In a much-anticipated decision about random alcohol testing in hazardous unionized workplaces, a majority of the Supreme Court of Canada decided that Irving Pulp & Paper Ltd.’s unilateral implementation of random alcohol testing for employees in safety-sensitive positions was an invalid exercise of management rights.  For a link to the decision click here.

Facts

Irving Pulp & Paper operates a paper mill in New Brunswick by a major water body.  The mill is an indisputably hazardous workplace. An accident could cause catastrophic harm to employees, the public and the environment.  Irving imposed, without Union consent, a workplace policy that included mandatory random alcohol testing by Breathalyzer for paper mill employees holding safety-sensitive positions. The union filed a policy grievance challenging the policy.

The arbitration board weighed the employer’s interest in requiring random alcohol testing as a workplace safety measure against the harm to employees’ privacy interests.  In the arbitration board’s view, Irving failed to establish a sufficient risk of harm that outweighed employees’ right to privacy. Although Irving presented evidence of incidents of employee intoxication or alcohol consumption at the mill, the board found that the evidence failed to show “any significant degree of incremental safety risk attributable to employee alcohol use” in the workplace.  On the other hand, the board held, Breathalyzer testing calls for “a bodily intrusion and the surrender of bodily substances”, and involves “coercion and restriction on movement”.  Using a balancing test, the board found that random alcohol testing was not justified.

On judicial review, the New Brunswick Court of Queen’s Bench over ruled the arbitration decision.  The Court found that it was unreasonable for the board to require evidence that alcohol abuse was a problem in the workplace, since the board had earlier found that the paper mill was a “dangerous workplace”.

The New Brunswick Court of Appeal disagreed with the use of the reasonableness standard of review and instead applied a correctness standard. Saying that once a work environment is classified as “inherently dangerous”, employers can unilaterally impose random alcohol testing without having to show reasonable cause such as evidence of an existing problem with alcohol use at work.

The Decision

While the issues raised by workplace drug and alcohol testing are often viewed through the lens of health and safety, privacy and human rights law, the Supreme Court of Canada’s decision is more grounded in traditional labour relations and administrative law analysis.

The issue in this case, as framed by the Court, was whether Irving’s implementation of random alcohol testing for employees in safety-sensitive positions was a valid exercise of Irving’s management rights under the collective agreement.  The Court applied the time-honoured “KVP test”, which holds that a rule or policy with disciplinary consequences unilaterally imposed by an employer must not only be consistent with the collective agreement, but must also be reasonable.

The fact that a workplace is dangerous, the arbitrator held, did not automatically entitle the employer to unilaterally impose random alcohol testing; the employer must also show evidence of a problem with alcohol in the particular workplace.  In the view of the majority of the Court, this conclusion was within the range of reasonable outcomes and therefore could stand.

Three dissenting members of the Court would have quashed the arbitration board’s decision.  They agreed that an employer may be required to show evidence of a workplace problem to justify random testing, even in a safety sensitive workplace, but found that the board’s decision was unreasonable.  Instead of requiring some evidence of “a” workplace problem, as was the previous test, the board unreasonably imposed a higher evidentiary threshold by requiring evidence of a “significant” or “serious” problem.

The appropriate standard of review – whether the board’s decision had to be merely incorrect or downright unreasonable in order to be set aside – seems key to the Court’s decision.  The majority and dissenting members agreed that the legal issue at the heart of the case – the interpretation of a collective agreement’s management rights clause – is an issue entrusted by the legislature to labour arbitrators.  An arbitrator board is allowed to be wrong in this area, as long as its decision falls within the range of reasonable results.  While three members of the Court found that the decision failed even on this deferential test, the majority was satisfied that the decision was reasonable.

What This Means for Employers
 


The immediate “takeaway” for employers is that a unilaterally imposed policy of mandatory, random and unannounced testing for safety-sensitive employees in a unionized, hazardous workplace will require reasonable cause.  Reasonable cause can be established through evidence of problems with alcohol abuse in the workplace.  Neither set of reasons rules out the possibility that, in an appropriate case, an arbitrator could properly find that testing is justified in a particular workplace even in the absence of a demonstrated problem with alcohol use.  The Court therefore leaves open the possibility that reasonable cause for random testing may be established by factors other than evidence of a problem in the workplace, such as proof that random testing has a deterrent effect. Getting the “proof” is something the Drug and Alcohol Risk Reduction Pilot Project is working on in Alberta’s Oil Sands.

Further, while a surface reading may suggest that the majority decision requires proof of a “significant” problem in a safety-sensitive workplace, the majority’s conclusion that the arbitrator’s decision was reasonable does not necessarily mean that such proof will be required in every case.  Moreover, the majority’s analysis is driven by an application of the traditional KVP test as it applies to employer policies with disciplinary consequences.  An alcohol or drug testing policy that provides for rehabilitative rather than disciplinary consequences where an employee is suffering from a legitimate disability may require a different analysis. We believe that would be a reasonable approach.

At the end of the day, the legality of random testing continues to depend on the circumstances of the particular case.  In Irving, the arbitration board found on the evidence before it that the expected safety gains to the employer ranged “from uncertain …. to minimal at best”, while the impact on employee privacy was much more severe.  Given those evidentiary findings, to which courts must show deference, six of the nine judges on the Supreme Court of Canada panel accepted the board’s decision as reasonable.

But as the majority held at paragraph 52, “This is not to say that an employer can never impose random testing in a dangerous workplace.  If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.”

This article was prepared by Ontario Labour and Employment Group members: Margaret Gavins and Andrew Carricato with valuable input from Loretta Bouwmeester from Alberta, and Jeremy Warning. For questions or further guidance, inquiries can be made with any of them or any member of the National Labour and Employment Group.