The arbitrator had noted the existence of extensive and
substantial evidence to support the employer's case that
testing led to a reduction of safety risk from a preventative
standpoint. He had concluded that the risk of industrial accident
carried greater potential for irreparable harm than the harm to
employee privacy interests caused by continuation of drug and
alcohol testing pending the hearing and decision. The Board held
that the arbitrator had not erred in reaching that conclusion nor
had he erred in distinguishing other arbitral cases on the facts.
The arbitrator had given detailed and careful consideration to the
union's position. He had provided a sufficiently reasoned
analysis for his decision not to grant the union's application
for an interim stay and there was no nothing to justify
intervention by the Board.
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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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