• The arbitration board ("the board")
allowed the grievance saying an employer must establish "reasonable
cause".
• The employer successfully sought judicial review at the Court of Queen's
Bench that set aside the board's decision saying once it found the workplace "dangerous", the only issue was
whether the policy was proportionate
to the potential danger.
• The union's appeal to the Court of
Appeal was rejected with the court
saying "[e]vidence of an existing alcohol problem in the workplace is
unnecessary once the employer's
work environment is classified as inherently dangerous".
what did the court say?
The Court said before implementing a random alcohol
testing policy an employer must establish "reasonable
cause". It noted that arbitral jurisprudence has only accepted random alcohol testing where there has been a
substance abuse problem in the workplace and where
the employer has exhausted alternative means for dealing with it.
The Court said the mill had not identified dangerousness or increased safety concerns to justify random testing for alcohol. The Court did not provide any guidance
on what would factually support a finding of "reasonable cause".
Although the Court said "an employer would be
justifiably pessimistic" in thinking that a unilaterally imposed random alcohol testing policy absent reasonable
cause would survive arbitral scrutiny, it did not completely close the window on testing saying employers
can unilaterally introduce alcohol testing policies in the
unionized workplace that address
(1) Reasonable cause — permissible when there is reasonable cause to believe an employee is impaired at work.
(2) Post-incident — permissible when an employee is
involved in a significant workplace accident, incident
or near-miss.
(3) Post-treatment — random and unannounced alcohol
testing of employees returning to work after treatment for substance abuse, is permissible when administered on terms negotiated with the union.
Employers should review their policies for compliance with the Court's decision. To ensure enforceability,
employers operating in a dangerous workplace will want
to consider negotiating policies with the union.
Where that is impossible, employers should document all incidents of alcohol use in the workplace, all
workplace accidents and near-misses, any circumstances
demonstrating increased safety concerns that could justify random testing and any less intrusive measures that
have been taken, short of testing, to address the concerns
in light of employee privacy interests.
Mark Tector, partner
Halifax, NS
902.420.3358
mtector@stewartmckelvey.com
Steve Carpenter, CHRP, partner
Charlottetown, PE
902.629.4556
scarpenter@stewartmckelvey.com
Melissa Everett Withers, associate
Fredericton, NB
506.443.0131
meverettwithers@stewartmckelvey.com
Ruth Trask, associate
St. John's, NL
709.570.8893
rtrask@stewartmckelvey.com
Doing Business in Atlantic Canada FALL 2013
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