Canadian Lawyer InHouse

By Malcolm MacKillop and Hendrik Nieuwland SCC provides clarity on drug and alcohol tests Potentially dangerous environments no excuse for testing. W e last spoke on the issue of random drug and alcohol testing in the workplace in the December 2011 edition of this magazine. At that time there was some uncertainty in the case law about when random testing could be used. This is no longer the case. The Supreme Court of Canada has provided some welcome clarity on random testing in the case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. In Irving, the grievor was subjected to a random alcohol test (done by a breathalyzer) while working at a paper mill, pursuant to new management policy. The policy dictated 10 per cent of employees in safety-sensitive positions were to be randomly tested over the course of a year. Failing the test, or refusing to submit to the test, were grounds for dismissal. It was clear the operations of the mill presented a dangerous and hazardous workplace with great potential risks to employees, the public, property, and the environment. Nevertheless, there were no documented accidents, injuries, or near misses in the 15 year period preceding introduction of the policy, and only eight documented cases of alcohol consumption or impairment in the same period. Further, no employee had tested positive when the arbitration was heard 22 months after implementation of the policy. As discussed in our earlier article, a drug or alcohol testing policy needs to be reasonable before a company can introduce it into the workplace. Reasonableness depends on whether the employer can show "just cause" for introducing such a policy. Just cause depends on the facts of each case. Breathalyzer tests in the wake of workplace accidents, "near misses," or as part of rehabilitation programs are examples where just cause is often proven. Some have recently argued that working in an unsafe environment or in a safety-sensitive position automatically provides an employer with just cause to introduce random drug or alcohol testing. The Supreme Court has made it clear this is not the case. Indeed, in Irving the Supreme Court majority noted it could not find a single case where random drug or alcohol testing was justified Airports Authority v. Public Service Alliance of Canada, Local 0004, [2004] C.L.A.D. No. 243 (Devlin), employer and union witnesses testifying about multiple occasions of drinking at an airport was evidence of a "pervasive problem" that warranted random alcohol testing. By following these two arbitral decisions, the majority of the Supreme Court confirmed there must be clear evidence of a recent workplace drug or alcohol problem to prove an employer has "just cause" to implement random testing, even in an inherently dangerous workplace. In Irving, the Supreme Court decided that eight occasions of alcohol consumption in 15 years at the mill did not provide the employer with just cause for implementing the random testing policy. Reasonableness depends on whether the employer can show 'just cause' for introducing such a policy. simply due to the hazardous nature of the workplace. However, the Supreme Court majority did identify two cases where arbitrators had upheld the use of random testing policies in dangerous workplaces. In those cases (unlike in Irving) the decision to implement random testing was not based solely on the hazardous nature of the workplace, but on demonstrated substance abuse problems in the workplace. In Communications, Energy and Paperworkers Union, Local 777 v. Imperial Oil Ltd., a survey that reported on alcohol-related incidents and near misses in an oil refinery was a "rational and sufficient foundation for the random testing Policy." Similarly, in Greater Toronto What in-house counsel should take away from Irving is that the dangerousness of a workplace "has never been found to be automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences." Something much more is needed. Unless there is evidence that meets the threshold of just cause, such as a general problem of substance abuse in the workplace, there is a great risk that random drug or alcohol testing policies will be struck down by decision-makers. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E october 2013 • 15

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