In the recent case of Suncor Energy Inc. v. Unifor,
Local 707A, 2016 ABQB 269, the Alberta Court of Queen's
Bench confirmed and clarified the test that an employer must meet
in order to justify the unilateral imposition of random drug and
alcohol testing in a unionized workplace. Specifically, the Court
confirmed that: (a) an employer has to demonstrate a "general
problem" with alcohol and drugs in the workplace, but that
problem need not necessarily be "serious" or
"significant"; (b) the employer need not demonstrate a
threshold causal connection between a drug and alcohol problem and
accident history; and (c) evidence of a problem can come from the
entire workplace and not just from the bargaining unit.
Briefly, the facts of this case were as follows. Suncor Energy
operates two oil sands facilities in Alberta. At times, these
facilities have nearly 10,000 workers, approximately 34 percent of
which are Unifor bargaining unit members. Unifor and Suncor agreed
that the oil sands operations are dangerous workplaces. Suncor
introduced a random drug and alcohol testing policy for employees
in safety-sensitive roles in order to deal with what it said was a
widespread drug and alcohol problem at its facilities. Unifor
grieved the random testing policy.
At arbitration, the majority of the three-member panel found
that the random testing policy was unreasonable. The majority
relied on its interpretation of the Supreme Court of Canada's
decision in Communications, Energy and Paperworkers Union of
Canada, Local 30 v. Irving Pulp & Paper Ltd.,
2013 SCC 34 ("Irving"). The majority cited
Irving for the proposition that the employer needed to
demonstrate a "significant" or "serious" drug
and alcohol problem with a causal link to accident history at the
workplace, and that the employer needed to present evidence of that
problem which specifically related to the bargaining unit. The
majority found that Suncor had failed to meet these requirements.
Suncor appealed to the Alberta Court of Queen's Bench.
The Court quashed the majority's decision and remitted the
matter to arbitration on the basis that the majority misapprehended
and misapplied the Irving test. The Court noted that a
dangerous workplace does not in and of itself justify random
testing and a balancing of privacy and safety interests on a
case-by-case basis is required. In the view of the Court, the
majority had imposed more stringent requirements than what is
necessary. In addition, the Court noted that the majority failed to
take into account the fact that the workplace was integrated
between union, non-union and contractor workers and erred in
requiring evidence specific to the bargaining unit. The Court found
that the extensive evidence in relation to the entire workplace
which Suncor adduced should have been considered by the arbitration
This is a helpful decision to clarify the Irving test,
which some arbitrators have been interpreting to require a very
prevalent drug or alcohol problem. The decision also confirms that
arbitrators should use a practical and common-sense approach in
considering evidence in relation to the entire integrated workplace
rather than just the bargaining unit.
Takeaways for Employers
Whether random drug or alcohol testing is justifiable in a
safety-sensitive workplace is assessed on a case-by-case basis.
This sort of testing is not automatically acceptable.
An employer must at a minimum adduce evidence of a general
problem with alcohol and drugs in the workplace, but the problem
does not necessarily have to be "serious",
"significant" or "egregious".
There is no requirement to adduce evidence of the problem
specifically in relation to the bargaining unit. Evidence from the
entire workplace is relevant and helpful. This is a common-sense
approach in modern industrial workplaces where union, non-union and
contractor workers work, and sometimes live, side by side.
There is no requirement to demonstrate a causal connection
between a drug and alcohol problem and accident or near-miss
history at the workplace. This is, however, certainly helpful in
demonstrating a problem.
Previously printed in the LexisNexis Labour Notes
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).