Random alcohol tests at Irving paper plant shot down by Supreme Court

OTTAWA – The Supreme Court of Canada says an employer who wants to impose random alcohol testing on unionized workers in a dangerous work environment must show it is a reasonable move.

The court ruled that a mandatory random alcohol testing policy imposed by Irving Pulp and Paper at a Saint John, N.B., kraft mill in 2006 was unreasonable and was properly rejected by a labour arbitration board.

In a 6-3 decision on Friday, the justices sided with the Communications, Energy and Paperworkers Union of Canada, which brought a grievance against the Irving policy.

A New Brunswick court overturned the arbitration board’s ruling against the company, but the Supreme Court restored it, saying the board was right to reject the tests because there was no evidence of an alcohol problem at the plant.

In 15 years before the policy was imposed, there were only eight instances in which a worker was found to be under the influence of alcohol and none involved an accident or injury.

In the 22 months the policy was in effect, no one tested positive.

The justices said the applicable standard for judging such matters is reasonableness.

“In the end, the expected safety gains to the employer in this case were found by the board to range ‘from uncertain … to minimal at best’ while the impact on employee privacy was found to be much more severe,” Justice Rosalie Abella wrote for the majority.

“Consequently, the board concluded that the employer had not demonstrated the requisite problems with dangerousness or increased safety concerns such as workplace alcohol use that would justify universal random testing.

“Random alcohol testing was therefore held to be an unreasonable exercise of management rights under the collective agreement. I agree.”

She said there is a substantial body of arbitration jurisprudence built around the issue of management rights and safety, resulting in an approach that looks at proportionality and a balance of interests.

“An employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights. The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise.”

She said there are times when employers can test workers.

“An employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.

“In the latter circumstance, the employee may be subject to a random drug or alcohol testing regime on terms negotiated with the union.”

“But a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace.”

The president of the Communications, Energy and Paperworkers Union of Canada said in a statement Friday that the decision is a victory and helps protect workers’ privacy rights.

“Random alcohol testing is a humiliating invasion of an individual’s privacy that has no proven impact on workplace safety,” said Dave Coles. “Our union’s long-standing position is that the best way to resolve social problems such as alcohol or drug abuse is to address the root cause of the problem.

“Rather than attack the victim, corporate Canada needs to do a better job in offering employee assistance programs, drug education and health promotion programs.”

J.D. Irving Ltd. declined an interview request Friday, but issued a statement saying it respects the Supreme Court’s decision.

“We will be reviewing the decision and have no further comment at this time,” the statement said.

The three dissenting judges said they found the arbitration ruling unreasonable and that it was properly set aside by the lower court.

Justices Marshall Rothstein and Michael Moldaver wrote the dissent, which was also supported by Chief Justice Beverley McLachlin.

They said the arbitration board wrongly balanced the competing interests of privacy and safety.

“The board put its thumb on the scales and upset the careful balance established in the arbitral jurisprudence,” they wrote.

“In so doing, it came to an unreasonable decision. Accordingly, we respectfully dissent from the majority opinion upholding the board’s decision.”

The case attracted a number of interveners, including manufacturers’ and mining associations with a stake in the workplace safety and privacy issues.