pulp.
While the initial reaction from arbitrators appears to suggest
that Irving Pulp made the likelihood of
such a program surviving a challenge minimal, a decision out of the
British Columbia Labour Relations Board indicates that there may
still be room in Canada for these sorts of programs.
Teck Coal v USW
The employer in this case
implemented a random drug and alcohol testing program for employees
across its mining operations in British Columbia. Approximately a
month prior to the landmark Supreme Court decision
in Irving Pulp, an arbitrator refused the
union's motion to stay the implementation of the program
pending a decision on its validity. After the decision
in Irving Pulp was released, the
arbitrator refused to reconsider his decision not to suspend the
testing program, and the Union applied to the Board for an order
quashing that decision.
Under BC law the Board's
jurisdiction to overturn the arbitrator's ruling is very
limited, and concerned with mostly procedural matters. The Board
found that the union's complaints met none of the criteria for
That said, the Board had some
interesting insights into the state of the law of random drug and
alcohol testing following Irving Pulp.
Pulp has been used by unions to argue that employers
are prohibited from implementing drug and alcohol testing programs
in all but the clearest of circumstances. Indeed, that is
explicitly what the union argued in this case.
The Board disagreed.
The Board determined that
the Irving Pulp case dealt primarily
with the degree of scrutiny to which the arbitrator's decision
was subject. In effect, this meant that the arbitrator's
initial decision, that the random drug testing program involved
in Irving Pulp did not meet the
requirements of the collective agreement, was within the range of
what a reasonable arbitrator would find, and did not even represent
the Court's opinion as to whether it was the correct
The Board rejected the Union's
position that the Supreme Court in Irving
Pulp was giving direction on the appropriate legal
factors to consider in assessing a random testing policy. Instead,
the Board held that the Court's opinion could be interpreted
only as saying that, on the particular facts of the Irving Pulp
case, the arbitrator`s finding was reasonable.
What employers should know
Pulp was interpreted in Alberta in a recent case as
standing for the proposition that only in the most clear and
unambiguous of circumstances can a unilaterally imposed random drug
and alcohol testing program be upheld. The decision of the Board in
Teck Coal indicates that this interpretation of is not universally
accepted and may overstate the breadth of the Supreme Court's
Teck Coal is only an interim
decision, and the Board only had jurisdiction to review a limited
aspect of the arbitrator's award. That being said, this case
shows that Irving Pulp may not be the
curtain call for random drug and alcohol testing programs that
unions have heralded it as being.
Employers must still be diligent
about creating a strong factual case to demonstrate that random
drug and alcohol testing is justified in their workplace, and even
then will face significant opposition from unions and skepticism
from arbitrators. The arbitral jurisprudence on such programs does
not favor their continued implementation.
However, the decision of the
British Columbia Labour Relations Board in this case shows that the
Court's edict in Irving Pulp is
perhaps not as restrictive as early case law suggests.
This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
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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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