Recent ruling from the Supreme Court regarding alcohol testing in dangerous workplaces.

1. SCOC Rejects Random Alcohol
Testing in Workplaces
Kathryn Kissinger HR Services 2013

2. The October 2013 issue of the HR Professional
Magazine (hrpromag.com) has a cover article
reporting on the recent Supreme Court of Canada
(SCOC) ruling against Random Alcohol Testing
policies in dangerous workplaces.
The article is written by Kyla Stott-Jess and Katie
Clayton, and these authors raise some valid
concerns about the wide-reaching effect this ruling
may have.
Kathryn Kissinger HR Services 2013

3. The article cites the case of Communications, Energy and
Paperworkers Union of Canada, Local 30 v. Irving Pulp and
Paper Ltd, in which the Supreme Court considered the
validity of random alcohol testing in workplaces.
The SCOC recognized that while random testing may
be imposed where it is “a proportionate response” to
safety and privacy, six of the nine judges ruling on this
case agreed with the original arbitration board that
there was insufficient evidence of an alcohol-related
problem at this workplace.
Kathryn Kissinger HR Services 2013

4. Irving operates a paper mill in St. John, New Brunswick. At
issue is the fact that in 2006 the company adopted a random
testing policy for employees in “safety sensitive positions”.
The policy allowed for 10% of the employees to be
randomly tested by breathalyser over the course of a year.
Positive tests meant harsh discipline from the employer,
while failure to participate/refusal of testing would be
grounds for dismissal.
The policy was challenged by the Union due to breach of
privacy concerns and a lack of alcohol-related incidents at
the workplace.
Kathryn Kissinger HR Services 2013

5. At arbitration, the Board agreed with the Union that the Policy
infringed on the privacy of the employees and there were only
eight documented cases of alcohol in the workplace over 15
years, none of which lead to injury or accident, which meant that
the risk was low.
The Arbitration Board ruled that testing “involves bodily
intrusion and public embarrassment” and, in the Board’s opinion,
“the gains likely to result to Irving from the random testing were
minimal at best, making the infringement on employee privacy
out of proportion to any benefit”.
Irving appealed, and it went all the way to the Supreme Court.
Kathryn Kissinger HR Services 2013

6. Why does the SCOC ruling have major impact?
Clayton Jones reports, in the article “How Far
Reaching will the Irving Pulp and Paper Decision
Be?” which is embedded in the original article, on
two other similar cases in Canada currently subject
to Arbitration hearings.
These cases are brought by Suncor Energy in
Alberta and Teck (Coal) in BC.
Kathryn Kissinger HR Services 2013

7. In the Suncor case, the employer was able to
demonstrate that there is a problem with alcohol and
accidents in their workplace.
The Alberta Court of Appeal ruled, however, that
even though three of seven fatalities since 2000 were
alcohol-related, and six percent of the tested workers
had positive results, there was not sufficient merit to
the employer’s case to allow the testing to continue.
This grievance hearing began in January 2013 and is
ongoing.
Kathryn Kissinger HR Services 2013

8. The Teck (Coal) case has also not yet been completely resolved.
The BC Steelworker’s Union asked an Arbitrator for an
injunction in May 2013 to stop newly imposed random testing,
which was denied.
The Arbitrator ruled that although this dispute caused
“irreparable harm” to the Union/Employer relationship, the
Employer’s interest in safety was the deciding factor. Teck
submitted that in the previous five years, over 50 post-incident
tests were conducted with positive results for drug use.
The union is arguing that this is “low in the context of the
number of post-incident tests overall”. The hearing into the
merits of the grievance has yet to be heard.
Kathryn Kissinger HR Services 2013

9. The SCOC decision has resulted in workplaces
needing to demonstrate that there is a greatly
increased safety risk in the workplace such as
evidence of a drug or alcohol problem before
implementing a policy of random testing.
Although there is no clear-cut “level” of evidence
needed, the Irving and Suncor cases imply that the
benchmark is quite high, and may be very difficult
to overcome.
Kathryn Kissinger HR Services 2013