A recent decision of the Newfoundland and Labrador Court of Appeal in Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union1 puts employers on notice to be cautious in implementing post-incident drug testing, even where such testing is contemplated in an employer's alcohol and drug policy.
Background
The Hibernia Platform Employers' Organization ("HPEO" or the "Employer") ordered alcohol and drug testing as part of an investigation into a series of cargo manifest errors for helicopter flights from the Hibernia offshore platform, from December 2014 to January 2015. In four instances, discrepancies had occurred between the cargo manifest and the actual cargo flown. Two of these incidents involved the flight having extra cargo on-board, as a result of outbound bags not being properly removed at the Hibernia platform, and being on the return flight without being on the manifest. In the two other incidents, bags were included on the manifest but did not get loaded on-board the flight. Such errors had the potential to affect helicopter flight and operations, and were also violations of the safety and security regulations and protocols relating to helicopter transport in the Newfoundland and Labrador offshore. As such, their seriousness was acknowledged and each incident was separately reported and investigated. As a result, changes to operating procedures had been identified, but were not implemented when the fourth incident occurred in January 2015. The first three incidents did not involve alcohol or drug testing.
In the fourth incident, a bag listed on the manifest was not loaded onto a flight. Immediately upon the error being identified, the Employer declared there had been a "safety incident" under HPEO's Alcohol and Drug Policy (the "Policy"), and directed eight employees (all union members) involved in baggage handling, to undergo post-incident alcohol and drug testing. One employee tested positive for a prohibited substance and his employment was terminated.
The Policy, which was incorporated into the collective agreement between HPEO and the Communications, Energy and Paperworkers Union, Local 2121, known as Unifor, (the "Union") contained the following provision regarding post-incident testing:
- Employees are subject to testing for alcohol and specified drugs after a significant incident or a safety incident as determined by management. Post-incident testing will form part of an individualized assessment of the possibility of substance abuse or substance dependence. The purpose of this type of testing is to help eliminate substance use as a cause and to determine whether substance use was a possible contributing factor in an incident. It is recognized that a positive post-incident test may not always independently prove that substance use was the "root cause" or a contributing factor in a particular incident. As such, it does not relieve the employer of the obligation to complete a thorough investigation. [Italics in original.]
The Union filed a grievance, challenging the dismissal. At the same time, it filed a policy grievance, alleging that post-incident testing was conducted so frequently by the Employer that it amounted to random testing.
Arbitration Board
At arbitration, the Board allowed the individual grievance and reinstated the employee on the basis that HPEO had not acted properly in requiring the post-incident alcohol and drug testing when it did. Specifically, the Arbitration Board found that while the Policy provided for post-incident testing as part of an investigation, there were other requirements the employer had to satisfy before it could be in a position to require testing. These requirements had been identified in previous arbitral decisions involving post-incident alcohol and drug testing and included a requirement to conduct at least a preliminary or cursory investigation into the causes of the incident, asking the employees involved in the incident what had occurred, as well as establishing a possible causal link between the employee's actions to the incident.
The Arbitration Board heard evidence that HPEO ordered alcohol and drug testing immediately upon learning of the fourth incident. HPEO decided following the third incident, that it would order alcohol and drug testing on any subsequent incident.
The Arbitration Board found that the Policy did not give HPEO the authority to order alcohol and drug testing at the inception of its investigation. Instead, it held that HPEO needed to conduct some level of preliminary investigation as to potential causes of the incident, and to identify substance abuse as a possible factor, before testing the employees. The Arbitration Board found that failure to take these steps was a violation of the Policy, and as such, reinstated the employee. The policy grievance however, was dismissed.
Judicial Review
HPEO's application for judicial review, challenging the Arbitration Board's decision to reinstate the employee, was dismissed. The Supreme Court of Newfoundland and Labrador, General Division, held that the decision of the Arbitration Board was not unreasonable. HPEO subsequently sought to have this decision overturned by Newfoundland and Labrador's highest court.
Newfoundland and Labrador Court of Appeal
The Newfoundland and Labrador Court of Appeal upheld the Supreme Court's decision to dismiss HPEO's application for judicial review. It emphasized that the Policy itself states that post-incident alcohol and drug testing requires an individual assessment. Welsh JA, writing for a unanimous Court of Appeal, held, at paragraph 20, that:
...[w]hile drug or alcohol testing is an investigative tool available to management, it was not unreasonable for the Board to interpret the Policy so as to require management to take initial steps to be satisfied that ordering certain employees to undergo drug or alcohol testing would, indeed, be indicated. The extent of investigation necessary before ordering testing would depend on the particular circumstances.
Analysis
HPEO's pursuit of judicial review and the subsequent appeal is understandable as it is difficult to reconcile the reasoning of the Arbitration Board with the language of the Policy. In particular, a requirement that some preliminary investigation occur, and that alcohol and drug testing would be permissible only if that investigation raised impairment as a possible cause, does not easily align with a Policy that expressly contemplates using alcohol and drug testing to eliminate possible causes at first instance. The language of the Policy however, does not accord with the accepted arbitral jurisprudence. Alcohol and Drug Testing should not be an automatic response following a serious incident.
HPEO immediately ordered alcohol and drug testing following the fourth incident without performing any investigation into the matter. The evidence in this case showed that human error by the employee involved was at least partially responsible for the incident, and that this would have been readily determinable if HPEO had questioned the employees. There was also evidence that HPEO management acknowledged that no one involved had shown any indication of impairment.
Lessons for Employers
The outcome of this case is consistent with the advice we have given clients for a number of years regarding post-incident alcohol and drug testing. Post-incident testing should not be viewed as an automatic or routine investigatory tool in response to a serious incident.
This means that employers should:
- Be prepared to quickly gather information in response to a serious incident, including questioning employees involved on what had occurred, and to document such information;
- Expect to only be able to require alcohol and drug testing if these preliminary processes indicate, at the least, that employee action, and possibly that impairment by employees, may possibly be a cause of the incident; and
- Treat every incident as a discrete event, and not assume that the existence of previous incidents will justify testing in the absence of some form of justification to do so in the facts of the incident at hand.
Finally, as an aside, while cannabis was not an issue in this matter, the provisions of the Policy included in the decisions provide a prime example of the need for employers to review existing policies in anticipation of cannabis legalization.
Footnote
1. Hibernia Platform Employers' Organization v Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45.
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