Alberta worker's privacy breached when management followed checklist after low-risk incident
An incident in which a fire extinguisher fell out of the back seat of a truck while unloading and was damage did not meet the threshold for requiring a worker to take a drug and alcohol test, an Alberta arbitrator has ruled.
Fort McKay Logistics (FML) is an integrated supply chain service provider in Edmonton. It hired the worker in August 2019 and provided her with a copy of its policies. The worker signed a form acknowledging that she had read and understood the policies.
One of FML’s policies was an alcohol and drug policy that was modelled on the Canadian Model for Providing a Safe Workplace. The policy stated that employees or volunteers would be required to undergo drug and alcohol testing if they were involved in an incident that caused an injury requiring medical treatment, a motor vehicle collision, equipment damage beyond wear and tear, damage to the environment requiring regulatory reporting, or a “near miss” that could have resulted in injury or significant damage.
The policy also stated that it was a “zero tolerance” policy and any employees breaching it would be disciplined or terminated.
On Sept. 7, 2021, the worker was driving a company pickup truck to pick up cargo and return it to a warehouse. The cargo, which included a new fire extinguisher in a cardboard box, was in the back seat.
Fire extinguisher damaged
When the worker arrived at the warehouse, she unloaded the cargo and carried it to a cart on the other side of the truck. As she did so, she heard a hissing sound and found that the fire extinguisher had fallen out of the truck and a dry chemical component was leaking out of the box. The extinguisher was damages and the truck had to be cleaned.
The worker tried to report the incident to her immediate supervisor, but she wasn’t available so the worker told the lead hand. He told her to remain at the site and that she would be tested.
The worker filled out an incident form and said that such incidents could be avoided in the future “by putting all parts in the dump of the truck.”
FML’s environmental advisor completed a post-incident form indicating that there were no injuries and there was only “material” damage. He added that the potential risk was of minor consequences and the level of risk was low, with the root cause of the incident being a “failure to properly secure material while transporting.”
The worker had not received any training or guidance on the storage of material for transport.
Post-incident checklist
The lead hand went through a post-incident checklist under the drug and alcohol policy and recommended testing. There was no indication of impairment, but the lead hand did not refer to a step that offered an alternative of no test required and instead referred to a step that recommended testing.
The lead hand accompanied the worker to a testing facility and her point-of-collection urine test was negative for marijuana, so she was cleared to return to work. However, a lab test – the second part of the two-step testing process with different screening limits – was positive for marijuana.
The worker acknowledged to a lab employee that she used marijuana, but she hadn’t used any for three months so the test must be wrong. She was told that she had a right to request a reanalysis, but she declined.
The worker told her supervisor that the test had to be wrong, but the supervisor suggested that she get retested. FML terminated her employment on Sept. 17 for violating the drug and alcohol policy.
Subsequent negative test
The worker was tested again at a different facility at her own expense on Sept. 20, and the results were negative. She then grieved her termination as unjust.
The arbitrator noted that the drug and alcohol policy was adopted under FML’s management rights and had not been challenged by the union. However, this did not preclude an analysis of the policy’s reasonableness, the arbitrator said.
The arbitrator also noted that it had been established in the jurisprudence that employers must “pursue a reasonable line of inquiry” before requiring drug testing and an incident must be a “significant event” to justify post-incident testing. FML’s policy – and the Canadian Model upon which it was based – did not require the event to be significant except for potential damages in a near miss incident, said the arbitrator.
It had also been established that post-incident testing required the analysis of three elements – the threshold level of the incident, the degree of inquiry necessary before the decision is made, and the link between the incident and the employee’s situation.
Incident not serious
As for the first element, the arbitrator found that the incident was not serious enough to override the worker’s privacy interest and demand testing. The supervisors and managers agreed that it was a “minimum risk low impact incident.”
As for the second and third elements, there appeared to be no consideration of whether it justified infringing on the worker’s privacy rights. In addition, management completed the post-incident checklist in a way that “basically guaranteed the termination of this employee if she simply failed a drug test” and ignored any questions related to the circumstances, said the arbitrator.
“Most accidents happen because humans do not perform perfectly and there was an obvious reason for this incident which did not suggest and require ruling out of impairment,” said the arbitrator. “Simple carelessness in loading the truck by someone who had never received training in loading cargo resulting in a trivial incident does not justify testing.”
Although the worker had a positive test, the arbitrator found that the worker should never have been tested based on the elements that FML had to meet to require testing. FML breached the worker’s privacy rights in requiring the test, said the arbitrator in allowing the grievance and ordering the parties to determine a remedy.
See Fort Mckay Logistics LP and TC, Local 362 (Dawson), Re, 2022 CanLII 78227.