A recent decision by the Newfoundland Court of Appeal affirmed a labour arbitrator’s decision on drug testing in the workplace.

What Happened?

Employment on the Hibernia oil platform involved a particular level of danger, and all employees were consequently required to strictly comply with all relevant policies and practices.

The collective agreement that governed the relationship between the parties included a drug and alcohol policy which stated that when an event that would qualify as a “significant incident” occurs the employer could request an investigation into that event (including requesting drug testing of any employees involved).

Among the safety sensitive tasks that regularly took place on the platform was the movement of employees between the platform, located far out to sea, and the mainland.

After an incident involving helicopter safety on the platform (an error in loading baggage onto a departing helicopter), the employer ordered eight employees to submit to drug testing. One employee was subsequently terminated after testing positive for unauthorized drug use. .

The union filed two grievances on behalf of the terminated employee: 1) an individual grievance alleging unjust termination and requesting reinstatement and 2) a policy grievance alleging that the employer had been conducting post-incident drug testing so frequently it was basically conducting randomized drug testing, (which is not permitted) and requesting a declaration limiting such testing.

An arbitration board found in favour of the employee with respect to the individual grievance and he was reinstated.

The policy grievance was dismissed. The employer appealed the reinstatement.

A Review of the Arbitration Decision

On judicial review, the employer argued that the arbitration board’s decision imposed additional, unreasonable standards on the employer, in determining whether or not to order a drug test.

The board had said that:

  • There had been reasonable explanations for the baggage incident that did not involve drugs or alcohol (including passenger error);
  • The drug testing of the employee in question had been ordered without consideration of these other explanations, without an explanation from the employee, and without sufficient information to establish a possible link between substance abuse by the employee and the incident;
  • It was not an appropriate use of managerial discretion to order the test;
  • Therefore, the test did not comply with the drug and alcohol policy and with established caselaw on drug testing.

The court found that this was a reasonable conclusion on the part of the board and reaffirmed the reinstatement.

The employer again appealed.

The Court of Appeal Decision

At appeal, the court confirmed that the standard of review for evaluating a labour arbitrator’s decision was reasonableness, and that, given arbitrators’ expertise in labour relations, deference ought to be paid to their legal and factual findings in interpreting collective agreements.

The court found that, in addition to reviewing the employer’s drug and alcohol policy, the arbitration board had also reviewed previous caselaw on the need for management to balance the need for drug testing with the privacy interests of employees and had noted that managers should weigh all the circumstances and consider the fact that drug testing is very invasive before ordering a test.

The court went on to note that, in this case:

There were only 8 employees who were tested.  It would not have caused a significant delay to ask questions of such a small number of persons.  As well, the Employer had previously identified a process correction to prevent manifest errors only days earlier.  Requiring the Employer to ask questions to see if this was the cause of the manifest error does not amount to a requirement that the Employer conclusively evaluate likely causes before testing.  It merely requires minimal steps to be taken by the Employer to establish a possible cause or link and thereby make a decision to apply the Policy.

The court ultimately upheld the finding of the judge on judicial review which had found that:

…the Arbitration Board’s decision was one of the possible reasonable findings for it to make based on the facts and law.  The Arbitration Board’s analysis, together with its legal and factual conclusions, was within the range of acceptable outcomes.  Further, its reasons were justifiable, transparent and intelligible.

In addition, the court specifically noted that where an investigation into a “significant incident” would need to be performed by the employer in the future, it would first require an individualized assessment.

Drug Testing in the Workplace

While this was a decision involving a unionized employer, it has broader implications for all workplaces, including non-unionized workplaces. The law on drug testing in the workplace continues to be in flux. Various employers across the country, notably, Suncor, have attempted to implement randomized drug testing of employees, particularly in safety sensitive workplaces. At present, random blanket testing is not permitted, despite Suncor’s attempt.

Generally,  caselaw has so far determined there is no right to smoke marijuana in the workplace, and that a zero tolerance policy for drugs and alcohol by an employer will stand. This is even when the marijuana has been prescribed for medical usage by a doctor. In the case in question drug use posed a safety issue, although there would still needs to be further investigation as to how it will play to issues of disability where it is not a safety issue.

Important distinctions exist between federally and provincially regulated workplaces, between unionized and non-unionized workplaces, and between safety sensitive and non-safety sensitive workplaces. All of this has been subject to discussion and judicial oversight and the law continues to develop.

The upcoming legalization of marijuana will, undoubtedly, affect these discussions even more, as employers and employees come to terms with a new reality.

This is an issue that will be explored further in these blogs as more information becomes available.

In the meantime, if you have questions about drug use and its interaction with the workplace, contact Petker Campbell Postnikoff. Our employment lawyers have over forty years of experience serving clients on non-union employment law matters and we pride ourselves on bringing clarity and simplicity to complex employment law issues. To speak with our Waterloo employment law lawyers about your legal issue, call us at 519-886-1204 or contact us online.