Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2016 News | March 2016 | CSR Post-incident testing for serious incidents only Employer had right to order employee to take post-incident drug and alcohol tests — but not for a minor incident where drug and alcohol use can be easily ruled out BY JEFFREY R. SMITH AN ONTARIO EMPLOYER'S drug and alcohol testing policy is good, but the employer didn't correctly apply it when ordering a worker to be tested following a workplace incident, an arbitra- tor has ruled. George Degg, 69, was an elec- trician with Jacobs Industrial, a Toronto-based industrial engi- neering firm. Degg worked on- and-off for Jacobs since 1997 and was hired full-time in 2008. Oth- er than once being cautioned to use his earplugs, he had never been disciplined during his ten- ure with Jacobs and was co-chair of the company's joint health and safety committee for a time. He was also a steward. Jacobs was the maintenance contractor at a Suncor lubricants refinery in Mississauga, Ont., which was a highly safety sensi- tive site with pressured materi- als and poisonous gases. There were also risks of explosions, electric shocks, and releases of hot steam and toxic substances that could cause burns. As a result of its safety sensitive op- erations, Jacobs had a drug and alcohol policy that required post-incident testing if external factors were eliminated as a pos- sible cause of the incident. The policy defined an incident as "an occurrence, circumstance or condition that caused or had the potential of causing damage to person, property, reputation, security or the environment." It also stipulated that employ- ees who refused to participate in investigations and submit to alcohol and drug testing would be subject to discipline, up to and including termination of employment. However, testing could not be required automati- cally; it would be required only following an investigation to determine if alcohol or drug use couldn't be ruled out as a cause of the incident. If it was clear drugs or alcohol weren't a factor, supervisors could waive testing under the policy. Degg's job was specified under the policy as a safety sensitive position "in which incapacity due to drug or alcohol impair- ment could result in direct or significant risk or injury to the employee, others or the envi- ronment." He had been trained on the policy and had signed acknowledgment of it when re- hired in 2008. In addition, as a steward he was responsible for the orientation of new electri- cians onsite and went through the company policies with them. As a result, he was very familiar with Jacobs' policies, including the drug and alcohol policy. When the company imple- mented the policy, the union's business agent felt it couldn't require testing of its employees at all, based on the Ontario gov- ernment's failure to specifically address it. He advised union members, including Degg, that they didn't have to comply with the testing and the union would grieve any discipline for refusals. Degg also informed new electri- cians of the union's position dur- ing orientation. Fender bender in parking lot On May 30, 2012, Degg was driv- ing a Suncor pickup truck to the Jacobs onsite office to see his general foreman. The office was in a trailer on the Suncor site. Degg was wearing a hard hat, safety glasses and ear plugs, the safety equipment required for the site. Reverse parking was man- datory on the Suncor site, so Degg drove the truck in a large sweeping arc in the parking lot so he could see everything, be- fore reversing into a spot. How- ever, instead of backing into an empty spot, he hit another ve- hicle parked by the trailer office which he hadn't seen. He didn't turn around to look directly back because he had a herniated disk and could only turn around if he took off his seatbelt — which he didn't want to do since he didn't want to drive without the seat- belt on. Two other workers were standing in the parking lot as Degg arrived and observed him circle around the lot. They saw him briefly stop, adjust his mir- rors, and reverse into the parked car. Degg didn't ask them to as- sist him, and one of the workers claimed they didn't have time to offer any help before he started to reverse. One of the workers tried to get Degg's attention by waving to warn him, but Degg didn't see him and his windows were closed. The trailer hitch of the pickup truck hit the parked vehicle and caused minor damage. Degg asked the other workers why they didn't spot him, and one of them asked "Are you kidding?" since they felt he hadn't given them the opportunity to do so. Jacobs policy for reversing to park required any employee alone in a vehicle to ask anyone nearby to spot. In addition, any employee standing in a parking lot where a vehicle was backing up was obliged to offer assis- tance. Degg asked if anyone was in the trailer, to which they replied that the site superintendent was. Degg looked for the general fore- man and claimed not to have seen the site superintendent, so he left in the truck to remove a lock on a transformer that he needed to take care of before the end of his shift. The other work- ers found the superintendent in the trailer and reported the ac- cident. The superintendent radi- oed the general foreman to find Degg and bring him back to the trailer, which the foreman did. Degg explained that he didn't see the vehicle he had backed into and didn't ask for a spot. He also said he left the scene to find the foreman. No one at the time noticed anything in Degg's behaviour or appearance to sug- gest impairment. The superin- tendent completed a checklist that Jacobs had for management following an incident that was used to identify causes and what corrective action was needed. One of the primary determina- tions was whether the incident Credit: Shutterstock Credible > pg. 8

• Cover