Supreme
Court says Irving pulp mill's random testing policy has 'severe' impact on
privacy
Posted:
Jun 14, 2013 10:22 AM ET
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The Supreme Court of Canada has
overturned a company's right to impose mandatory, random alcohol testing on its
unionized workers in a dangerous workplace.
In a 6-3 decision released on
Friday, the court ruled the policy unilaterally adopted by Irving Pulp and
Paper Ltd. in Saint John in 2006 for employees in safety sensitive positions is
unreasonable.
The
Supreme Court of Canada says random alcohol testing by an employer is only
justified in certain circumstances.
(Canadian Press/Adrian Wyld)
A dangerous workplace is not
automatic justification for random testing, the court ruled in the case, which
dealt narrowly with unionized workers and management's ability to balance
privacy rights with the need for safety in dangerous workplaces.
The decision says dangerousness of a
workplace only justifies testing particular employees in certain circumstances:
- Where there are reasonable grounds to believe an employee was impaired while on duty.
- Where an employee was directly involved in a workplace accident or significant incident.
- Where the employee returns to work after treatment for substance abuse.
"It has never, to my knowledge,
been held to justify random testing, even in the case of 'highly safety sensitive'
or 'inherently dangerous' workplaces like railways (Canadian National) and
chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105
L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM
Agri-Industries), in the absence of a demonstrated problem with alcohol use in
that workplace."
'In this case, 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 severe.'—Supreme
Court of Canada
The case stems from a 2006 grievance
filed by Local 30 of the Communications, Energy and Paperworkers Union of
Canada (CEP), at the Irving mill.
"We respect the decision,"
Irving spokeswoman Mary Keith said in a brief emailed statement.
"We will be reviewing the
decision and have no further comment at this time," she said.
"Our focus has and continues to
be the safety of our co-workers and communities where we have operations."
Could
affect Alberta Suncor case
David Coles, the national president
of CEP, said the ruling is "very clear" and believes it will help
resolve a similar dispute in Alberta.
Suncor Energy is trying to bring in
a random drug and alcohol testing program for employees and contractors at its
oilsands operations in Fort McMurray.
"As clear as it is written… if
someone was to have random drug testing, they would have a fairly high bar to
cross before they would be able to, I believe, get it past the judiciary
because there just isn’t any evidence at all that it affects the outcome at
work," said Coles.
"The fundamental issue here is
there’s absolutely no evidence presented here or anywhere else that random drug
testing increases the safety in any operation," he said.
"So it turns out to be nothing
more than an invasion of ones' privacy with no net gain for the consequence of
safety."
Coles said the union is opposed to
anyone using any kind of alcohol or drug at work, but contends substance abuse
is a societal issue that must be dealt with, not a workplace issue to be
legislated.
"Stop spending so much money
trying to beat on blue collar workers and get to the problem," he said.
"You don't see random drug testing in downtown Toronto in the big white
towers… And please don't tell me that the incidence of drug and alcohol abuse
is any different in Fort McMurray than it is on Bay Street."
The Alberta Federation of Labour,
which was an intervener in the Irving case, also believes the decision could
influence the Suncor arbitration, said president Gil McGowan.
"Employers simply have to
demonstrate there's a problem with drug abuse or alcohol abuse in the workplace
before they can move ahead with these kind of arbitrary random drug testing
regimes, but it's clear the employer didn't prove that and we would argue that
they haven't been able to prove that in Suncor either. So we're very pleased
with the decision."
The court found the Irving policy
had been properly rejected by a labour arbitration board.
"In this case, 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 severe," the decision
states.
Irving "exceeded the scope of
its management rights under a collective agreement by imposing random alcohol
testing in the absence of evidence of a workplace problem with alcohol
use."
The court awarded "costs
throughout" to CEP.
Daniel Leger, a lawyer representing
the union, declined to discuss the amount involved, citing attorney-client
privilege.
But he said the judgment will allow
the union to recoup some of its legal costs in the seven-year dispute.
Broad
implications
he decision from the top court
could have broad implications. It is considered a national test case for how
far an employer can go when it comes to a worker's right to privacy.
It attracted numerous interveners,
including the Canadian Civil Liberties Association, the Canadian National
Railway Company, Via Rail Canada, the Canadian Mining Association, and the
Canadian Manufacturers and Exporters (CME), which describes itself as the
largest industry and trade association.
Ian Howcroft, vice-president for the
Ontario division of the CME, said it's "unfortunate" the Supreme
Court did not uphold a company's right to do random testing.
But "it's encouraging the
judgment did not close the door completely and companies may still be able to
do some testing in certain circumstances," Howcroft said.
He maintains companies should have
everything at their disposal to ensure the workplace is free of hazards.
Lawyer
argues reasonable cause needed for testing
Irving
Pulp and Paper Mill in Saint John had unilaterally adopted a policy of
mandatory random alcohol testing for employees in safety-sensitive positions in
2006. (Flickr/Greg Hickman)
The Supreme Court heard arguments
last December, but reserved its decision.
Fredericton-based lawyer David Mombourquette,
who was representing the CEP, had argued a breathalyzer is an involuntary
submission of bodily fluids and amounts to a high level of random personal
intrusion.
Testing should only be permitted
when there is reasonable cause, such as slurred speech or the smell of alcohol,
he had said.
But the Irving company's lead
counsel, Neil Finkelstein, had argued the policy is justified because the mill
is full of hazardous chemicals, flammable substances, heavy rotating equipment,
a 13,000-volt electrical system and a $350-million high-pressure boiler.
In addition, the mill had a history
of drinking being a problem, he had said, citing eight documented incidents
between 1991 and 2006, when the random testing policy was implemented.
In March of that year, millwright
Perley Dey's name was randomly selected by a computer program to take a
breathalyzer test.
Dey said he took the test because he
was afraid of losing his job. The test showed a blood alcohol level of zero.
But Dey, who describes himself as a
religious man who doesn't drink, said the test was humiliating and unfair.
An arbitration board allowed the
grievance, ruling Irving had failed to establish a need for the policy. But a
New Brunswick Court of Queen's Bench judge reversed that decision, which the
union appealed.
The New Brunswick Court of Appeal
dismissed the grievance in 2011, ruling the mill qualifies as an inherently
dangerous workplace. The union appealed that decision to the Supreme Court of
Canada.
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