No splitting hairs in determining extent of workplace substance abuse

Appeal court says unionized, non-unionized and contracted workers all part of the workplace

BY Adelle Chua 19 Oct. 2017

When it comes to substance abuse, it’s difficult for employers to balance their duty of care to ensure workplace safety and the privacy of employees.

In 2013 the Supreme Court of Canada said employees in safety-sensitive positions may be subjected to random drug and alcohol testing, but only after a general substance abuse problem in the workplace is established.

But what constitutes “general substance abuse problem?” Should the entire industry, company, worksite be considered? Should both union and non-union workers be counted?

A recent decision by the Alberta Court of Appeal said it should not matter whether employees in a particular workplace are members of the union, not members of the union, or contractor workers. They work side by side in integrated workforces, after all.

In Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313, the court found that the arbitration panel’s focus on evidence of substance abuse among unionized workers only, rather than in the workplace generally, was an unjust error, Jordan Arthur Kirkness and Susan MacMillan wrote on Lexology.

The facts:

Suncor’s 24-hour facilities in the Athabasca oil sands employ both union and non-union workers. Some onsite work is also done by workers employed by contractors.
Employees typically work 12-hour shifts and use complex mining and industrial equipment.
It was evident, as the company and the union agreed, that safety protocols were critical to preventing workplace accidents that could result in human or environmental disaster.
Suncor introduced random drug and alcohol testing in 2012. The random testing applied to all employees in safety-sensitive positions and to on-site management, including the CEO.
Prior to this, the company had relied on less intrusive measures such as extensive training, education, employee treatment programs, and post-incident testing.

The issue:

The union objected to the implementation of random drug testing and questioned the premise that substance abuse was a pervasive problem in the bargaining unit.
It filed a case for arbitration, after which the case was heard by an arbitration board.
Most of the members of the board agreed with the union. They said Suncor had provided insufficient evidence to demonstrate safety concerns within the bargaining unit that would justify random testing.
The case was brought to the Court of Queen’s Bench.

The decision:

The justice found that the arbitration panel applied stricter requirements on Suncor than required at law when balancing safety and privacy concerns.
The panel erred in considering evidence of substance abuse within the bargaining unit only.
The arbitration decision was unreasonable and the case was sent back for further hearing.
When the case was brought to the Court of Appeal, it upheld the lower court’s finding that:
- The arbitration board erred in rejecting Suncor’s evidence of safety incidents and risks.
- The panel’s basis for rejecting this was that it was related to non-union employees or not particularized to bargaining unit employees.
- A new arbitration board should determine whether the employer should be allowed to randomly test its unionized workers.

Future decisions, including the hearing in the Suncor case, should provide more clarity for employers seeking to institute similar policies in safety-sensitive workplaces, according to Baker McKenzie’s Jordan Arthur Kirkness and Susan Macmillan in the Lexology web site.

“In the meantime, employers contemplating random testing should proceed with caution,” they said.

Related stories:
Requirements for random drug testing confirmed
Substance use “an emerging concern”