by Kelsey Orth
From the beginning, employers and unions have been on opposite sides of the debate over drug and alcohol testing in the workplace: employers place an emphasis on safety, while unions prioritize the privacy rights of their members. While we have seen various developments across all sectors and industries, this issue seems to come to the fore most often in the energy sector – safety being of paramount importance in the oil industry- and as such, there have been several notable clashes that have made their way through various levels of adjudication.
The latest iteration comes in the form of a decision from the Alberta Court of Appeal in Suncor Energy Inc. and Unifor Local 707A
. In 2012, Suncor implemented random drug and alcohol testing for workers in safety-sensitive positions at various sites in northern Alberta, which Unifor grieved as being an infringement on the workers’ privacy. Unifor was successful at arbitration, but Suncor applied for judicial review, where the reviewing justice held that the arbitration decision was unreasonable. Although the judicial review decision simply remitted the matter to a new arbitration panel for reconsideration, Unifor appealed to the Court of Appeal.
At the arbitration, Suncor presented evidence of a widespread problem with substance abuse at the relevant jobsites – a prerequisite to justifying alcohol and drug testing. However, the arbitration panel rejected Suncor’s argument, finding that the evidence was not specific to the particular group of employees in question. In the arbitration panel’s view, presenting evidence of a problem among all employees (including contractors’ employees) was not adequate to justify the infringement on the (presumed) privacy rights of the employees. Moreover, the arbitration panel refused to even consider evidence not related directly to the bargaining unit.
In conducting his judicial review, Justice Nixon, found that the arbitration panel had improperly focused on the lack of direct connection between Suncor’s evidence, stating:
“[w]hile it is true that the arbitration decision is binding only upon members of the bargaining unit, it does not follow that the Board could take account only of evidence tied directly to that bargaining unit”
The Court of Appeal expanded on that in its dismissal of Unifor’s appeal:
It was reasonable for the tribunal to conclude that Suncor’s desire to expand random drug and alcohol testing to contractor employees should not influence how the tribunal balances unionized employees’ privacy against worksite safety. But the majority went further, and unreasonably concluded that these “jurisdictional” considerations required the tribunal to blind itself to logically relevant evidence.
Although the matter is going back for fresh adjudication, in referencing “logically relevant evidence” Alberta’s Court of Appeal has given some hope to employers – particularly those with significant safety issues in their workplaces. Employers have long been advocating for the practical benefits of random drug and alcohol testing in such high-stakes environments – not that they are seeking to punish or persecute employees, but simply curb dangerous behaviour in the workplace – and we can hope that this approach will be taken by more adjudicators as this issue continues to evolve. In the interim, before implementing or acting on policies, contact our team
for assistance in navigating the tricky landscape of workplace drug and alcohol testing.