This article focuses on the Alberta Court of Appeal's recent decision in Suncor Energy Inc. v. Unifor, Local 707A, 2017 ABCA 313. The Court unanimously upheld a judicial review decision rejecting the majority decision of an arbitration panel which had found Suncor Energy Inc.'s random drug and alcohol testing policy to be unenforceable. The appeal decision focused on the fact that limited evidence was considered at arbitration and evidence of substance abuse issues in the workplace outside the bargaining unit was not considered.
The facts of the grievance and its treatment at arbitration and before the lower court were as follows.
In 2012, Suncor implemented random drug and alcohol testing for workers holding safety-sensitive positions at some of its work sites in Fort McMurray. Unifor, Local 707A grieved the policy on the basis that it infringed the privacy rights of workers. The focus of the grievance was on whether the random drug and alcohol testing was an appropriate part of safety procedures at the employer as both parties recognized that proper safety procedures were required.
At arbitration, the majority ruled in favour of the Union, holding that Suncor did not demonstrate sufficient safety concerns within the bargaining unit to justify random testing. The dissent found that there was significant evidence of workplace safety issues, including substance abuse issues, and would have enforced Suncor's testing policy.
On judicial review, in the decision of Suncor Energy Inc. v. Unifor, Local 707A, 2016 ABQB 269, the Alberta Court of Queen's Bench quashed the majority's decision and remitted the matter to arbitration, finding that the majority could have considered evidence of workplace substance abuse issues outside the bargaining unit. The decision was appealed.
The Court of Appeal considered whether the majority of the arbitration panel was unreasonable in choosing to disregard evidence of substance abuse problems in the broader workplace – i.e. beyond just unionized employees. The Court agreed with the reviewing judge below that the decision of the majority was unreasonable, relying on 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 Court reviewed Madam Justice Abella's formulation of the test for imposition of random drug or alcohol testing on unionized employees, holding that the test is defined in terms of whether there are special safety risks in a workplace and considers in particular evidence of a general problem of substance abuse within a workplace.
The Court clarified that the Irving test sets out a balancing test to be applied with respect to safety and substance abuse problems in the workplace in general rather than safety and substance abuse problems in the bargaining unit. The test calls for a more "holistic" inquiry into such problems in the workplace instead of requiring evidence unique to workers who will be directly affected by the arbitration decision.
The Court found that in justifying its policy, Suncor could properly have relied on evidence of substance abuse in the workplace generally rather than just within the bargaining unit.
The Court did acknowledge that there may be some workplaces where it would be reasonable to distinguish between evidence of substance abuse by unionized and non-unionized employees. However, the nature of the workplace in this case was one where the workforce was strongly integrated between unionized employees, non-unionized employees and contractors. There was no reason to draw an arbitrary distinction between the workers in this case.
Takeaways for Employers
The Court of Appeal's decision helps to clarify the law with respect to how an employer can justify a random drug and alcohol testing policy in a safety-sensitive environment. The analysis will likely include a review of evidence of overall workplace drug and alcohol issues, allowing an employer to introduce evidence with respect to such issues even outside the bargaining unit or employee group to which the policy applies. This case gives an employer the flexibility to rely on a wider array of evidence to justify its imposition of a random drug and alcohol policy. It clarifies that the Irving test will be applied on a generalized rather than specific basis, at least in workplaces that are integrated between unionized and non-unionized employees.
Previously printed in the LexisNexis Labour Notes Newsletter.
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