SCC Strikes Down Employer’s Mandatory Random Alcohol Testing Policy

On June 14, 2013, in its highly anticipated decision in Communications, Energy and Paperworkers’ Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Supreme Court of Canada upheld the original arbitration board decision to strike down the employer’s mandatory random alcohol testing policy.  The majority of the SCC decided that:

• Management Rights.  The key legal issue was the interpretation of the collective agreement’s management rights clause.  Under long established case law, the employer can only unilaterally impose a rule or policy that is consistent with the collective agreement and is reasonable.
• Safety Not Determinative.  In a safety context, the employer can only impose a rule with disciplinary consequences if the need for it outweighs the harmful effect on employees’ privacy rights. A dangerous workplace is relevant to the proportionality inquiry – which requires careful balancing of interests – but it does not automatically justify mandatory random testing with disciplinary consequences.
• Evidence Fell Short. The employer’s evidence (uncertain to minimal expected safety gains and 8 alcohol related incidents over 15 years) did not demonstrate the safety concerns sufficient to justify universal random testing.

The SCC decided the employer exceeded the scope of its management rights under the collective agreement when it imposed the mandatory random alcohol testing policy in its kraft mill.

The SCC’s decision overruled the NB Court of Appeal’s July 7, 2011 decision.  The NB Court of Appeal had found the arbitration board’s decision to be unreasonable.  The Court of Appeal upheld the policy, confirming that in an “inherently dangerous” workplace, an employer can adopt a policy requiring mandatory random alcohol testing of employees in safety sensitive positions by breathalyser without first proving there is an existing alcohol problem in the workplace in.  Read McInnes Cooper’s August 6, 2011 Legal Update N.B. Court of Appeal Upholds Mandatory Random Alcohol Testing Policy.

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

Read McInnes Cooper’s full analysis of this case.

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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