In Suncor Energy Inc. v Unifor Local 707A, the Court of Queen’s Bench of Alberta overturned an arbitration panel’s decision to strike down the employer’s random drug and alcohol testing policy on the basis that it failed to consider evidence of security problems in the workplace.
The employer, Suncor Energy Inc., operates in the Athabasca oil sands in the Wood Buffalo Municipality of Alberta. One third of Suncor’s employees are represented by Unifor, one third are non-unionized, and the remaining employees are employed by contractors.
In June 2012, Suncor announced that it was implementing a Canada-wide drug and alcohol policy as well as a Random Testing Standard that would apply only to workers at the oil sands operations in the Wood Buffalo Municipality. Under this policy, employees working in safety-sensitive positions would be subject to random drug and alcohol testing. Unifor grieved Suncor’s implementation of the Random Testing Standard alleging the policy was contrary to the collective agreement, to the common law and to applicable legislation.
The employer submitted evidence regarding “Alcohol and Drug Security Incidents” between 2004 and September 2013 which included reference to specific “finds”: empty alcohol bottles, drug paraphernalia, drugs, whizzinators and other devices meant to adulterate a urine test.
At arbitration, the majority of a three member panel found that Suncor’s Random Testing Standard ran contrary to the framework set out in the 2013 Supreme Court decision in Irving. In Irving, the Supreme Court of Canada held that, although a dangerous workplace does not in itself justify random drug and alcohol testing, a general problem with drugs and alcohol in the workplace might justify such a policy. The minority in the arbitration panel found that Suncor had established an ongoing workplace problem with drugs and alcohol and as such was justified in implementing the Random Testing Standard.
On judicial review, the Court found that the majority decision of the arbitration panel was unreasonable as it did not correctly apply the test in Irving for three reasons:
- The arbitration panel set a higher threshold than articulated by the Supreme Court in Irving by requiring evidence of a serious or significant problem with drugs and alcohol rather than a general one;
- By looking only at drug and alcohol use amongst employees who were members of the bargaining unit. The Court did not require evidence of a problem solely within the bargaining unit but rather of a general workplace problem. Further, the Court noted that workplace safety should be considered as an aggregate concept; and
- By overlooking important evidence presented by Suncor relating to “security incidents” and by restricting their analysis to only the bargaining unit, the arbitration panel excluded consideration of evidence regarding alcohol and drug use pertaining to almost two-thirds of the oil sands operations workers.
For these reasons, the Court found that the arbitration panel’s decision was unreasonable, quashed the decision and remitted the matter for arbitration before a new panel.
For employers, this decision provides clarification into the standard for implementation of random drug and alcohol testing policies in the workplace. It appears that evidence of a serious or significant problem with drugs and alcohol is not a prerequisite; rather, a “general” problem may be sufficient to justify such policies.