A British Columbia arbitrator has denied an application by the
United Steelworkers for an interim injunction that would prohibit
Teck Coal from performing random drug and alcohol tests at several
coal mines until the union's grievance of that policy could be
addressed. The
decision provides another perspective in the rapidly evolving
jurisprudence on random drug and alcohol testing in Canada.
As in previous decisions, the arbitrator assessed the risks to
employee safety along with the potential infringement on employee
privacy. The arbitrator concluded that the employer's interest
in protecting employees should be paramount as a failure to do so
would result in the greatest degree of irreparable harm.
This case is notable because it considers the Communications,
Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc.
decision by the Alberta Court of Appeal, which remains the only
decision to ever uphold an interim injunction with respect to
random testing.
In response to the Court of Appeal's concern with the lack of
evidence to support the position that random drug and alcohol
testing will prevent industrial accidents in the Suncor
case, Teck Coal presented substantial evidence on that point. The
arbitrator concluded that, in light of this evidence, the concerns
expressed by the majority of the Court of Appeal in Suncor
had been largely addressed and a different conclusion was reached
despite the factual similarities.
Although this decision is not binding in Alberta it offers valuable
insight into how courts and arbitrators may interpret the
Suncor decision. It also provides additional consideration
of the validity of random drug and alcohol testing at
safety-sensitive workplaces as we await the Supreme Court of
Canada's decision in Irving Pulp & Paper Ltd. v.
Communications, Energy and Paperworkers of Canada , Local 30.
This decision is widely expected to provide guidance on how courts
should treat random substance testing in the workplace.
Employers seeking to implement policies of this nature should be
carefully monitoring the ongoing developments in this area of
law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
