On September 28, 2017, the Alberta Court of Appeal released its decision in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313. This decision is significant in understanding when an employer can justify random testing in a workplace.

Prior to this case, the Supreme Court of Canada ruled that an employer cannot unilaterally introduce a random testing program, even in a highly safety-sensitive workplace, unless it is able to demonstrate the presence of enhanced safety risks, such as a general problem with substance abuse in the workplace, which cannot be combated in some less invasive way.

In 2012, Suncor implemented a random testing policy at its Oil Sands sites in the Fort McMurray region. The policy required employees in safety sensitive positions to undergo random testing. Suncor implemented the policy in response to concerns that there was a rampant drug and alcohol problem on their sites that could not be properly dealt with less invasive measures. Unifor, on behalf of their unionized workers, alleged that there was insufficient evidence of a problem with drug and alcohol use among employees within its bargaining unit, and that the policy violated its members’ privacy rights. This grievance proceeded to a lengthy arbitration where Suncor presented evidence of 2,276 drug and alcohol “security incidents” recorded between 2004 and 2013. Unifor took the position that only 12 of the incidents involved union members. At the time of the grievance, there were about 10,000 workers at Suncor’s oilsands sites at any given time, including nearly 3,400 represented by Unifor.

The majority of the arbitration panel ruled in favour of Unifor deciding that there was insufficient evidence put forward by Suncor to demonstrate a serious enough problem specifically related to employees within the Unifor bargaining unit. Suncor applied for judicial review of this decision. Upon review, a Court of Queen’s Bench Justice found that the decision of the arbitration panel was unreasonable, and ordered that the grievance be reheard by a new arbitration panel. Unifor appealed that decision to the Court of Appeal.

In a unanimous decision, the Court of Appeal has now denied the appeal and sent the grievance back for a new arbitration hearing. In addition to being critical of several other aspects of the original arbitration decision, the Court found that by focusing only on the bargaining unit, the arbitration panel expressly excluded relevant evidence of a drug and alcohol problem pertaining to some two-thirds of the individuals working in the oilsands operation. In the ruling, it was noted that workers inside and outside the union regularly work side-by-side which highlights why safety is such a concern.

This decision is significant for employers who have employees operating in safety sensitive workplaces. Although the decision does not rule on legality of the policy, it provides some guidance regarding the evidence needed to support random testing. Furthermore, this decision together with other decisions earlier this year may be indicative of a possible trend towards increased support for random testing.

A Unifor spokesman said the union will appeal the judge’s decision and maintains that random testing violates the basic rights of union members. The spokeman further stated that random drug testing does not reduce accidents or improve safety.

Safety versus Privacy. Do safety concerns outweigh privacy rights against random drug testing?

Give us your thoughts!!