Labor & Employment Law

I was about to write about the most recent case of Petro-Canada Lubricants Centre (Mississauga) and Oakville Terminal dealing with random alcohol testing and saw that Dan Michaluk has a great summary of the case at his blog.

You'll see that Arbitrator Kaplan references a leading case of Arbitrator Picher in Imperial Oil that was judicially reviewed and, in fact, recently made its way to the Court of Appeal. 

The generally applicable law was set out by Arbitrator Picher in Imperial Oil:

• No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
• An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
• It is within the prerogatives of management?s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.
• Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee?s program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace the Union must be involved in the agreement which establishes the terms of a recovering employee?s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
• The cases generally recognize that an employee?s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer?s drug and alcohol policy, and may itself be grounds for serious discipline. The failure or refusal to take an alcohol or drug test, however, like the registering of a positive test, does not necessarily justify automatic termination. The appropriate disciplinary sanction in such a case remains subject to the general just cause provisions of the collective agreement and is an issue to be determined on a case by case basis, having regard to all of the relevant facts (at para 100).

Arbitrator Picher went on:

?a key feature of the jurisprudence in the area of alcohol or drug testing in Canada is that arbitrators have overwhelmingly rejected mandatory, random and unannounced testing for all employees in a safety sensitive workplace as being an implied right or management under the terms of a collective agreement. Arbitrators have concluded that to subject employees to an alcohol or drug test when there is no reasonable cause to do so, or in the absence of an accident or near miss and outside the context of a rehabilitation plan for an employee with an acknowledged problem is an unjustified affront to the dignity and privacy of employees which falls beyond the balancing of any legitimate employer interest, including deterrence and the enforcement of safe practices. In a unionized workplace, such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated. It is not to be inferred solely from general language describing management rights or from language in a collective agreement which enshrines safety and safe practices (at para 101).

As I said, the Award was reviewed by the Divisional Court and then by the Court of Appeal.

Dan has great summaries of these cases here and here.