On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd  unanimously confirmed that in weighing two fundamental –  and at times contradictory – workplace interests, privacy trumps safety: an employer cannot unilaterally adopt a mandatory random alcohol testing policy for safety sensitive employees in a dangerous workplace  unless it is justified based on convincing evidence of a significant problem with alcohol use in that workplace.

However, the SCC split when it came to deciding whether the evidence in this case – a paper mill constantly using and unloading hazardous materials and liquids, with a $350 million pressure boiler with a high potential for explosion – was sufficient to justify the employer’s unilateral implementation of a mandatory random alcohol testing policy.  The majority said it was not:

• Management Rights:  The SCC unanimously agreed that the issue was the interpretation of the management rights clause in the collective agreement.
• Dangerous is Not Enough.  Similarly, all judges agreed that a dangerous workplace does not automatically justify mandatory random testing with disciplinary consequences.
• Traditional Arbitration Test Applies. Again, all judges agreed that the traditional arbitration test applied:  an employer must prove the existence of real safety risks associated with a general and recurrent problem with alcohol consumption in the workplace to justify a random alcohol testing policy.
• Evidence Falls Short. The SCC judges split at this point:  a majority of six judges found the employer’s evidence did not demonstrate sufficient safety concerns to justify universal random alcohol testing; three of the judges found that it did.

BACKGROUND 

Irving Pulp & Paper, Limited (IPP) operates a Kraft paper mill along New Brunswick’s Saint John River. There had been eight alcohol-related incidents at the mill in the past 15 years, none of which resulted in accidents, injuries or near misses. However, IPP’s position was that it wished to take a proactive approach to prevent alcohol-related accidents in the workplace. In its view, an accident could be catastrophic for all employees and also for the public and the environment.

In 2006, IPP unilaterally adopted a workplace policy requiring mandatory random breathalyser testing, without any cause, of employees in safety sensitive positions (Policy). IPP relied on the management rights clause in its collective agreement to implement the Policy. IPP determined that 334 unionized employees held safety sensitive positions; all were eligible for random testing under the Policy. IPP assured randomness by using off-site computer-assisted random selection of 10% of the eligible employees at any time during the year. The Policy provided for testing by breathalyser and stated that IPP could dismiss an employee who refused to take the test.

During the first 22 months following IPP’s implementation of the Policy, all tested employees had a negative (0%) result. At that point, an employee who did not consume alcohol was selected; he took the test and tested negative (0%). The union lodged a policy grievance challenging IPP’s authority to unilaterally adopt the Policy because it required alcohol testing without any cause.

ARBITRATION BOARD AND LOWER COURTS 

The Arbitration Board decided the Policy was not justified because the   work environment is not “ultra-dangerous” and there was no evidence of a “significant” alcohol problem in the workplace.

IPP sought review of the Arbitration Board’s decision by the courts.  Both the NB Court of Queen’s Bench and the NB Court of Appeal disagreed with the Arbitration Board, deciding that:

• There is no “ultra-dangerous” category of workplace.
• In an inherently dangerous workplace, the employer is not required to provide an existing alcohol problem to justify random alcohol testing.
• Mandatory random alcohol testing in the workplace is justified once the employer established the workplace operations are inherently dangerous, and is reasonable if the testing is done by breathalyser and limited to employees in safety sensitive positions.

Read McInnes Cooper’s August 6, 2011 legal update N.B. Court of Appeal Upholds Mandatory Random Alcohol Testing Policy.

SUPREME COURT OF CANADA

All nine SCC judges agreed on the applicable legal analysis in this case:

Management Rights.  All SCC judges defined the “legal issue at the heart” of the case as the interpretation of the management rights clause of the collective agreement.. Thus, the well-established “KVP “rule applies: a unilaterally adopted policy will be within the scope of the management rights clause only if it is reasonable and its necessity overrides the fundamental privacy rights of employees.

Dangerous is Not Enough.  All judges also agreed that the dangerous nature of the workplace is an important factor to consider it does not, in itself, justify a mandatory and random alcohol policy. The analysis must continue to determine the reasonableness of the policy using a “balancing of interests” approach that considers the interests of both the employees (privacy) and the employer (safety).

Traditional Arbitration Test Applies. The SCC considered the history of relevant arbitral cases, concluding Canadian arbitrators have generally rejected random drug and alcohol testing. The SCC confirmed the traditional arbitration test, requiring an employer to justify a random alcohol testing policy by proving the existence of real safety risks associated with a general and recurrent problem with alcohol consumption in the workplace. An employer involved in dangerous operations is not automatically excused from demonstrating a pre-existing alcohol problem in the workplace.

At this point, the SCC judges diverged six to three on how the law applied to the facts in this case – and thus on the outcome:

Majority: Not Enough Evidence to Justify. The majority of the SCC found IPP’s evidence of alcohol-related incidents in its mill fell short of demonstrating there was a workplace alcohol problem that justified the unilateral imposition of the Policy. In contrast, the three dissenting judges found IPP’s evidence was sufficient to justify implementation of the Policy.

Read the SCC’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 

PRIVACY PARAMOUNT 

The SCC’s decision is as significant for what it did not do, as what it did:

No New Law. Although the SCC’s decision was highly anticipated, the SCC did not change the law on alcohol testing that arbitrators and arbitration boards developed through previous arbitration awards, and have applied for some time:

• Justified and Reasonable. The SCC did not rule that an employer can never impose a random alcohol testing policy. It merely confirmed that an employer’s unilateral adoption of such a policy must be justified and reasonable.
• Pre-Existing Alcohol Problem. An employer can justify such a policy by showing the existence of real safety risks associated with a general and recurrent problem with alcohol consumption in the workplace.
• For Cause Testing. Employers can adopt drug and alcohol policies requiring employees to be tested in the three following circumstances:
  • the employer has reasonable cause to believe an employee is impaired;
  • following a workplace accident or near miss where the root cause of the occurrence needs to be identified; or
  • where an employee is subject to an agreed rehabilitative program.

In the end, then, this case is fact specific: if IPP had been offered more evidence of alcohol-related incidents, near misses or accidents, it is possible a majority of the SCC would have found the Policy was justified and reasonable, and upheld it.

Privacy Rights Paramount. The decision does demonstrate that courts are willing to recognize and enforce employee privacy rights. Since employee privacy rights is a recurrent workplace theme, the decision is likely to inform privacy-related issues beyond alcohol testing.  Further, although this decision was in the context of a unionized workplace, the SCC expressly stated that it is necessary to undertake the same exercise of balancing safety and privacy interests and demonstrating the reasonable necessity for the adoption of such a policy in a non-unionized context.

Arbitration Decisions Elevated.  Arbitration decisions are not “binding” on any court – and in particular, on the SCC. However, the SCC put great emphasis on the body of cases generated by arbitral boards, and in the end adopted the same approach.  In doing so, the SCC sends s strong message: such boards are mandated by the legislature to apply and interpret collective agreements, and have the required expertise to do so – and courts should give them due deference.

Practical Points.  Practically speaking, employers contemplating adopting a drug and alcohol policy should keep in mind the following general principles:

• Policy Agreement. In a unionized workplace, employers should consider engaging in safety negotiations at the bargaining table, and developing and implementing a drug and alcohol policy in concert with the union.
• Document, Document, Document. In any case of an incident, accident, or near-miss in the workplace involving drugs and/or alcohol, an employers should carefully and thoroughly document all details.  In this way, if and when a drug and alcohol policy is challenged – or the employer wishes to unilaterally adopt one – the employer will have the evidence it needs to do so.
• Safety is Important. Safety is important. If an employer believes it should implement a random alcohol testing policy for legitimate safety reasons, legal counsel can assist the employer evaluate the evidence and determine the likelihood an arbitrator or court would consider it to be justified and reasonable.

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour and Employment Team to discuss this topic or any other legal issue.

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