In Suncor Energy Inc. v Unifor Local 707A, the Court of Appeal of Alberta held that arbitration panel’s decision to strike down Suncor’s random drug and alcohol policy was unreasonable.
You may recall that Bird Richard previously reported on the arbitration award and the lower court decision of this case. The employer, Suncor, implemented random drug and alcohol testing for workers in safety-sensitive positions at some of its sites in the Fort McMurray area. Unifor, the union, grieved the policy on the basis that it infringed the unionized workers’ privacy rights. The majority of the arbitration panel ruled in favour of the union. The Court of Appeal agreed with Suncor that the arbitration decision was unreasonable because:
- 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.
- The arbitration panel only considered evidence of drug and alcohol use amongst employees who were members of the bargaining unit. The entire workplace ought to be considered.
- The arbitration panel overlooked important evidence presented by Suncor relating to “security incidents”. This resulted in the exclusion of evidence regarding alcohol and drug use pertaining to almost two-thirds of the oil sands operations workers.
The Court of Appeal of Alberta reiterated that the test to meet to justify a random drug and alcohol testing policy was whether there was sufficient evidence of enhanced safety risks, such as a general problem with substance abuse in the workplace.
As previously reported, for employers, this decision provides clarification into the standard for implementation of random drug and alcohol testing policies in the workplace. In particular, employers who can demonstrate that there is a “general” problem with drugs and alcohol may be able to justify the implementation of random drug and alcohol testing for safety-sensitive positions.