eCaseNote 2013 No. 05

Privacy vs. Safety: Confronting the Imposition of Random Drug and Alcohol Testing in Unionized Workplaces

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, 2013 SCC 34

The Supreme Court of Canada recently released a decision on the ability of employers to impose unilateral drug and alcohol testing in unionized workplaces in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited. Specifically, the decision addresses situations where there is no provision for such testing in a collective agreement, and where the employer must rely on the management rights clause in the collective agreement. The Court held that the imposition of drug and alcohol testing in the circumstances was unreasonable. However, the Court did not shut the door on the use of such testing. Rather, it stated that where there is evidence of problems with drugs and alcohol in the workplace, unilaterally-imposed testing would be acceptable.

Background

The judgment arises as an appeal of a decision made by a labour arbitrator in New Brunswick. The case arose from Irving Pulp & Paper’s new policy to unilaterally impose random drug and alcohol testing on employees who held positions designated as “safety sensitive”. An employee subjected to the test filed a grievance. The arbitrator held that in the circumstances, and given the lack of evidence of any problem with drugs and alcohol in the workplace, the testing was not appropriate.

The Supreme Court’s Decision

The Supreme Court heard the appeal as a result of judicial review of the arbitrator’s decision. It stressed the importance of the “balancing of interests” proportionality approach that has developed in arbitral decisions in Canada. That is, any exercise of managerial power under the management rights clause must balance the interests of safety with the prejudicial effects on employees’ privacy rights. While the level of danger inherent in a worksite is important to the inquiry, it is not determinative and must be balanced against the privacy rights of employees.
The Court stated that unilateral testing of employees without evidence of any problem in the workplace is unjustified and an affront to employees’ privacy rights. Even though the workplace was considered “dangerous”, and safety of employees is important, this consideration does not outweigh privacy without evidence of problems in the workplace. Therefore, the labour arbitrator’s decision that the testing was inappropriate was upheld by the Supreme Court.

Lessons for Unionized Workplaces

While the Court was quick to state that there needs to be evidence of problems in the unionized workplace in order to justify use of managerial power in imposing random drug and alcohol testing, it did not specifically state what type of evidence would be required, or how many incidents would justify such testing. That being said, the door is clearly left open for employers to impose random testing in particular circumstances.
Also, what is important for employers to note is that the Court confirmed the decisions of labour arbitrators which said that a particular unionized employee could be singled out and tested if there is reasonable cause to believe that they were impaired while on duty, involved in a workplace accident, or returning to work after substance abuse treatment.

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