Alcohol and Drug Abuse – Irving

On appeal from the Court of Appeal for New Brunswick: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34

“Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly the case when the workplace is a dangerous one.” (Abella J.)

If an employer decides not to negotiate safety measures before implementing them, and if those measures have disciplinary consequences for employees, the employer must bring itself within the scope of the management rights clause of the collective agreement.

In this case, the legal issue is whether implementing a random alcohol testing policy was a valid exercise of the employer’s management rights under the collective agreement.

Background

The Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy on alcohol and drug use that the employer, Irving, unilaterally implemented at a paper mill. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyser testing over the course of a year. A positive test for alcohol attracted significant disciplinary action, including dismissal.

Previous decisions

The Arbitration Board allowed the grievance. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of the employees, a majority of the Board concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace.

On judicial review, the Board’s award was set aside as unreasonable because of the dangerousness of the workplace.

The New Brunswick Court of Appeal dismissed the appeal.

The appeal was allowed in the Supreme Court by a majority of six judges with three judges dissenting.

Majority analysis

An employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights.

The majority judges held that the expected safety gains to the employer were found by the Board to range from uncertain to minimal, while the impact on employee privacy was much more severe.

The Court noted the Board’s conclusion that eight alcohol‑related incidents at the Irving mill over a 15‑year period did not reflect the requisite problem with workplace alcohol use. Consequently, the employer had not demonstrated the requisite safety concerns that would justify universal random testing. As a result, the employer exceeded the scope of its rights under the collective agreement.

Dissent

There is agreement with the majority that the standard of review is reasonableness. However, the dissenting judges disagreed with the application of that standard.

The arbitral jurisprudence does not recognize an unqualified right of employers to unilaterally impose workplace rules on their employees outside of the collective bargaining process. Rather, the onus is on the employer to justify such rules based on compliance with standards established by the arbitral jurisprudence.

The dissenting judges stated the opinion that the Board departed from the legal test emerging from the arbitral consensus by elevating the threshold of evidence Irving was required to introduce in order to justify a policy of random alcohol testing. The Board required evidence of a “significant” or “serious” problem at the Irving mill. The standard reflected in the arbitral consensus, however, is evidence of “a” problem. The Board then required that the evidence of alcohol use be tied or causally linked to the accident, injury or near miss history at the plant. 

In the absence of any explanation whatsoever, it is impossible to understand why the Board thought it reasonable to do what it did. In the circumstances, its decision thus fell outside the range of reasonable outcomes defensible in respect of the facts and law.

Conclusion

In this decision, the Court issued a reminder that the dangerousness of a workplace is clearly relevant, but that it has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences.