B.C. Arbitrator Provides Perspective on Random Drug and Alcohol Testing Policies23-May-13
May 23, 2013
By Steven Dollansky
A British Columbia arbitrator has denied an application by the United Steelworkers for an interim injunction that would prohibit Teck Coal from performing random drug and alcohol tests at several coal mines until the union’s grievance of that policy could be addressed. The decision provides another perspective in the rapidly evolving jurisprudence on random drug and alcohol testing in Canada.
As in previous decisions, the arbitrator assessed the risks to employee safety along with the potential infringement on employee privacy. The arbitrator concluded that the employer’s interest in protecting employees should be paramount as a failure to do so would result in the greatest degree of irreparable harm.
This case is notable because it considers the Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. decision by the Alberta Court of Appeal, which remains the only decision to ever uphold an interim injunction with respect to random testing.
In response to the Court of Appeal’s concern with the lack of evidence to support the position that random drug and alcohol testing will prevent industrial accidents in the Suncor case, Teck Coal presented substantial evidence on that point. The arbitrator concluded that, in light of this evidence, the concerns expressed by the majority of the Court of Appeal in Suncor had been largely addressed and a different conclusion was reached despite the factual similarities.
Although this decision is not binding in Alberta it offers valuable insight into how courts and arbitrators may interpret the Suncor decision. It also provides additional consideration of the validity of random drug and alcohol testing at safety-sensitive workplaces as we await the Supreme Court of Canada’s decision in Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers of Canada , Local 30. This decision is widely expected to provide guidance on how courts should treat random substance testing in the workplace.
Employers seeking to implement policies of this nature should be carefully monitoring the ongoing developments in this area of law.