Bennett Jones
In Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, a decision released on June 14, 2013, the Supreme Court of Canada has confirmed the limited ability of management to unilaterally impose random alcohol testing policies for employees in a dangerous workplace unless the imposition of any such policy is a "proportionate response" that balances the legitimate safety concerns of management with the privacy interests of employees.
In its decision, the Supreme Court of Canada reviewed whether the management rights clause of Irving's collective agreement was sufficiently broad to enable Irving to unilaterally adopt a policy whereby ten percent of employees in safety-sensitive positions at its paper mill would be randomly selected for unannounced alcohol (breathalyzer) testing.
While the Court split (6/3) in its decision, both the majority and minority generally agreed to the tests to be applied when considering if the arbitration board's decision was reasonable: namely, the use of the "KVP test", which provides, in part, that any rule unilaterally imposed by management in a unionized workplace must be consistent with the collective agreement and be reasonable if the breach of the rule results in disciplinary action and the use of the 'balancing of interests' approach when assessing such reasonableness.
Applying these tests, the majority of the Supreme Court held that Irving failed to demonstrate "the requisite problems with dangerousness or increased safety concerns such as workplace alcohol use that would justify universal random testing". Accordingly, the majority found that Irving's policy was an unreasonable exercise of management rights under the collective agreement: the "uncertain" and "minimal" safety gains Irving obtained did not outweigh the significant impact that the random tests had on its employees' privacy.
In a strongly worded dissenting judgment, the minority concluded that the arbitration board that had struck down Irving's random alcohol testing policy had "elevat(ed) the threshold of evidence Irving was required to introduce in order to justify a policy of random testing" and thus that its decision to strike down the policy was unreasonable.
The minority concluded that evidence of a problem of alcohol misuse at the Irving mill was sufficient to justify random testing of employees in safety sensitive positions (rather than evidence of a significant or serious problem as required by the board), and that the requirement imposed by the board that evidence of alcohol use be tied or causally linked to the accident, injury and near-miss history at the plant was patently absurd.
While the Court split on the extent of the evidence of a problem with alcohol that was required to meet the tests, it is clear that some evidence of a problem, even in safety sensitive environments, will be required.
In view of the decision in Irving Pulp and Paper, and in particular the comment by the majority of the Supreme Court that "an employer would be justifiably pessimistic that a policy unilaterally imposing random alcohol testing in the absence of reasonable cause would survive arbitral scrutiny", management should be mindful of this decision when considering whether to unilaterally impose a random drug and/or alcohol testing policy at the workplace. If such a policy has already been implemented, management may wish to review same in light of this decision.