Canadian Safety Reporter

©2016 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safetyreporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel (on leave) Associate Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. Smith Assistant Editor Mallory Hendry (on leave) Assistant Editor Anastasiya Jogal Contributing Editors Liz Foster Sabrina Nanji Liz Bernier Marketing & Audience Development Manager Robert Symes mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Credible explanation for cause of accident CSR | March 2016 | News had been caused by outside fac- tors and Degg's omission was a contributing factor. Since alco- hol or drugs couldn't be ruled out, the foreman ordered Degg to take a test. Worker refused to take test Degg refused to take the test, as he had been advised to do by the union business manager. He was then escorted off-site by the foreman but not driven home. Degg claimed he was told he was being terminated, but the com- pany said he was suspended until he agreed to a test. The compa- ny sent a letter to the union the next day confirming that Degg wouldn't be eligible to work un- til he was assessed by substance abuse expert and took a test. The union filed a grievance on Degg's behalf, claiming the circumstances didn't warrant a violation of Degg's privacy rights and the collective agreement. The arbitrator found it was understandable that Degg thought he was being dismissed for not complying with the poli- cy, as the original policy in 2008 when he was hired permanently said as much. In 2011, the policy was amended to allow for a sus- pension and give the employee another chance to comply. How- ever, this change didn't adversely impact employees even if they didn't know about it as Degg ap- parently didn't, said the arbitra- tor. The arbitrator found that getting information from the employee by the least intrusive means was preferable, but sim- ply asking Degg if he had con- sumed drugs or alcohol wouldn't have changed the process under the policy — a test would still be required. In addition, simple ob- servations by witnesses wouldn't be enough to eliminate the need for a test. Employers need such information to ensure a safe workplace, said the arbitrator. "Post-incident testing is based on the incident itself; in a safety sensitive environment, knowing that physical observation of im- pairment is unreliable, and that an employee may be impaired yet show no sign of it, the occur- rence of a significant accident or near-miss, which appears to be the result of the employee's carelessness or wilfulness, leads an employer reasonably to want to know whether the employee's act was merely the result of an error in judgment or whether it was the result of being impaired, of being partially disabled from something consumed, whether medical or intoxicant," said the arbitrator. However, while the company's policy for testing was appropri- ate and should be followed in the wake of a workplace incident, the arbitrator found the policy didn't need to be followed in this case, due to the fact the accident was minor enough that it didn't meet the definition of "incident" under the alcohol and drug pol- icy. In addition, jurisprudence has indicated that post-incident testing must be justified by "some substance, some materi- ality, to the harm caused" — or a near-miss with significant po- tential harm. The arbitrator found that the damage to the parked vehicle was minimal, and if the truck Degg was driving didn't have a trailer hitch, there might not have been any damage at all. Degg explained how the acci- dent happened, and this was suf- ficient opportunity to exclude the possible influence for drugs or alcohol on Degg's actions, said the arbitrator. The policy itself stipulated testing should only be implemented if there was no credible explanation for the employee's behaviour in the incident. In this case, there was a credible explanation and no rea- son to suspect drugs or alcohol, particularly since Degg had no history of drug or alcohol abuse or any disciplinary record during his relatively long tenure. "This was not a significant accident; it was minor," said the arbitrator. "It did not reach the threshold required to put an in- dividual employee through the intrusive experience of drug and alcohol testing." For more information see: • Jacobs Industrial and IBEW, Local 353 (Degg), Re, 2016 Car- swellOnt 119 (Ont. Arb.). Post-incident testing < pg. 3 Post-incident testing must be justified by some substance to the harm caused or significant potential harm WEBINARS Interested in learning more about safety and HR issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as building strong safety leadership, engaging managers and supervisors to ensure OHS compliance, and building a better joint health and safety committee. Visit www.cpdcentre.ca/cos for more information.

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